Texas Eastern Products Pipeline Co. v. Occupational Safety and Health Review Com'n

• Decision Date: 10 August 1987
• Docket Number: No. 86-2201,86-2201
• Citation: 827 F.2d 46
• Parties: 13 O.S.H. Cas.(BNA) 1364, 1987 O.S.H.D. (CCH) P 27,990 TEXAS EASTERN PRODUCTS PIPELINE COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and William E. Brock, Secretary of Labor, Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 46

827 F.2d 46

13 O.S.H. Cas.(BNA) 1364, 1987 O.S.H.D. (CCH)

P 27,990

TEXAS EASTERN PRODUCTS PIPELINE COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and William E. Brock, Secretary of Labor, Respondents.

No. 86-2201.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 24, 1987.

Decided July 29, 1987.

As Amended Aug. 10, 1987.

Mary K. Williams, Texas East. Corp., Houston, Tex., for petitioner.

Barbara Werthmann, Dept. of Labor, Ofce. of Solicitor, Washington, D.C., for respondent.

Before WOOD, POSNER and MANION, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Petitioner, Texas Eastern Products Pipeline Company (Texas Eastern), seeks review of a final order of the Occupational Safety and Health Review Commission (Commission). ¹ The order affirmed the issuance of a citation to Texas Eastern by the Occupational Safety and Health Administration (OSHA) for violating a construction safety standard at 29 C.F.R. Sec. 1926.651(i)(l) (1986). ² That standard requires excavated material to be stored at least two feet back from the edge of an excavation. The parties have stipulated that the excavated material at issue in this case was piled up to the edge of the excavation, not two feet back. There is a dispute, however, as to whether or not the OSHA regulation is applicable to the particular type of excavation considered here. ³ Texas Eastern argues that there is a distinction in the regulations between an "excavation" and a "trench" and that the regulation it allegedly offended is not applicable to a "trench," but only to an "excavation." The parties conceded that Texas Eastern's employees were working in a "trench"-type excavation. The penalty assessed was $240.

Our standard of review in this case is governed by the Administrative Procedure Act (APA). 5 U.S.C. Secs. 551 et seq. (1982). For questions of law the APA on its face mandates de novo review. 5 U.S.C. Sec. 706 (1982) ("To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law...."); FTC v. Indiana Federation of Dentists, 477 U.S. 447, 106 S.Ct. 2009, 2015-16, 90 L.Ed.2d 445 (1986). Reviewing courts, however, frequently temper that general mandate by according some deference to an agency's legal interpretations. Although a reviewing court may merely acknowledge a prior agency ruling, e.g., id.; Skidmore v. Swift & Co., 323 U.S. 134, 139-40, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944) (agency's interpretations "do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance"), most often a reviewing court will accord some substantial deference to an agency's interpretation of its own statutes or regulations, NLRB v. Hearst Publications, Inc., 322 U.S. 111, 131, 64 S.Ct. 851, 860, 88 L.Ed. 1170 (1944) (agency's interpretation "is to be accepted if it has 'warrant in the record' and a reasonable basis in the law"); ITEL Corp. v. United States Railroad Retirement Board, 710 F.2d 1243, 1244 (7th Cir.1983) ("A 'reasonable basis' test is appropriate when passing upon an agency's construction of the statutes which it administers.").

In reviewing the Commission's final order for other than purely legal issues, on the other hand, the APA directs that the "reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be unsupported by substantial evidence." 5 U.S.C. Sec. 706(2)(E) (1982). We apply the substantial evidence standard of review, rather than the arbitrary and capricious standard, because the APA requires us to do so when we review an order arising from an adjudicatory hearing held by an administrative agency pursuant to statutory command. 5 U.S.C. Secs. 554(a), 556 & 706(2)(E); 29 U.S.C. Secs. 659(c) & 660(a) (1982). As we have explained previously:

Substantial evidence exists if the record contains "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938). A preponderance of the evidence is unnecessary, as long as "there is a rational connection between the facts found and the choice made." Bloomer Shippers Association v. ICC, 679 F.2d 668, 672 (7th Cir.1982).

International Union of Operating Engineers, Local 150 v. NLRB, 755 F.2d 78, 81 (7th Cir.1985).

We must now examine what the technical differences may be under the regulations between an excavation and a trench, whether the Secretary of Labor's and the Commission's interpretation of the safety standards is entitled to deference, and whether Texas Eastern had fair notice of that interpretation.

