Daniel Construction Company

Plain-English summary

Daniel Construction was building a secondary crusher structure on the surface of a mine when OSHA cited it under the general duty clause. The Commission adopted the judge's conclusion that section 4(b)(1) precluded OSHA jurisdiction because MSHA had statutory authority and had promulgated standards covering the working conditions. A temporary appropriations restriction prevented MSHA from spending funds to enforce its rules against certain independent construction contractors at the time of the inspection. That funding restriction did not repeal or suspend the Mine Act, and the Commission's precedent did not permit an inquiry into the adequacy or current level of another agency's enforcement once it had exercised authority through applicable regulations. The serious citation and proposed $490 penalty were vacated.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 653(b)(1) and 29 U.S.C. § 654(a)(1)
• Outcome: Serious general duty citation and proposed $490 penalty vacated.
• Key point: MSHA's applicable mine-safety regulations preempted OSHA jurisdiction even while an appropriations restriction temporarily prevented MSHA enforcement against the contractor.

Full text (OSHRC public release)

Docket No. 82-0668

SECRETARY OF LABOR,

Complainant,

v.

DANIEL CONSTRUCTION COMPANY,

Respondent.

OSHRC Docket No. 82-0668

DECISION

Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and
Health Review Commission under 29 U.S.C.�  661(i), section 12(j) of the Occupational
Safety and Health Act of 1970, 29 U.S.C. �� 651-678 ("the Act"). The
Commission is an adjudicatory agency, independent of the Department of Labor and the
Occupational Safety and Health Administration. It was established to resolve disputes
arising out of enforcement actions brought by the Secretary of Labor under the Act and has
no regulatory functions. See section 10(c) of the Act, 29 U.S.C. � 659(c).

By order dated February 18, 1983, Administrative Law Judge Stanley M.
Schwartz vacated the citation in this case on the ground 04t the Occupational Safety and
Health Administration was precluded from exercising Jurisdiction over the employer because
the Mine Safety and Health Administration had exercised statutory authority over the cited
working conditions.[[1]]

We affirm the judge's decision for the reasons set
forth by him and adopt his opinion as our own.

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: March 24, 1986

SECRETARY OF LABOR,

Complainant,

v.

DANIEL CONSTRUCTION COMPANY,

Respondent.

OSHRC DOCKET NO. 82-0668

Appearances:

Robert A. Fitzo Esq.

Dallas, Texas

For the Complainant.

George A. Harper, Esq.

Greenville, South Carolina

For the Respondent.

DECISION AND ORDER

SCHWARTZ, Judge:

This is a proceeding brought before the Occupational Safety and Health Review
Commission ("The Commission") pursuant to Section 10 of the Occupational Safety
and Health Act of 1970, 29 U.S.C. $651 et seq. ("the OSH Act"). Respondent
contests an alleged serious violation of Section 5(a)(1) of the Act. Following the filing
of a complaint and answer, Daniel filed a notion to dismiss for lack of jurisdiction. The
basis of this notion is that Section 4(b)(1) of the OSH Act preempted OSHA's jurisdiction
over the Respondent. Oral argument was held on November 3, 1982, in Dallas, Texas.

Statutory Background

The OSH Act gave the Secretary of Labor authority over all working conditions
of employees engaged in business affecting commerce except those conditions with respect
to which other federal agencies exercise statutory authority to prescribe or enforce
regulations affecting occupational safety or health. To be exempt an employer must be
covered by another federal act, the policy or purpose of which must be to assure safe and
healthful working conditions for employees. In addition the other federal agency must have
actually exercised its authority to prescribe or enforce occupational safety and health
standards. Dillingham Tug & Barge Corporation, 10 BNA OSHC 1859, 1982 CCH OSHD �
26,166 (Docket No. 77-4143, July 29, 1982). If both elements are satisfied, the 4(b)(1)
exemption is satisfied and OSHA is precluded from exercising jurisdiction over the
worksite.

