Consolidated Rail Corporation
Railroad preemption issue remanded for evidence
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This is citable Commission precedent from 1993, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
Consolidated Rail Corporation moved to dismiss OSHA citations arising from railroad-bridge repair and maintenance work, arguing that Federal Railroad Administration regulation preempted OSHA under section 4(b)(1) of the OSH Act. The Commission held that the FRA's policy statement did not displace OSHA throughout the railroad industry. It concluded that hazard communication, chemical washing facilities, an overall safety program, and employee training fell outside the FRA policy and remained within OSHA's jurisdiction. Scaffolding presented a fact-dependent question because FRA policy could preempt OSHA regulation of platforms and other surfaces on railroad bridges or walkways beside tracks. With no hearing, affidavits, or stipulations establishing where the scaffolds were located and how they related to the bridge, the Commission remanded for an evidentiary hearing and a decision on the merits.
Decision snapshot
- Cited standard(s): No specific OSHA standard is identified in the Commission release.
- Outcome: Denial of Conrail's motion to dismiss reviewed, with the cases remanded for an evidentiary hearing on preemption and the merits.
- Key point: FRA regulation preempts OSHA only to the extent the FRA intended to regulate the working conditions at issue, and scaffold coverage on railroad property may require a factual record.
Full text (OSHRC public release)
: ..
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW
4TH FLOOR
WASHINGTON, DC 20006- 1246
FAX
COM (202) 634-4008
FTS (202) 634-4008
SECRETARY OF LABOR, ..
Complainant, ..
.
V. . OSHRC Docket Nos. 91-3133 &
. 91-3134
CONSOLIDATED RAIL CORPORATION, I
Respondent. ..
DECISION
BEFORE: FOULKE, Chairman, WISEMAN and MONTOYA, Commissioners.
BY THE COMMISSION:
Pursuant to Commission Rule 73(b), 29 C.F.R. 5 2200.73(b), governing interlocutory
review, we have before us an order of an administrative law judge of the Commission
denying a prehearing motion presented bvd Consolidated Rail Corporation (“Conrail”).
Conrail would have the Commission dismiss the Secretary of Labor’s (“Secretary”) citation
in these cases on the basis that the regulations cited therein, promulgated by the Occupa-
tional Safety and Health Administration (“OSHA”), of the United States Department of
Labor, have been preempted by the regulatory action of another agency, the Federal
Railroad Administration (“FRA”). For this reason, Conrail asserts, OSHA lacks enforce-
ment authority pursuant to section 4(b)(l) of the Occupational A
Safetv and Health Act of
d
1970, 29 U.S.C. $5 651-78 (“the Act”). Section 4(b)( 1 states, in pertinent part: “Nothing
in this Act shall apply to working conditions of emp oyees with respect to which other
Federal agencies . . . exercise statutory authority to prescribe or enforce standards or
regulations affecting occupational safety and health.”
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I. The F&t Policy Statement and Its Interpretation
The FRA’s exercise of regulatory authority is in the form of a statement of policy
articulating the conditions under which, in view of the FRA’s expertise in the field of
railroad operations and the FRA’s special understanding of the safety and health needs of
railroad employees, OSHA regulations are appropriate for -- and shall apply to --various
specified surroundings or hazards of railroad operations. In order to give formal notice of
the policy, the FRA published this statement in the Federal Register. 43 Fed. Reg. 10583
(1978). Thereby, “as the dominant agency in its limited area, the FRA [could] displace
OSHA regulations by articulating a formal position that a given working condition should
go unregulated [by a federal standard] . . . .” See Southem Pacific Transp. Co. v. Usery, 539
F.2d 386, 391-92 (5th Cir. 1976), cert. dertied, 434 U.S. 874 (1977) (“Southern Pacific”)
(positing that another agency can preempt OSHA regulations by formally deciding against
issuing any standard or regulation); Velasquez v. So. Pacific Tramp. Co., 734 F.2d 216 (5th
Cir. 1984) (treating the FRA policy statement as an exercise of statutory authority); see also,
In Re: Impection of Norfolk Dredgiq Co., 783 F.2d 1526, 1530 (11th Cir. 1986) (“Noflolk
Dredging”) (accepting that another agency can preempt OSHA regulations by formally decid-
ing against issuing any standard or regulation). Thus, in 1982, the Commission held that the
FRA’s policy statement is an exercise of statutory authority which, pursuant to section
4(b)(l) of the Act, is capable of exempting the surroundings and hazards mentioned by the
FRA from being governed bv4 OSHA’s regulations and enforcement. Consolidated Rail
Cop., 10 BNA OSHC 1577, 1580-81, 1982 CCH OSHD ll 26,044, pp. 32,708.09 (No. 790
1277, 1982) (“Conrail ZI”).
We use the terms “surroundings” and “hazards” advisedly, to emphasize that both
matters are critical to analyzing and applying the policy statement. Not long before the FRA
policy statement’s issuance, two federal circuits rendered interpretations of the term “work-
ing conditions” that appears in section 4(b)( 1). Southem Pacific, 539 F.2d at 390-93;
Southem Ry. Co. v. OSHRC, 539 F.2d 335, 338-39 (4th Cir.), cert. dertied, 429 U.S. 999 (1976)
(“Southem Railway”). Both circuits, the Fourth and the Fifth, rejected the railroads’
arguments that the term “working conditions” is synonymous with “industry-wide conditions”
3
or with the industry’s whole employment relationship; an industry cannot claim such an
extensive exemption from OSHA regulation just on the simple basis that an agency other
than OSHA regulates a portion or an aspect of the industry’s occupational safety and health.
