Texas Eastern Products Pipeline Company v. Occupational Safety and Health Review Commission, and William E. Brock, Secretary of Labor

827 F.2d 46
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 10, 1987
Docket86-2201
StatusPublished
Cited by21 cases

This text of 827 F.2d 46 (Texas Eastern Products Pipeline Company v. Occupational Safety and Health Review Commission, and William E. Brock, Secretary of Labor) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Texas Eastern Products Pipeline Company v. Occupational Safety and Health Review Commission, and William E. Brock, Secretary of Labor, 827 F.2d 46 (7th Cir. 1987).

Opinions

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. § 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. §§ 551 et seq. (1982). For questions of law the APA on its face mandates de novo review. 5 U.S.C. § 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) [48]*48(“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. § 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. §§ 554(a), 556 & 706(2)(E); 29 U.S.C. §§ 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 avoid[49]*49ed 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

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827 F.2d 46, Counsel Stack Legal Research, https://law.counselstack.com/opinion/texas-eastern-products-pipeline-company-v-occupational-safety-and-health-ca7-1987.