For practical purposes the difference between an excavation and a trench is one of width, a trench being a narrow excavation. ⁴ Both, however, may be hazardous. The problem arises in this case because the regulation requiring material to be stored at least two feet from the edge appears with the specific excavation requirements, not the specific trenching requirements, and in its text mentions only excavations, not trenches. The relationship and overlap between the excavating and trenching requirements creates the problem. Texas Eastern contends that the requirements for excavations do not apply to trenches, that only the standards addressed specifically to trenches apply to trenches. The Commission's view of the Secretary's regulations, on the other hand, is that the excavation standards apply equally to trenches, except where a more specific trenching provision applies. ⁵

In interpreting OSHA's regulations we adhere to the general rule that the Secretary of Labor's interpretation of the statute and regulations is entitled to deference if the interpretation is reasonable. In re Metro-East Manufacturing Co., 655 F.2d 805, 810 (7th Cir.1981). Likewise, if the Secretary and the Commission have determined that the standards are all applicable, that finding is entitled to great weight. Wisconsin Electric Power Co. v. OSHRC, 567 F.2d 735, 738 (7th Cir.1978). Our adherence to those principles should not, however, be used as a blanket excuse to overlook OSHA's drafting derelictions lest the good purposes of the safety rules be eroded.

In this particular case the agency's interpretation deserves deference even though the agency could have easily avoided or cured the ambiguity to everyone's advantage. It appears in the texts of the two provisions that excavations and trenches are not mutually exclusive--a trench is merely defined as a particular type of excavation, specifically a narrow one. Consistent with that reading section 1926.652, which contains the specific trenching requirements, sometimes uses both words, "trenches" and "excavation," in common without distinction. ⁶ A hole in the ground is, after all, a hole in the ground no matter what its shape or with whatever other name you may choose to label it.

If we were to interpret the regulations as Texas Eastern would have us do, then a number of safety requirements provided in the excavation section (Sec. 1926.651), concerning, for instance, electrocution, fire, oxygen deficiency, and the storage of material at issue here, would not apply to trenches. This reading would exclude important safety requirements without discernable justification. A trench can be understood to be a certain type of excavation which, because of its narrowness, requires some additional safeguards because of the increased possibility of a workman being trapped by a collapsing wall. D. Federico Co. v. OSHRC, 558 F.2d 614, 617 (1st Cir.1977) (Coffin, C.J., concurring). ⁷ A common sense reading, in spite of the fact that the regulations could be written more clearly, suggests that the general excavation standard is to apply, except where a more particular standard is made "specifically applicable to the same hazard." Brock v. L.R. Willson & Sons, Inc., 773 F.2d 1377, 1380 (D.C.Cir.1985). It is also fundamental to the Occupational Safety and Health Act that it be construed liberally to effectuate its purpose of safe working conditions. 29 U.S.C. Sec. 651(b) (1982); see Whirlpool Corp. v. Marshall, 445 U.S. 1, 11-13, 100 S.Ct. 883, 890-91, 63 L.Ed.2d 154 (1980). This view of the regulations is not entirely a judicial invention. Section 1910.5(c) of the regulations provides specifically that general standards supplement specific standards. ⁸ "[T]he legislative scheme ... contemplates ... that general safety standards will supplement specific safety standards by filling those gaps necessarily remaining after the promulgation of specific standards." Donovan v. Adams Steel Erection, Inc., 766 F.2d 804, 810 (3d Cir.1985). Texas Eastern, however, argues that the trenching and excavation regulations are mutually exclusive. Texas Eastern points out that each of the sections, for instance, contains sidewall shoring requirements, and therefore each section must be considered independent of the other.

Texas Eastern relies on Lloyd C. Lockrem, Inc. v. United States, 609 F.2d 940 (9th Cir.1979), and Kent Nowlin Construction Co. v. OSHRC, 593 F.2d 368 (10th Cir.1979), for its argument that the trenching and excavation standards are mutually exclusive, not cross-applicable. However, at least one other circuit has held that an excavation regulation applies to a trench even while suggesting that the Commission "straighten up its own trenches." D. Federico, 558 F.2d at 617. It is true that the court in Lockrem, in considering a different section of the specific excavation requirements, found "no indication whatsoever" that specific excavation requirements apply to trenches since each set of standards is labelled separately as "specific" standards applicable to that particular category. 609 F.2d at 944. But there is some distinction between Lockrem and the present case. In Lockrem the court took notice of evidence that employers were unaware that the excavation standards were...