1 of 202 DOCUMENTS

TURNER COMPANY


A. SCHONBEK & CO., INC.


NORANDA ALUMINUM, INC.


GENERAL MOTORS CORP., GM ASSEMBLY DIV.


ALLIED PLANT MAINTENANCE CO. OF OKLAHOMA, INC.


CLEMENT FOOD COMPANY


MILLCON CORPORATION


FWA DRILLING COMPANY, INC.


CCI, INC.


GENERAL ELECTRIC COMPANY


CONSOLIDATED ALUMINUM CORPORATION


THE BRONZE CRAFT CORPORATION


CARGILL, INC.


CHAPMAN CONSTRUCTION CO., INC.


GALLO MECHANICAL CONTRACTORS, INC.


SPECIAL METALS CORPORATION


WILLAMETTE IRON AND STEEL COMPANY


NASHUA CORPORATION


WESTINGHOUSE ELECTRIC CORPORATION


RESEARCH-COTTRELL, INC.


ROCKWELL INTERNATIONAL CORPORATION


NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.


NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.


BUNKOFF CONSTRUCTION CO., INC.


GENERAL MOTORS CORPORATION, FRIGIDAIRE DIVISION


HARRIS BROTHERS ROOFING CO.


GENERAL DIVERS COMPANY


ORMET CORPORATION


R. ZOPPO CO., INC.


COEUR D'ALENE TRIBAL FARM


L. A. DREYFUS COMPANY


CMH COMPANY, INC.


BENTON FOUNDRY, INC.


MICHAEL CONSTRUCTION CO., INC.


WHIRLPOOL CORPORATION


BROWN & ROOT, POWER PLANT DIVISION


MARION POWER SHOVEL CO., INC.


ERSKINE-FRASER CO.


MORRISON-KNUDSEN AND ASSOCIATES


THE BOAM COMPANY


DIC-UNDERHILL, a Joint Venture


C. R. BURNETT AND SONS, INC.; HARLLEE FARMS


STRIPE-A-ZONE, INC.


FORTE BROTHERS, INC.


RAYBESTOS FRICTION MATERIALS COMPANY


TEXLAND DRILLING CORPORATION


THE ANACONDA COMPANY, WIRE AND CABLE DIVISION


SAM HALL & SONS, INC.


VAMPCO METAL PRODUCTS, INC.


LEONE INDUSTRIES, INC.


ASARCO, INC.


DURANT ELEVATOR, A DIVISION OF SCOULAR-BISHOP GRAIN COMPANY


PLUM CREEK LUMBER COMPANY


PLUM CREEK LUMBER COMPANY


STEARNS-ROGER, INC.


FERRO CORPORATION, (ELECTRO DIVISION)


AMERICAN PACKAGE COMPANY, INC.


BROWN & ROOT, INC., POWER PLANT DIVISION


FLEETWOOD HOMES OF TEXAS, INC.


DONALD HARRIS, INC.


A. PROKOSCH & SONS SHEET METAL, INC.; MID-HUDSON AUTOMATIC SPRINKLER COMPANY, INC.


ELECTRICAL CONSTRUCTORS OF AMERICA, INC.


DAYTON TIRE & RUBBER COMPANY (Division of the Firestone Tire & Rubber Company)


ASARCO, INC., EL PASO DIVISION; HUGHES TOOL COMPANY


NAVAJO FOREST PRODUCTS INDUSTRIES


METROPAK CONTAINERS CORPORATION


AUSTIN BUILDING COMPANY


BABCOCK AND WILCOX COMPANY


DARRAGH COMPANY


BABCOCK & WILCOX COMPANY


OTIS ELEVATOR COMPANY


R. ZOPPO COMPANY, INC.


LUTZ, DAILY & BRAIN - CONSULTING ENGINEERS


PENNSYLVANIA POWER & LIGHT CO.


HARSCO CORPORATION, d/b/a PLANT CITY STEEL COMPANY


NORTHWEST AIRLINES, INC.


INDEPENDENCE FOUNDRY & MANUFACTURING CO., INC.


GENERAL MOTORS CORPORATION, INLAND DIVISION


WELDSHIP CORPORATION


S & S DIVING COMPANY


SNIDER INDUSTRIES, INC.


NATIONAL STEEL AND SHIPBUILDING COMPANY


MAXWELL WIREBOUND BOX CO., INC.


CONTINENTAL GRAIN COMPANY


MISSOURI FARMER'S ASSOCIATION, INC., MFA BOONVILLE EXCHANGE; MFA, INC., d/b/a MFA GRAIN DIVISION; DESERT GOLD FEED COMPANY


CAPITAL CITY EXCAVATING CO., INC.


GAF CORPORATION


PPG INDUSTRIES (CARIBE) a Corporation


DRUTH PACKAGING CORPORATION


SOUTHWESTERN ELECTRIC POWER COMPANY


TUNNEL ELECTRIC CONSTRUCTION CO.


WEATHERBY ENGINEERING COMPANY


JOHNSON STEEL & WIRE CO., INC.


AUSTIN ROAD CO.


MAYHEW STEEL PRODUCTS, INC.


LADISH CO., TRI-CLOVER DIVISION, a Corporation


PULLMAN POWER PRODUCTS, INC.


NATIONAL ROOFING CORPORATION


OSCO INDUSTRIES, INC.


HIGHWAY MOTOR COMPANY, d/b/a PARK PRICE MOTOR COMPANY


S.J. GROVES AND SONS COMPANY


CAR AND TRUCK DOCTOR, INC.


PRESTRESSED SYSTEMS, INC.


TEXACO, INC.


GEORGIA HIGHWAY EXPRESS, INC.


RED LOBSTER INNS OF AMERICA, INC.


SUNRISE PLASTERING CORP.


STONE & WEBSTER ENGINEERING CORPORATION


H.B. ZACHRY COMPANY (INTERNATIONAL)


NATIONAL INDUSTRIAL CONSTRUCTORS, INC.


BUSHWICK COMMISSION COMPANY, INC.


CIRCLE T DRILLING CO., INC.


J.L. FOTI CONSTRUCTION COMPANY, INC.


TEXACO, INC.


KENNETH P. THOMPSON CO., INC.


HENRY C. BECK COMPANY


HEATH & STICH, INC.


FARMERS EXPORT COMPANY


FOSTER AND KLEISER


TURNER WELDING & ERECTION CO., INC.


TRI-CITY CONSTRUCTION CO.


THE DURIRON COMPANY, INC.


SAMSON PAPER BAG CO., INC.


MEL JARVIS CONSTRUCTION COMPANY, Inc.


MIDWEST STEEL ERECTION, INC.


GEISLER GANZ CORPORATION


NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY


NATIONAL MANUFACTURING COMPANY


WALLACE ROOFING COMPANY


REYNOLDS METALS COMPANY, INC.


