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ENVIRONMENTAL IMPROVEMENT DIV., ETC. v. MARSHALL

No. 79-2246.

661 F.2d 860 (1981)

ENVIRONMENTAL IMPROVEMENT DIVISION OF the NEW MEXICO HEALTH AND ENVIRONMENT DEPARTMENT, Plaintiff-Appellant, v. Ray MARSHALL, Secretary of the United States Department of Labor, et al., Defendants-Appellees.

United States Court of Appeals, Tenth Circuit.

Decided October 14, 1981.

Attorney(s) appearing for the Case

Bruce S. Garber, Asst. Atty. Gen., State of N. M., Santa Fe, N. M. (Louis W. Rose, Asst. Atty. Gen., Environmental Improvement Div., Santa Fe, N. M., with him on the brief), for plaintiff-appellant.

Patrick Tyson, Asst. Counsel for State Plans, U. S. Dept. of Labor, Washington, D.C. (Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Allen H. Feldman, Counsel for Appellate Litigation, Washington, D.C., James E. White, Regional Sol., Dallas, Tex., and Olympia Pachares, Washington, D.C., with him on the brief), for defendants-appellees.

Before SETH, Chief Judge, HOLLOWAY, Circuit Judge, and KERR, District Judge.

SETH, Chief Judge.

This appeal concerns the Secretary of Labor's authority to supervise and concurrently enforce a state occupational safety and health plan submitted to the Occupational Safety and Health Administration (OSHA) by the State of New Mexico. Basically, the state argues that under the circumstances presented here it is entitled to exclusive authority to enforce its program. The trial court granted summary judgment for the Secretary.

The state prepared...

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