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.