UNIVERSAL ROOFING AND SHEET METAL COMPANY, INC.


SUFFOLK COUNTY CONTRACTORS, INC.


NORANDA ALUMINUM, INC.


ROOFING SYSTEMS CONSULTANTS, A DIVISION OF BIT U TECH, INC.


GENERAL ELECTRIC COMPANY


SERVICE SPECIALTY, INC.


ECCO HIGH FREQUENCY ELECTRIC CORP.


HENRY C. BECK COMPANY


REPUBLIC ROOFING CORPORATION


EASLEY ROOFING & SHEET METAL CO., INC.


MIDDLETOWN VOLKSWAGEN, INC.


RICHARD ROTHBARD, INC.


AUTOMATIC SPRINKLER CORPORATION OF AMERICA


PENNSUCO CEMENT AND AGGREGATES, INC.


AMFORGE DIVISION, ROCKWELL INTERNATIONAL


MASSMAN-JOHNSON (Luling), a joint venture; MASSMAN CONSTRUCTION CO.; AL JOHNSON CONSTRUCTION CO.


GENERAL MOTORS CORPORATION, CENTRAL FOUNDRY DIVISION

OSHRC Docket No. 78-2696

Occupational Safety and Health Review Commission

April 30, 1980

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

John C. Nangle, Associate Regional Solicitor, USDOL

Wallett Bancroft Rogers, General Motors Corp., for the employer

Emmett Elliott, Health & Safety Representative, Local 653, UAW, for the employees

OPINION:

DECISION

BY THE COMMISSION:

This case is before the Commission on interlocutory appeal of a ruling by Administrative Law Judge Louis J. Rubin. Judge Rubin denied a motion by General Motors Corporation (GMC) to dismiss a failure-to-correct notification n1 issued by the Secretary concerning the abatement of violations at one of GMC's plants in Michigan. The basis of GMC's motion is that the Secretary lacked authority to conduct the reinspection and therefore cannot validly proceed with the failure-to-correct action because, by certain federal regulations and an agreement with the State of Michigan, the Secretary relinquished the necessary enforcement authority to the state when the state's safety and health plan became operational. For the reasons discussed below, we disagree with GMC and find that the judge properly denied GMC's motion to dismiss. We remand for further [*2] proceedings.

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n1 The issuance of a failure-to-correct notification is authorized by Section 10(b) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 (the Act), which reads:

(b) If the Secretary has reason to believe that an employer has failed to correct a violation for which a citation has been issued within the period permitted for its correction (which period shall not begin to run until the entry of a final order by the Commission in the case of any review proceedings under this section initiated by the employer in good faith and not solely for delay or avoidance of penalties), the Secretary shall notify the employer by certified mail of such failure and of the penalty proposed to be assessed under section 17 by reason of such failure, and that the employer has fifteen working days within which to notify the Secretary that he wishes to contest the Secretary's notification or the proposed assessment of penalty. If, within fifteen working days from the receipt of notification issued by the Secretary, the employer fails to notify the Secretary that he intends to contest the notification or proposed assessment of penalty, the notification and assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency.

29 U.S.C. 659(b).

[*3]

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I

The interrelationship between the dates and terms of different documents is essential to an understanding of this case. Thus, a chronology of events with a discussion of the relevant documents follows.

On March 18, 1974, the Secretary issued a one-item nonserious citation alleging 46 separate instances of GMC's noncompliarce with the health standard at 29 C.F.R. 1910.93(c) n2 by its failure to keep respirable dust below the specified threshold limit value in certain designated areas of a Pontiac Motor Division plant in Pontiac, Michigan. A January 15, 1975, final abatement date was set. On March 29, 1974, the Secretary issued an amended citation changing the final abatement date to January 15, 1976. GMC did not file a notice of contest, and the amended citation became a final order of the Commission under section 10(a) of the Act, 29 U.S.C. 659(a).

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n2 Section 1910.93(c) has since been recodified to 1910.1000(c).

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At the [*4] time of the March 29, 1974, amended citation, the Secretary, as opposed to the State of Michigan, exercised exclusive responsibility under the Act for the occupational safety and health of employees in the state. Section 18 of the Act, 29 U.S.C. 667, provides for a state to develop and enforce a state occupational safety and health plan subject to the approval of the Secretary. Section 18(e) n3 further provides that "[a]fter the Secretary approves a State plan. . . he may, but shall not be required to, exercise his authority under sections 8, 9, 10, 13, and 17 with respect to comparable standards promulgated under section 6. . . [until the Secretary] determines, on the basis of actual operations under the State plan, that the criteria set forth in subsection (c) are being applied, but he shall not make such determination for at least three years after the plan's approval under subsection (c)." To implement this section of the Act, on June 20, 1974, the Secretary published the regulation at 29 C.F.R. 1954.3(b) which states, among other things, that when the state safety and health plan becomes operational "the State will conduct all enforcement activity. . . in all issues where [*5] the State is operational." n4

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n3 Section 18(e) of the Act, 29 U.S.C. 667(e), states:

(e) After the Secretary approves a State plan submitted under subsection (b), he may, but shall not be required to, exercise his authority under sections 8, 9, 10, 13, and 17 with respect to comparable standards promulgated under section 6, for the period specified in the next sentence. The Secretary may exercise the authority referred to above until he determines, on the basis of actual operations under the State plan, that the criteria set forth in subsection (c) are being applied, but he shall not make such determination for at least three years after the plan's approval under subsection (c). Upon making the determination referred to in the preceding sentence, the provisions of sections 5(a)(2), 8 (except for the purpose of carrying out subsection (f) of this section), 9, 10, 13, and 17, and standards promulgated under section 6 of this Act, shall not apply with respect to any occupational safety or health issues covered under the plan, but the Secretary may retain jurisdiction under the above provisions in any proceeding commenced under section 9 or 10 before the date of determination.

n4 The regulation at 29 C.F.R. 1954.3(b) states:

Part 1954 - Procedures for the Evaluation and Monitoring of Approved State Plans

* * *

1954.3 Exercise of Federal discretionary authority.

* * *

(b) Guidelines for determining the appropriate level of Federal enforcement. In light of the requirements of 29 CFR Part 1902 as well as the factors mentioned in paragraph (a)(3) above, the following guidelines for the extent of the exercise of discretionary Federal authority have been determined to be reasonable and appropriate. When a State plan meets all of these guidelines it will be considered operational, and the State will conduct all enforcement activity including inspections in response to employee complaints, in all issues where the State is operational. Federal enforcement activity will be reduced accordingly and the emphasis will be placed on monitoring State activity in accordance with the provisions of this part.