The Federal Mine Safety and Health Act of 1977, 30
U.S.C. � 801 et. seq. (Mine Act) created the Mine Safety and Health Administration
(MSHA). The policy and purpose of the Mine Act is to assure safe and healthful working
conditions for employees. The coverage of the Mine Act includes "each operator of a
mine," 30 U.S.C. � 803. It also defines "operator" to include independent
contractors performing construction at a mine, 30 U.S.C. �802(d).  There is also no
question MSHA has exercised its authority to prescribe occupational safety and health
standards for sand, gravel, and crushed stone operations (30 CFR Part 56). These standards
apply to the working conditions of independent contractors performing construction on the
surface of mines.

The issue in this case arises because of the passage
of the temporary emergency appropriations bill for fiscal year 1982, signed by President
Reagan on December 15, 1981, Pub. L. No. 97-0092. It contained the following limitation on
MSHA"s authorization to expend funds.

Sec. 132. Notwithstanding any other provision of law,
none of the funds appropriated for the Department of Labor, Mine Safety and Health
Administration shall be obligated or expanded to prescribe, issue, administer or enforce
any standard, rule, regulation or order under the Federal Mine Safety and Health Act of
1977 with respect to any independent construction contractor who is engaged by an operator
for the construction, repair or alteration of structures, facilities, utilities or private
ways or roads located on (or appurtenant to) the surface areas of any coal or other nine.
and whose employees work in. a specifically demarcated area, separate from actual mining
or extraction activities: Provided, that no funds shall be obligated or expended to
prescribe, issue, administer or enforce any standard, rule, regulation or order under the
Federal Mine Safety and Health Act of 1977 on any State or political subdivision thereof.

This limitation was continued in March 1982. Public
Law No. 97-0161, enacted on March 31, 1982 extended the limitation on expenditure of funds
to September 30, 1982. On July 18, 1982, however, President Reagan signed an urgent
supplemental appropriations bill which deleted the restriction.

Therefore. subsequent to July 18, 1982, MSHA could
again expend funds for enforcement of its regulations in the above circumstances.
  However, the issue in this case is not moot. Rather, it must be decided whether
OSHA had jurisdiction to inspect and investigate Respondent's workplace on April 26 and
27, 1982, and issue the subject citation on May 21, 1982, to Daniel. Stated another way.
did MSHA retain its statutory authority of enforcement powers and continue to exercise it
over Daniel's worksite on April 26 and 27, 1982. If not, the citation was appropriately
issued by OSHA and the motion must be denied (Complainant's brief pp. 2-4, 7; Respondent's
brief pp. 2-5).

Facts

The parties have stipulated to the pertinent facts. Daniel Construction
Company was erecting a secondary crusher building on the surface area of a mine owned by
United States Gypsum Company in New Braunfels, Texas. The New Braunfels Quarry and Plant
was a mine within the meaning and definition of Section 3(h) of the Mine Act and had been
assigned Identification number 41-00078 by MSHA. While engaged in surface construction
activities at the New Braunfels Quarry and Plant, Daniel was an operator within the
meaning and definition of Section 3(d) of the Mine Act.

MSHA had promulgated occupational safety and health
standards applicable to the working conditions at the New Braunfels Quarry and Plant.
These regulations entitled "Health and Safety Standards - Sand, Gravel and Crushed
Stone Operations" are published at 30 CFR Part 56. This proceeding involves a
citation issued to Daniel alleging a Section 5(a)(1) violation of the Act. The citation
alleges the violation occurred on April 26, 1982, while Daniel was constructing a
secondary crusher building at the nine (T. 5-6; Respondent's brief pp. 5-6; Complainant's
brief pp. 4- 6).