[*6]

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Pursuant to section 18(e) of the Act and 29 C.F.R. 1954.3(b), the Secretary and the State of Michigan entered into an agreement on January 6, 1977, for the purpose of specifying the respective enforcement responsibilities of the Secretary and the state under the state plan. n5 One particularly stated purpose was to "set forth the scope of the exercise of Federal authority under section 18(e) of the Act in the State with respect to occupational safety and health standards promulgated under Section 6 of the Act." To this end, paragraph 6 n6 of the agreement states that "[f]ederal enforcement authority will not be initiated" with regard to the issues covered by the Secretary's safety and health standards at Parts 1910 and 1926 where state standards are operational. Paragraph 7 n7 states that when a state official makes an inspection of an employer and observes a condition which has not been corrected as required by a prior federal citation, the state official shall refer the violation to the Secretary's area office for appropriate federal action. Paragraph 8 n8 specifies that federal responsibility [*7] will continue for certain matters, including the follow-up inspection of employers who have received certain citations from the Secretary; subpart e.l., of paragraph 8, however, ties such federal responsibility to citations having abatement dates extending beyond the date of state assumption of inspection responsibility. Those follow-up inspections are, moreover, restricted to the particular condition and abatement requirement specified in the earlier citation.

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n5 See particularly 29 C.F.R. 1954.3(f)(1) which states:

(f)(1) Procedural agreements. A determination as to the operational status of a State plan shall be accompanied by an agreement with the State setting forth the Federal-State responsibilities as follows: (i) Scope of the State's operational status including the issues excluded from the plan, the issues where State enforcement will not be operational at the time of the agreement and the dates for commencement of operations; (ii) procedures for referral, investigation and enforcement of employee requests for inspections; (iii) procedures for reporting fatalities and catastrophes by the agency which has received the report to the responsible enforcing authority both where the State has and has not adopted the requirement that employers report as provided in 29 CFR 1904.8; (iv) specifications as to when and by what means the operational guidelines of this section were met; and (v) provision for resumption of Federal enforcement activity for failure to substantially comply with this agreement, or as a result of evaluation or other relevant factors.

n6 Paragraph 6 of the agreement reads:

In accordance with the Assistant Secretary's finding that the State has achieved operational status, under Section 18(e) of the Act, Federal enforcement authority will not be initiated with regard to Federal occupational safety and health standards with respect to the issues covered under 29 CFR Parts 1910 and 1926 where State standards are in effect and operational, except as provided in 8.b. and 8.c. below.

n7 Paragraph 7 of the agreement reads:

In the event that a State safety officer or industrial hygienist makes an inspection of an employer formerly inspected by an OSHA Compliance Officer and observes a condition which has not been corrected pursuant to a prior OSHA citation, the State representative shall refer the violation to the OSHA Area Office in Detroit, Michigan, for appropriate Federal action.

n8 Paragraph 8 of the agreement reads:

8. Federal responsibility under the Act will continue to be exercised with regard to:

a. Complaints to OSHA about violations of Section 11(c) of the Act (employment discrimination);

b. Enforcement of Federal standards such as temporary emergency standards until such time as the State shall have adopted such standards, in accordance with 29 CFR Part 1953;

c. Enforcement of standards contained in 29 CFR Parts 1915, 1916, 1917, 1918, and 1919 on the U.S. navigable waters, including dry docks, graving docks, and marine railways;

d. Investigation and inspection for the purpose of carrying out the Assistant Secretary's monitoring obligations under Sections 18(e) and (f) of the Act;

e. Abatement dates from OSHA-issued citations, which extend beyond the date of State assumption of inspection responsibility;

1. In these situations, only OSHA compliance officers will conduct follow-up inspections which will be restricted to the particular condition that was the subject of the initial citation and abatement requirement.

2. If, in the course of such follow-up inspections, the OSHA compliance officer observes other new violations of standards for which the State has assumed responsibility, the OSHA compliance officer will note those violations for referral to the State in accordance with the procedure in the "State Program Performance Monitoring Guide."

[*8]

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On March 22, 1977, the Secretary published in the Federal Register (42 Fed. Reg. 15411) the regulation at 29 C.F.R. 1952.262 n9 declaring the Michigan plan operational, effective retroactively to January 6, 1977. According to the background statement appearing in the Federal Register, the federal-state agreement was incorporated as part of the Michigan plan. n10 Section 1952.262 specifically refers to the agreement, and consistent with paragraph 6, note 6 supra, provides that "discretionary Federal enforcement activity under section 18(e) of the Act. . . will not be initiated with regard to Federal occupational safety and health standards in issues covered under 29 C.F.R. Part 1910 and 29 C.F.R. Part 1926."

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n9 Subpart T - Michigan

* * *

1952.262 Level of Federal enforcement.

Pursuant to 1902.20(b)(1)(iii) and 1954.3 of this chapter under which an agreement has been entered into with Michigan, effective January 6, 1977, and based on a determination that Michigan is operational in the issues covered by the Michigan occupational safety and health plan, discretionary Federal enforcement activity under section 18(e) of the Act (29 U.S.C. 667(e)) will not be initiated with regard to Federal occupational safety and health standards in issues covered under 29 CFR Part 1910 and 29 CFR Part 1926. The U.S. Department of Labor will continue to exercise authority, among other things, with regard to: complaints filed with the U.S. Department of Labor about violations of the discrimination provisions of section 11(c) of the Act (29 U.S.C. 660(c)); Federal standards promulgated subsequent to the agreement where necessary to protect employees, as in the case of temporary emergency standards promulgated under section 6(c) of the Act (29 U.S.C. 655(c)), in the issues covered under the plan and the agreement until such time as Michigan shall have adopted equivalent standards in accordance with Subpart C of 29 CFR Part 1953; standards contained in 29 CFR 1910.15 through 1910.19, which issues have been specifically excluded from coverage under the Michigan plan; and investigations and inspections for the purpose of the evaluation of the Michigan plan under sections 18(e) and (f) of the Act (29 U.S.C. 667(e) and (f)). The Regional Administrator for Occupational Safety and Health will make a prompt recommendation for resumption of the exercise of Federal enforcement authority under section 18(e) of the Act (29 U.S.C. 667(e)) whenever, and to the degree, necessary to assure occupational safety and health protection to employees in the State of Michigan.

n10 See also 29 C.F.R. 1954.3(f), note 5 supra.

[*9]

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In March, 1978, the Secretary conducted a reinspection of GMC's Pontiac, Michigan plant to ascertain whether the violations alleged in the March 29, 1974 amended citation had been abated as required, i.e., by January 15, 1976. Subsequently, on June 2, 1978, the Secretary issued to GMC a notification of failure to correct certain of the violations. GMC timely contested the notification and, following the filing of the Secretary's complaint, GMC moved to dismiss the failure-to-correct notification on the basis that the Secretary lacked authority to conduct the reinspection and pursue the failure-to-correct action.

II

Before Judge Rubin, GMC asserted in its dismissal motion that, by the terms of section 1954.3(b), the Secretary determined to discretionarily relinquish his authority to conduct all enforcement activity in states with operational safety and health plans. n11 Therefore, GMC argued, only Michigan had the authority to conduct enforcement activity at the time this case arose because the state safety and health plan was operational. GMC additionally argued that under paragraph 8.e.l. of [*10] the federal-state agreement, the Secretary only had the authority to conduct follow-up inspections for OSHA-issued citations where the abatement dates fell after the date on which the Michigan plan became operational. See note 8 supra. Since the January 15, 1976, abatement date involved here did not extend beyond the January 6, 1977, date on which the Michigan plan became operational, then, according to GMC's argument, the Secretary did not retain authority to conduct the inspection.

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n11 See note 4 supra, setting forth 1954.3(b); see also the terms of section 18(e) of the Act, note 3 supra.

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The Secretary argued before the judge that GMC lacked standing to invoke the federal-state agreement as a jurisdictional defense because the agreement was entered into for the administrative convenience of the Secretary and the State of Michigan. The Secretary also stated that he had not given "final" approval to the Michigan state plan under section 18(e) of the Act, note 3 supra; he had only granted operational [*11] status to the plan. That operational determination was accompanied by an agreement with the state setting forth certain federal-state responsibilities. Paragraphs 7 and 8(c) of the agreement, notes 7 and 8 supra, the Secretary argued, make it clear that he has authority to issue the failure-to-correct notification in this case.

Judge Rubin denied GMC's motion, essentially concluding that paragraph 7 of the federal-state agreement was determinative of the issue. He stated that the agreement requires Michigan to refer to the Secretary any condition that a state inspector observes which has not been corrected pursuant to a prior citation issued by the Secretary. See paragraph 7 of the agreement, note 7 supra. The judge reasoned that federal, not state, jurisdiction was clearly contemplated in failure-to-correct cases. He held that federal authority to inspect is a necessary adjunct to federal jurisdiction. Therefore, he inferred the Secretary retained this inspection authority. The judge also emphasized that the federalstate agreement does not purport to cover each and every right and duty of the respective parties.

On interlocutory appeal, GMC essentially reaffirms [*12] the arguments presented initially in support of its motion to dismiss before Judge Rubin. In support of the judge's ruling, the Secretary contends that GMC's arguments are based only on GMC's interpretation of the Act and the Act's implementing regulations, whereas the question should be whether the Secretary's interpretation of the Act and his enforcement regulations is reasonable. n12 The Secretary notes that his interpretation would permit the enforcement activity involved here.

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n12 The Secretary states that the courts have held that the Secretary's interpretations of the Act are entitled to deference even if other reasonable interpretations are possible, citing, inter alia, Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974). The Secretary also states that the courts have held that his allocation of enforcement resources is virtually unreviewable, citing Synthetic Organic Chemical Manufacturers Association v. Brennan, 503 F.2d 1155 (3rd Cir. 1974).

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The Secretary states that section [*13] 18(e), note 3 supra, gives him such authority as he chooses to exercise prior to final approval of a state plan. Accordingly, unless the Secretary relinquishes this statutory authority by administrative rule or agreement, the Secretary retains the authority. Section 1952.262 does not specifically relinquish to Michigan the Secretary's statutory authority to make follow-up inspections. Moreover, section 1952.262, the Secretary argues, does not impliedly prohibit the Secretary from exercising his authority to make follow-up inspections. It bars only the initiation of federal enforcement activity, and a follow-up inspection does not constitute the initiation of enforcement activity. As to the agreement, the Secretary contends, paragraph 6 only prohibits the Secretary from initiating federal enforcement activity under Parts 1910 and 1926 (with two inapplicable exceptions), n13 while paragraph 7 "reserves . . . follow-up inspections for federal action" and effectively prohibits state safety officers from conducting such enforcement activity. n14 Thus, the Secretary concludes, paragraph 8.e.1. of the agreement cannot be read to indicate, as GMC argues, that the Secretary simply [*14] abandoned any enforcement of OSHA abatement dates set for a time before the Michigan plan became operational.

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n13 See note 6 supra.

n14 See note 7 supra.

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The parties also have argued the question of whether GMC has standing to assert rights under the federal-state agreement. Contending that GMC has no standing, the Secretary asserts that the agreement only purports to set forth the enforcement responsibilities of the Secretary and Michigan; the agreement does not purport to give rights to individual employers or any non-signatories. An individual employer, therefore, cannot rely on the agreement as a bar to otherwise valid enforcement activity. Opposing this argument, GMC asserts that an employer has standing to rely on the agreement because it implements section 18(e) of the Act and the Secretary's regulation at section 1954.3(b). GMC argues that the Secretary is bound by his regulations and, therefore, correspondingly bound by the agreement with Michigan.

The express purpose of the agreement between [*15] the Secretary and the State of Michigan is to delineate the respective enforcement responsibilities of these two levels of government. This agreement was incorporated by reference into the regulation approving the Michigan state plan. 29 C.F.R. 1952.262. n15 In addition, the agreement is referred to in the background statement of the Secretary's publication pertaining to the level of federal enforcement under the state plan. 42 Fed. Reg. 15411. In response to GMC's claim that the Secretary's failure-to-correct notification is without legal authority under the agreement, the Secretary claims that GMC has no standing to enforce the terms of this agreement. We do not interpret GMC's claim as action to enforce the federal-state agreement. If it were, the Commission would be without statutory authority to adjudicate that claim. 29 U.S.C. 659(c). Rather, GMC is defending against the notification for allegedly violative conduct on the ground that the Secretary is without legal authority to issue the notification in this case. GMC's standing is its status as a defending party in the action commenced by the Secretary pursuant to his enforcement authority under the [*16] Act. If the Secretary has relinquished his enforcement authority under section 18 of the Act, the notification would be legally invalid. A defending party clearly has standing to raise the defense that the enforcement action brought against it is beyond the legal authority of the enforcing agency. NLRB v. Highland Park Manufacturing Co., 341 U.S. 322, 325-26 (1951); 3 K. Davis, Administrative Law Treatise, 22.08 at 240 (1958). In this case, GMC has standing to raise the validity of the Secretary's enforcement authority to issue a failure-to-correct notification to GMC. 29 U.S.C. 659(c). n16

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n15 See note 9 supra.

n16 Chairman Cleary agrees that GMC may defend against the failure-to-correct notification on the basis that the Secretary purportedly relinquished the authority to issue the notification. He does not, however, agree that an employer necessarily has standing to raise any issue in defense to an enforcement action commenced by the Secretary simply by virtue of being a defending party. On this point, the discussion of "standing" in the text is simply too broad. The question of standing is sometimes intertwined with the question of whether a person is asserting its own substantive right or the substantive right of another person. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 428 (1978). Regardless of how the question is framed, however, a person can only assert "his own legal rights and interests rather than . . . the rights of third parties." Id., 99 S.Ct. at 428. In this case, the federal-state agreement was intended to limit the authority of the Secretary to enforce the Act against private employers in Michigan, and the references to the agreement in the Federal Register demonstrate that the Secretary intended private employers such as GMC to have notice of, and therefore to rely on, the agreement. Thus, it is appropriate for GMC to raise the issue regarding the Secretary's authority to issue the failure-to-correct notification since it relates to the company's own rights and not to any right the State of Michigan may possess under the agreement.