The questions to be decided are two-fold. First,
whether MSHA retained statutory authority to regulate occupational safety and health of
employees engaged in surface construction at an operating nine during April 1982. If so,
did MSHA continue to exercise its authority to regulate the occupational safety and health
of these employees during April 1982. Both parties have submitted well written and
persuasive briefs. The submissions have been extremely helpful and I have and will utilize
them in resolving the issues set forth above.

Opinion

Retention of Statutory Authority

Both parties agree that Congress can suspend or repeal prior acts and it can
accomplish its purpose by an amendment to an appropriations bill. United States v.
Dickerson, 310 U.S. 554, 555 (1940). However the Supreme Court has repeatedly emphasized
the "cardinal rule . . . that repeals by implication are not favored." Morton v.
Mancari, 417 U.S. 535, 549 (1974); Posadas v. National City Bank, 296 U.S. 497, 503
(1936). In the absence of some affirmative showing of an intention to repeal, the only
permissible justification for a repeal by implication is when the earlier and later
statutes are irreconcilable.

The Court in TVA v. Hill, supra, 437 U.S. at 190-191
explained the rationale for this policy:

The doctrine disfavoring repeals by implication
'applies with full vigor when . . . the subsequent legislation is an appropriations
measure.' Committee for Nuclear Responsibility v. Seaborg, 149 US App DC 380, 382, 463
F.2d 783, 785 (1971) (emphasis added); Environmental Defense Fund v. Froehlke, 473 F.2d
346, 355 (CAB 1972). This is perhaps an understatement since it would be more accurate to
say that the policy applies with even greater force when the claimed repeal rests solely
on an Appropriations Act. We recognize that both substantive enactments and appropriations
measures are 'Acts of Congress,' but the latter have the limited and specific purpose of
providing funds for authorized programs. When voting on appropriations measures,
legislators are entitled to operate under the assumption that the funds will be devoted to
purposes which are lawful and not for any purpose forbidden. Without such an assurance,
every appropriations measure would be pregnant with prospects of altering substantive
legislation, repealing by implication any prior statute which night prohibit the
expenditure. Not only would this lead to the absurd result of requiring Members to review
exhaustively the background of every authorization before voting on an appropriation, but
it would flout the very rules the Congress carefully adopted to avoid this need. House
Rule XXI(2), for instance, specifically provides:

'No appropriation shall be reported in any general appropriation bill, or be in order as
an amendment thereto, for any expenditure not previously authorized by law, unless in
continuation of appropriations for such public works as are already in progress. Nor shall
any provision in any such bill or amendment thereto changing existing law be in order.'
(Emphasis added.)

Complainant does not dispute this issue. It concedes
at page 8 of its brief that the appropriations restriction in the instant case did not
repeal the provisions of the Mine Act relevant to Daniel. I agree and conclude that the
temporary emergency appropriations bills did not repeal or suspend the Mine Act. There was
no amendment by implication. Consequently MSHA retained statutory authority to prescribe
or enforce standards affecting occupational safety and health at Daniel's worksite in
April 1982.

Exercise of Authority

The fundamental issue in this case concerns whether MSHA exercised its authority over
Respondent's worksite in April 1982. Stated another way the question is whether a denial
of enforcement funds to a federal agency (MSHA) given statutory authority to regulate
occupational safety and health results in that agency no longer exercising its authority
within the meaning of Section 4(b)(1) of the Act.

The Secretary contends OSHA is not preempted In the
instant case. It argues that the appropriations restrictions rendered the Mine Act
unenforceable by MSHA with respect to the Respondent. Therefore MSHA no longer exercised
its authority in April 1982. Its position emanates from Pennsuco Cement and Aggregates,
Inc., 80 OSAHRC 47/A2, 8 BNA OSHC 1378, 1980 CCH OSHD � 24,478 (No. 15462, 1980).

Respondent contends that OSHA did not have jurisdiction over Daniel's worksite in April
1982. It argues that MSHA had promulgated standards affecting occupational safety and
health at the time of inspection. Respondent's position is that once another agency has
promulgated regulations, the 4(b)(1) preemption applies. Any inquiry into the
effectiveness of the regulations or into the level of enforcement is precluded. Daniel
relies on, among other cases, Pennsuco Cement and Aggregates,Inc., supra.