[*17]

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Plainly, as both parties essentially agree, section 18(e) of the Act gives the Secretary discretion to decide whether and to what extent he should exercise his enforcement authority during the time between initial and final approval of a state plan. The section states that for this interim period, which must extend for at least three years, the Secretary "may, but shall not be required to exercise his authority under 8, 9, 10, 13, and 17 with respect to comparable standards promulgated under section 6 . . . ." The first question presented by GMC's arguments is whether in section 1954.3(b), pertaining to the level of federal enforcement once a state plan becomes operational, the Secretary discretionarily relinquished his right to exercise enforcement authority over activities like the failure-to-correct notification issued here. n17 As we have indicated, section 1954.3(b) provides, in part, that "[w]hen a State plan meets all of these guidelines it will be considered operational, and the State will conduct all enforcement activity including inspections in response to employee complaints, in all issues [*18] where the state is operational." While GMC reads this to mean that literally "all enforcement activity" is allocated to the state once a state plan is operational, we think the provision indicates only that the state will conduct all enforcement activity allocated to it by the federal-state agreement, since the agreement describes the "issues where the state is operational."

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n17 The United States Court of Appeals for the District of Columbia Circuit has indicated that initial approvals of state plans "do not necessarily cede federal jurisdiction to the state nor affect the federal enforcement program's operation within the state. Instead, there is a concurrent jurisdiction period of at least three years during which the Secretary monitors the state program for compliance with 18(c) and may enforce the federal program." AFL-CIO v. Marshall, 570 F.2d 1030, 1034 (D.C. Cir. 1978).

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Section 1954.3 as a whole only purports to set forth general "guidelines" on how the Secretary's authority will be exercised. Subpart [*19] (b) of section 1954.3 is introduced by the phrase, "Guidelines for determining the appropriate level of Federal enforcement." Moreover, the Secretary, in exercising discretion under section 18(e) of the Act, must be guided by the general purpose of the Act. As expressed in section 2(b) of the Act, note 18 infra, that purpose is to "assure so far as possible every working man and woman in the Nation safe and healthful working conditions." Implementation of that statutory purpose does of course include the consideration that states should assume the fullest responsibility for enforcement of their own safety and health laws. n18 However, it is fundamentally inconsistent with the Act's purpose for us to conclude that the Secretary has chosen to abandon his efforts to require compliance with an abatement date set for a federally-issued citation in a state where a state plan has become operational.

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n18 Section 2(b)(11) of the Act reads:

(b) The Congress declares it to be its purpose and policy, through the exercise of its powers to regulate commerce among the several States and with foreign nations and to provide for the general welfare, to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources . . .

(11) by encouraging the States to assume the fullest responsibility for the administration and enforcement of their occupational safety and health laws by providing grants to the States to assist in identifying their needs and responsibilities in the area of occupational safety and health, to develop plans in accordance with the provisions of this Act, to improve the administration and enforcement of State occupational safety and health laws, and to conduct experimental and demonstration projects in connection therewith . . .

[*20]

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Additionally, section 1954.3(b) must be read with section 1954.3(f)(1), note 5 supra, which provides that a determination as to the operational status of a plan shall be accompanied by a specific agreement setting forth, among other things, the scope of a state's operational status. Thus, the language of section 1954.3(b) that allocates to a state whose plan is considered operational the exercise of "all enforcement activity . . . in all issues where the State is operational" refers to the provisions of the agreement and the particular regulations pertaining to the state plan. This is generally confirmed by the fact that the phrase "the State will conduct all enforcement activity" is followed by a sentence which begins "(f)ederal enforcement activity will be reduced accordingly . . ." Thus, the language of section 1954.3(b) on which GMC relies should not be read as a grant of exclusive enforcement authority to the State. It merely indicates that a state may conduct enforcement within the entire range of issues in which it is operational. Accordingly, we conclude that section 1954.3(b) does not [*21] preclude the Secretary from enforcing final orders under the Act. 29 U.S.C. 659(a).

The federal-state agreement, upon which GMC also relies, was signed after the date on which section 1954.3 became effective. The effective date of section 1954.3 was June 20, 1974; the agreement was signed on January 6, 1977. Consistent with section 1954.3(f), the agreement provides a more specific writing from which to determine how OSHA intended to structure its relationship with the State of Michigan. Moreover, the agreement suggests, as discussed below, that the Secretary did not intend the section 1954.3(b) language "all enforcement activity . . . in all issues where the State is operational" to preclude him from enforcing the final orders of the Commission by issuance of failure-to-correct notifications.

In view of the provisions of paragraphs 6 and 7 of the agreement, notes 6 and 7 supra, we reject GMC's argument that paragraph 8.e.1., note 8 supra, restricts federal enforcement responsibility for federally-issued citations to those having abatement dates which extend beyond the date that the state assumed inspection responsibility. Because paragraph 6 provides that federal [*22] enforcement authority, with two inapplicable exceptions, will not be "initiated" with respect to Part 1910 and 1926 issues where state standards are operational, the indication is that only the state will enforce the abatement of conditions which never were the subject of a prior federal citation. Consistent with this interpretation, paragraph 7 precludes the state from itself proceeding on any uncorrected conditions cited in a prior federal citation by directing state inspectors who observe these conditions to refer "the violation" to OSHA for "appropriate Federal action." Paragraph 8 addresses other specific areas of enforcement responsibility retained by OSHA, including the right to conduct follow-up inspections where an earlier citation contained an abatement date extending beyond the date on which Michigan assumed inspection responsibility. See paragraph 8.e.1., note 8 supra. But paragraph 11 n19 of the agreement states that the agreement does not list all the rights and duties of the parties.

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n19 Paragraph 11 of the agreement reads:

This agreement does not cover each and every right and duty of the respective parties. However, it does describe in broad terms the general agreement between the State and OSHA as to the extent of Federal compliance activity within the State during the term of the agreement.

[*23]

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The fact that paragraph 7 does not affirmatively state that the Secretary may reinspect to enforce abatement dates occurring prior to the date on which Michigan assumed inspection authority does not mean that the Secretary relinquished reinspection and enforcement authority in this area. The federal government had exclusive authority to inspect and proceed against employers for failure-to-correct violations in cases like this one before the state plan became operative. In any new declaration of a state's operative status, therefore, the Secretary must specifically relinquish this authority. The Secretary has not relinquished that authority in paragraphs 6 and 7 of the federal-state agreement. Moreover, that full federal authority over federally-issued citations was in fact retained here is essentially acknowledged by the parties to the agreement in its paragraph 7 where they indicate that failure-to-correct situations involving such citations must be referred to the Secretary.

The subject of paragraph 8 of the agreement is different and more limited. Obviously, some of the abatement dates designated [*24] in prior federal citations would fall after the date on which the Michigan plan was declared operational. Apparently to preclude any misinterpretation concerning the authority to enforce such abatement dates, paragraph 8.e.1. of the agreement specifies that the Secretary retains such inspection authority even after the state plan is operational. Thus, to the extent there is a general indication concerning the Secretary's authority to enforce abatement dates for federally-issued citations, we look to paragraph 7 of the agreement. Paragraph 8.e.1. of the agreement does not diminish this general authority, but merely clarifies it for a specific factual circumstance.

The record does not indicate, and the parties do not contend, that the Secretary has provided his Michigan counterpart with records of the federal agency's inspections in the state. Without these records it would only be a chance occurrence that the state 1) inspected an employer that had previously been inspected by the Secretary, 2) detected an instance of noncompliance with the same safety or health standard that had previously been ordered corrected by a federal citation, 3) learned that the employer had failed to [*25] correct the noncomplying condition within the time required by the prior federal citation, and 4) referred the matter to the Secretary. However, the Secretary does specifically direct a portion of his enforcement efforts to conduct follow-up inspections. To read into paragraph 7 and the entire federal-state agreement an intent to leave this important aspect of the Secretary's enforcement policy entirely to chance would be erroneous and inconsistent with the Act's purpose of assuring employees safe and healthful working conditions.

After the agreement was signed by the parties, the Secretary published section 1952.262 and made its effect retroactive to the same January 6, 1977 date on which the federal-state agreement was signed. GMC argues that this regulation precludes the Secretary from conducting compliance inspections. We disagree. First, section 1952.262 declares the state plan operational and describes the level of federal enforcement under the plan. As mentioned earlier, the federal-state agreement was incorporated as part of the plan. See 42 Fed. Reg. 15411 (Background). Thus, we are unable to conclude that section 1952.262 is intended to diminish the authority [*26] allocated to the Secretary in the agreement, and we have already determined that the agreement does not preclude the Secretary from enforcing prior federal citations that have become final orders. Second, section 1952.262 states that federal enforcement activity will not be initiated with regard to federal standards in issues covered under Parts 1910 and 1926. We agree with the Secretary that a follow-up inspection does not constitute the initiation of enforcement activity.

Accordingly, the Commission affirms Judge Rubin's order denying GMC's motion to dismiss. We remand the case to the judge for further proceedings.

DISSENTBY: BARNAKO

DISSENT:

BARNAKO, Commissioner, Dissenting:

The question presented by this case is whether the failure-to-correct notification now before us was issued in violation of the provisions of an agreement concerning the Michigan state OSHA plan and the regulations governing that agreement. I agree with my colleagues that General Motors has standing to raise this question for the reasons stated in the text of the lead opinion. Unlike my colleagues, however, I find that the failure-to-correct notification violates the agreement and the regulations. Therefore, I would [*27] grant General Motors' motion to dismiss the notification on that basis.

I.

One of the enumerated purposes of the Occupational Safety and Health Act of 1970 n1 is:

encouraging the States to assume the fullest responsibility for administration and enforcement of their occupational safety and health laws by providing grants to the States to assist in identifying their needs and responsibilities in the area of occupational safety and health, to develop plans in accordance with the provisions of this Act, to improve the administration and enforcement of State occupational safety and health laws, and to conduct experimental and demonstration projects in connection therewith; n2

This purpose is effectuated by section 18 of the Act, n3 which permits states to develop and operate their own occupational safety and health programs if they are approved by the Secretary as meeting certain minimum criteria set forth in section 18(c). n4 For the Secretary to grant initial approval, a state plan need not be "fully baked;" n5 it may be developmental in nature and proceed through a number of intermediate steps before it is fully implemented. n6

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n1 29 U.S.C. 651-678 (herein denoted "the Act").

n2 29 U.S.C. 651(b)(11).

n3 29 U.S.C. 667. The purpose of encouraging states to enforce their own occupational safety and health laws also is effectuated in part by section 23 of the Act, 29 U.S.C. 672, which provides for grants to fund up to 50 percent of the cost of such enforcement.

n4 Criteria for state plan approval are further explicated at 29 C.F.R. 1902.3-1902.6 and in AFL-CIO v. Marshall, 570 F.2d 1030 (D.C. Cir. 1978).

n5 Robinson Pipe Cleaning Co. v. Dep't of Labor & Indus., 2 BNA OSHC 1114, 1119, 1974-75 CCH OSHD P18,776 (D. N.J. 1974).

n6 29 C.F.R. 1902.(b) and 1902.33.

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As part of this developmental sequence, once a state plan has in place adequate enabling legislation, approved standards, a sufficient number of qualified enforcement personnel, and an authority for review of citations, it may be deemed "operational" by the Secretary. At that point, according to the Secretary's regulation set forth at 29 C.F.R. 1954.3(b):

the State will conduct all enforcement activity including [*29] inspections in response to employee complaints, in all issues where the State is operational. Federal enforcement activity will be reduced accordingly and the emphasis will be placed on monitoring State activity. . . . n7

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n7 Once a state plan receives initial approval, the Secretary is permitted under section 18(e), 29 U.S.C. 667(e), to refrain from exercising his enforcement authority with respect to standards adopted by the state.

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One year after a state plan has completed its developmental steps, and no fewer than three years from the date of its initial approval, the plan is eligible to receive final approval pursuant to section 18(e). n8 Once final approval is granted, the standards adopted by the Secretary and his statutory authority to conduct inspections and issue citations do not apply in the state with respect to the occupational safety and health issues covered under the state plan. n9

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n8 29 C.F.R. 1902.32 and 1902.38.

n9 29 C.F.R. 1902.42. As used in section 18 of the Act and 29 C.F.R. Part 1902, the term "issue" is defined to mean "an industrial, occupational or hazard grouping which is at least as comprehensive as a corresponding grouping contained in (i) one or more sections in Subpart B or R of Part 1910 of this chapter, or (ii) one or more of the remaining subparts of Part 1910." 29 C.F.R. 1902.2(c)(1).

[*30]

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II.