There is no question that the exercise required by
another federal agency to trigger the 4(b)(1) exemption has been for that agency to
promulgate rules and regulations addressing the working conditions. The first inquiry is
whether the other agency has promulgated standards affecting occupational safety and
health. That test, as set forth in the stipulated facts. has been met in this case.

Respondent has correctly captured the teachings of
Pennsuco Cement, supra The Commission was dealing with an agency's temporary cessation of
its Inspection activities at an employer's worksite. It hold that "any oversight of
the adequacy of another agency's enforcement activities is beyond the scope of permissible
inquiry under section 4(b)(1)." The Commission found that section 4(b)(1) applied
because: (1) another agency possessed the statutory authority to regulate the safety and
health of employees and (2) the agency had promulgated regulations applicable to the
working conditions. The exemption, as noted above, was applied even though at the time of
inspection the other agency was not enforcing its regulations.

The Secretary relies on a portion of the Pennsuco
decision which, in dictum, referred to an additional test concerning whether there was a
likelihood the other agency would enforce its regulations. The Secretary points to the
following excerpt:

Our conclusion that OSHA is preempted under the
circumstances of this case is consistent with the view expressed by Chairman Cleary in
Texas Eastern Transmission Corp., supra. That opinion concerned a situation in which
'another Federal agency adopts a regulation, but there is no likelihood that the
regulation will be enforced.' Here, however, MESA had actively enforced its regulations
applicable to kilns prior to the accident. Even giving the Secretary the benefit of the
doubt, there was at most a temporary suspension of enforcement inspections, and this
suspension was not communicated to affected employers. Thus, unlike a situation where an
employer has reason to believe that another agency will not enforce its regulations,
Pennsuco had every reason to believe that it continued to be subject to MESA regulations,
and therefore to protect its employees as those regulations specified. An far as Pennsuco
was concerned, it could be inspected by MESA at any time. Indeed, MESA did investigate the
accident that led to this case. Thus, it cannot be said that there was no likelihood MESA
would enforce its regulations under the facts of this case.

This language was apparently inserted to distinguish
Commissioner Cleary's position in Pennsuco from a previous view he expressed In Texas
Eastern Transmission Corp. 75 OSAHRC 88/D9, 3 BNA OSHC 1601, 1975-76 CCH OSHD � 20,092
(No. 4091, 1975). The quoted language accomplished its goal.  I cannot read the cited
excerpt as establishing Commission agreement on a new "likelihood of
enforcement" test when read in context with the entire opinion. Rather, Pennsuco,
applies the established test summarized above.

Consequently the fact that MSHA was precluded from
December 15, 1981, until July 18, 1982, from enforcing the Mine Act at Daniel's worksite
in New Braunfels, Texas is not controlling. MSHA had retained statutory authority for
enforcement and had promulgated regulations covering the situation. I am precluded from
inquiring into the level of enforcement of these regulations by the clear language of the
statutes involved as well as the Commission's interpretation of Section 4(b)(1) of the
OSHA Act. Respondent's notion to dismiss is granted. The Secretary's citation and
complaint are VACATED.

ORDER

On the basis of the foregoing Findings of Fact and Conclusions of Law, it is ORDERED
that:

1. Serious citation number 1 and the proposed penalty of $490 are VACATED.

STANLEY M. SCHWARTZ

Administrative Law Judge

Dated: February 18, 1983

FOOTNOTES:

[[1]] Section 4(b)(1) of the Occupational Safety and Health Act, 29 U.S.C. � 653(b)(1),
provides in pertinent part:

Nothing in this Act shall apply to working conditions of employees with respect to which
other Federal agencies . . . exercise statutory authority to prescribe or enforce
standards or regulations affecting occupational safety and health.