A notification of failure to correct was issued to General Motors on June 2, 1978, based on a follow-up inspection of General Motors' Pontiac, Michigan foundry which took place from March 6 to March 17, 1978. The notification charged that General Motors had failed to correct a prior violation of 29 C.F.R. 1910.93(c), a standard limiting exposure to respirable dust. n10 A citation for the prior violation had been issued in March 1974 and had required abatement of the violation to be completed by January 15, 1976. It had not been contested by General Motors.

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n10 This standard was recodified as 29 C.F.R. 1910.1000(c) on May 28, 1975. 40 Fed. Reg. 23072.

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The State of Michigan's occupational safety and health plan was accorded operational status by the Secretary on January 6, 1977, more than a year before General Motors' foundry was re-inspected and the failure-to-correct notification now before us was issued. Operational status [*31] was conferred by a document entitled, "Agreement under Section 18(e) of the Occupational Safety and Health Act of 1970," which was signed by representatives of the Secretary and the State of Michigan. Notice of the Michigan operational agreement was published in the Federal Register on March 22, 1977. 42 Fed. Reg. 15411, codified in part at 29 C.F.R. 1952.262. The operational agreement, which set forth the scope of exercise of federal authority and state responsibility in Michigan, contains the following pertinent provisions:

6. In accordance with the Assistant Secretary's finding that the State has achieved operational status, under Section 18(e) of the Act, Federal enforcement authority will not be initiated with regard to Federal occupational safety and health standards with respect to the issues covered under 29 CFR Parts 1910 and 1926 where State standards are in effect and operational, except as provided in 8.b. and 8.c. below.

7. In the event that a State safety officer or industrial hygienist makes an inspection of an employer formerly inspected by an OSHA Compliance Officer and observes a condition which has not been corrected pursuant to a prior OSHA citation, the [*32] State representative shall refer the violation to the OSHA Area Office in Detroit, Michigan, for appropriate Federal action.

8. Federal responsibility under the Act will continue to be exercised with regard to:

a. Complaints to OSHA about violations of Section 11(c) of the Act (employment discrimination);

b. Enforcement of Federal standards such as temporary emergency standards until such time as the State shall have adopted such standards, in accordance with 29 CFR Part 1953;

c. Enforcement of standards contained in 29 CFR Parts 1915, 1916, 1917, 1918, and 1919 on the U.S. navigable waters, including dry docks, graving docks, and marine railways;

d. Investigation and inspection for the purpose of carrying out the Assistant Secretary's monitoring obligations under Sections 18(e) and (f) of the Act;

e. Abatement dates from OSHA-issued citations, which extend beyond the date of State assumption of inspection responsibility;

1. In these situations, only OSHA compliance officers will conduct follow-up inspections which will be restricted to the particular condition that was the subject of the initial citation and abatement requirement.

2. If, in the course of such follow-up [*33] inspections, the OSHA compliance officer observes other new violations of standards for which the State has assumed responsibility, the OSHA compliance officer will note those violations for referral to the State in accordance with the procedure in the "State Program Performance Monitoring Guide."

The Federal Register notice concerning Michigan's operational status contains somewhat similar provisions. The portion of the notice labeled "Background" includes the following statement:

In accordance with 1954.3(b) of this chapter, Federal enforcement authority will not be exercised as to occupational safety and health issues covered under a State plan where a State is operational.

The portion of the Federal Register statement apportioning federal and state enforcement responsibilities provides as follows:

Pursuant to 1902.20(b)(1)(iii) and 1954.3 of this chapter under which an agreement has been entered into with Michigan, effective January 6, 1977, and based on a determination that Michigan is operational in the issues covered by the Michigan occupational safety and health plan, discretionary Federal enforcement activity under section 18(e) of the Act (29 U.S.C. 667(e) will [*34] not be initiated with regard to Federal occupational safety and health standards in issues covered under 29 CFR Part 1910 and 29 CFR Part 1926. The U.S. Department of Labor will continue to exercise authority, among other things, with regard to: complaints filed with the U.S. Department of Labor about violations of the discrimination provisions of section 11(c) of the Act (29 U.S.C. 660(c)); Federal standards promulgated subsequent to the agreement where necessary to protect employees, as in the case of temporary emergency standards promulgated under section 6(c) of the Act (29 U.S.C. 655(c)), in the issues covered under the plan and the agreement until such time as Michigan shall have adopted equivalent standards in accordance with Subpart C of 29 CFR Part 1953; standards contained in 29 CFR 1910.15 through 1910.19, which issues have been specifically excluded from coverage under the Michigan plan; and investigations and inspections for the purpose of the evaluation of the Michigan plan under sections 18(e) and (f) of the Act (29 U.S.C. 667(e) and (f)).

III.

On the basis of the provisions of 29 C.F.R. 1954.3(b), the operational status agreement, and the Federal Register notice, [*35] General Motors argues that the Secretary did not have authority to issue the notification now in contest. The Secretary contends that the notification is valid under the operational status agreement because the prior violation, which General Motors is charged with not correcting, was cited before the Michigan plan attained operational status. Having carefully considered the operational status agreement and the Federal Register notice, I agree with General Motors that the Secretary did not have authority to issue the notification and reject my colleagues' opinion to the contrary. I conclude that the Secretary can initiate only follow-up inspections that involve prior federally-set abatement dates which extend beyond the date the Michigan plan was accorded operational status. If the abatement date does not extend beyond the date the state plan was accorded operational status, the Secretary has no authority to initiate follow-up inspections but must receive a referral from the state.

My colleagues conclude that the Secretary has the authority to instigate follow-up inspections concerning all prior federally-set abatement dates. They do not distinguish between initiating inspections [*36] and receiving referrals from the state, nor do they distinguish between follow-up inspections that concern federally-set abatement dates which extend beyond the date the state plan was accorded operational status and those which do not extend beyond that date. The operational status agreement, however, clearly distinguishes between the initiation of inspections and those resulting from referrals and limits the follow-up inspections the Secretary can initiate based upon when the abatement date occurs.

The basic sense of paragraphs 6 and 7 of the operational status agreement is plain. Paragraph 6 forthrightly states that the Secretary, with certain exceptions, is not to initiate enforcement authority with regard to certain federal standards covering issues as to which state standards are in effect. I read this to mean that the state, rather that the Secretary, is to instigate enforcement concerning conditions which are addressed by the state's standards. Paragraph 7 addresses referrals and provides that the state is to refer certain actions, specifically those involving actions for failure to abate, to the Secretary. In such cases the state, rather than the Secretary, is initiating [*37] the enforcement and the Secretary merely is responding to the state's referral.

Instead of reading paragraphs 6 and 7 on their face, the majority relies upon implication and speculates as to what the drafters intended. My colleagues state that paragraph 6 indicates that only the state is to enforce the abatement of conditions which were not previously cited by the Secretary, and by implication thereby conclude that the Secretary has the authority to initiate follow-up inspections and enforce the abatement of all conditions which he previously cited. n11 However, paragraph 6 conveys no such idea. Indeed paragraph 6 mades no reference to a division of authority between the Secretary and the state based upon whether the Secretary has previously inspected and issued prior citations.

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n11 Apparently the majority concludes that the word "initiate" in paragraph 6 does refer to the authority to instigate enforcement actions but they state that the limitation on the Secretary's authority to initiate actions does not apply to follow-up inspections. This interpretation of the word "initiate" is inconsistent with the ordinary meaning of the term and follows from the majority's strained reading of the agreement.

[*38]

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Similarily, in paragraph 7's requirement that the state refer to the Secretary a condition which has not been corrected pursuant to a prior federal citation, the majority finds an implication that complete federal authority over federally-issued citations is retained by the Secretary. The majority fails to acknowledge that paragraph 7 speaks only to instances in which the state refers to the Secretary cases of failures to abate. The paragraph does not purport to address the authority of the Secretary to undertake enforcement of such apparent violations on his own initiative.

Contrary to the majority's conclusion that primary reliance should be placed upon paragraphs 6 and 7 of the operational status agreement, the key to resolution of the issue presented in this case is contained in paragraph 8. That paragraph sets out the activities to which federal responsibility will continue to be exercised in the state and therefore serves as an exception to paragraph 6 which limits the Secretary's authority to institute enforcement activity. n12 As my colleagues note, paragraph 8(e)(1) provides that only the [*39] Secretary is to conduct follow-up inspections concerning prior federally-set abatement dates which extend beyond the date the state plan is accorded operational status. No mention is made of follow-up inspections concerning abatement dates which do not extend beyond the date of operational status.

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n12 One of the operational agreement's anomalies is that paragraph 6, which bars the Secretary from initiating certain enforcement activities, specifically excepts from this prohibition the activities set forth in paragraph 8(b) and (c) but neglects to except the other subsections of that paragraph. Yet the entirety of paragraph 8 sets out the specific federal enforcement activities which are to continue in the state. Thus, by its very nature all of paragraph 8 must be an exception to the general bar on federal activities provided in paragraph 6.

This understanding of the relationship between paragraph 6 and paragraph 8 is borne out by the regulation implementing the operational status agreement, 29 C.F.R. 1952.262. The first sentence of that regulation essentially restates the content of paragraph 6 of the agreement by providing that "discretionary Federal enforcement activity will not be initiated [in the state] with regard to Federal occupational safety and health standards in issues covered under 29 C.F.R. Part 1910 and 29 C.F.R. Part 1926." Although this sentence itself provides for no exceptions to its bar of federal enforcement activities, the next sentence enumerates the various federal enforcement activities which are to continue in the state. This list of federal activities which are to continue is virtually the same as that set out in paragraph 8 of the operational status agreement. Thus, the regulation makes clear the intent of the operational status agreement that the entirety of paragraph 8 constitutes an exception to the general prohibition set out in paragraph 6.

The anomaly presented by paragraph 6's provision for exceptions only for subsections (b) and (c) of paragraph 8 is not explained by the majority's interpretation of the term "initiation" of federal enforcement authority as excluding follow-up inspections. Interpreting paragraph 6's ban on federal activity as not encompassing follow-up inspections would make an exception for subsection (e) of paragraph 8 unnecessary but still would not explain the failure to provide exceptions for subsections (a) and (d) of paragraph 8.

[*40]

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The majority concludes that paragraph 8(e)(1) was only meant for clarification and to preclude any misinterpretation concerning the authority of the Secretary to institute inspections with respect to abatement dates designated in prior federal citations which fall after the date on which the Michigan plan was declared operational. They note that "obviously" some abatement dates will fall in this category and that paragraph 8(e)(1) was intended to address those conditions. It is just as obvious, however, that some abatement dates from prior federal citations will occur prior to the date on which the Michigan plan was declared operational. Yet authority to conduct follow-up inspections as to those was not mentioned in paragraph 8(e)(1). Although my colleagues conclude that the Secretary has the same authority over that class of follow-up inspections as he does with respect to those covered by paragraph 8(e)(1), they fail to explain why the drafters emphasized one category of follow-up inspections and not another. Certainly one is as subject to misinterpretation as the other. I therefore reject my [*41] colleagues interpretation of paragraph 8(e)(1).

I conclude instead that in drawing a careful distinction between abatement dates which extend beyond the beginning of the state's operational status and those which do not, the agreement evinces a clear intent that the Secretary is not to initiate any follow-up inspections where, as in the instant case, the abatement date set by the previous citation is prior to the inception of the state's operational status. The logic of the basic rule of construction that "the expression of one thing implies exclusion of another" n13 has particular force here, where it is apparent that care was taken to draw this unusual distinction as to abatement dates. n14

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n13 "Expressio unius est exclusio alterius." See generally, 2A C. Sands, Sutherland Statutory Construction 47.23 - 47.25 (1973).

n14 As I have previously noted, the Secretary must receive referrals from the state before it can conduct follow-up inspections involving federal citations in which abatement dates do not extend beyond the date the Michigan plan was accorded operational status. Contrary to my colleagues' opinion, this procedure need not be left to chance. The Secretary can inform the state as to follow-up inspections which he believes should be made. However, the state, and not the Secretary, shall decide the priority to be accorded these inspections and hence whether or not inspections shall be made. This is consistent with 29 C.F.R. 1954.3(b) which provides that when a state plan is accorded operational status, "[f]ederal enforcement activity will be reduced and emphasis will be placed on monitoring State activity."

[*42]

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Thus, since paragraph 6 in general bars the Secretary from initiating enforcement activities in the state and paragraph 8 enumerates the activities which the Secretary may initiate, I would hold that the enforcement activity the Secretary has undertaken in the present case is not among those permitted by the agreement and regulation and, therefore, is invalid. n15 Thus, I would grant General Motor's motion to dismiss.

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n15 It is well settled that an Executive Agency of the Government is bound by its own regulations, which have the force and effect of law, and the failure of an agency to follow its regulations renders its decision invalid. See United States v. Nixon, 418 U.S. 683, 694-696, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957) (State Department); Cunningham v. United States, 423 F.2d 1379, 191 Ct.C1. 471 (1970) (Air Force); Piccone v. United States, 407 F.2d 866, 186 Ct.C1. 752 (1969) (Navy Dept.); Watson v. United States, 162 F.Supp. 755, 142 Ct.C1. 749 (1958) (War Dept.); and Hanifan v. United States, 354 F.2d 358, 173 Ct.C1. 1053 (1965) (Civil Service Commission).

Gulf States Mfrs., Inc. v. NLRB, 579 F.2d 1298, 1308 (5th Cir. 1978), rehearing granted, 587 F.2d 808 (5th Cir. 1978).

[*43]

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