Southern Pacific, 539 F.2d at 390-91; Southem Railway, 539 F.2d at 338; see a&o, Baltimore
and Ohio RR Co. v. OSHRC, 548 F.2d 1052, 1053-54 (D.C. Cir. 1976); Consolidated Rail
Cop., 10 BNA OSHC 1706,1708, 1982 CCH OSHD ll 26,082, p. 32,827 (No. 80-3495,1982)
(“ConraiZlIl”). But the Fourth and Fifth Circuits articulated differing understandings as to
how much narrower the effect of another agency’s particular regulations might be toward
preemption of OSHA’s coverage.
Would, for example, an agency’s regulation requiring airline employees to keep the
exit doors of airport passenger lounges locked or obstructed to inhibit aircraft piracy have
any preemptive effect on an OSHA regulation that requires exit doors to be unlocked and
unobstructed in case of fire emergencies. 3 See United States Air, Inc., v. OSHRC, 689 F.2d
1191 (4th Cir. 1982) (“U.S. Air”). That is, is preemption possible if the other agency has
regulated the surroundings but not the hazard on which the OSHA regulation focuses?
Must the other agency take a hazard-by-hazard approach ? The Fourth Circuit thought not.
The court held that the other agency’s regulation to keep the doors closed preempted
OS-IA’s regulation regarding keeping the doors open, and the court reasoned that, since
“[tjhe Act was intended both to provide comprehensive coverage to the workers across the
country and to avoid duplicatiorz of regulatory effort by the various Federal agencies”
(emphasis added), section 4( b)( 1)‘s reference to “working conditions” could be construed
to mean “the environmental area in which the employee customarily goes about his daily
tasks.” Therefore, “when an agency has exercised its statutory authority to prescribe stan-
dards affecting occupational safetvd or health for such an area, the authority of the Secretary
of Labor [to regulate] in that area is foreclosed.” Southern Railway, 539 F.2d at 339 (foot-
note omitted); see also U.S. Air, 689 F.2d at 1192-93; Columbia Gas v. Marshall, 636 F.2d
913, 916 (3d Cir. 1980) (expresslv4 adopting Fourth Circuit’s test).
The Fifth Circuit disagreed to the extent of not wanting to make an absolute equation
of the term “working conditions” with the term “surroundings.” See Southern Pacific, 539
4
F.2d at 391 n.10. Notably, however, the court did not make an absolute equation of
“working conditions” with “hazards.” The court stated that the term “embraces both
‘surroundings,’ such as the general problem of the use of toxic liquids, and physical
‘hazards,’ ” but the court said that a hazard “can be expressed as a location (maintenance
shop), a category (machinery), or a specific item (furnace).” Thus the court attached
considerable significance to the other agency’s choice to focus its regulations on the physical
surroundings in which or with which the employees work. The court did indicate, however,
that in some circumstances the other agency might have to address the same hazard as
OSHA for its regulations to have preemptive effect: “Thus, comprehensive FRA treatment
of the general problem of railroad fire protection will displace all OSHA regulations on fire
protection, even if the FRA activity does not encompass every detail of the OSHA fire
protection standards, but FRA regulation of portable fire extinguishers will not displace
OSHA standards on fire alarm signaling systems.” So&tent Pacific, 539 F.2d at 391
(footnote omitted); compare PBR, Inc., v. Secretary of Labor, 643 F.2d 890, 896 (1st Cir.
1981) (no preemption absent indication of “a broader effect for” particular FRA track safety
regulation); Alaska Trawl Fisheties, Inc., 15 BNA OSHC 1699, 1704 n.10, 1992 CCH OSHD
li 29,758, p. 40,450 n.10 (No. 89-1017, 1992) (no preemption where Coast Guard “claims no
expertise in regulating” factory ship working conditions). In sum, as this recitation of the
law reveals, it is the agency’s intent that governs preemptive effect:
We recognize that a regulatory exercise expressed in terms of a category of
equipment or a generalized problem may raise questions about whether a
given item is covered. Conversely, an exercise expressed in terms of a piece
of equipment may create an issue about whether the FRA has regulated the
entire category to which that piece belongs. In either situation, the scope of
the exemption created by section 4(b)( 1) is determined by the FRA’s intent,
as derived from its articulation.
Southenz Pacific, 539 F.2d at 392; compare Noqolk Dredging, 783 F.2d at 1530-31 (no intent
by Coast Guard to regulate other than certain specified subject matters for uninspected
vessels); Donovan v. Red Star Marine Services, Inc., 739 F.2d 774, 777-80 (2d Cir. 1984)
(same). These cases clearly indicate that the FRA need not track OSHA’s standards in
5
every facet of hazard or surroundings--work location or equipment --in order to have
regulations capable of preempting those of OSHA.
With these principles in mind, we turn now to the text of the FRA’s policy statement.
There, the FRA stated the following, in pertinent part:
Within the area of railroad operations, it is [the] FRA which must decide what
regulations are necessary and feasible . . . . [Tjze] FRA has now exervked its
statutory authority . . . . While it is expected that additional regulatory
initiative may be undertaken as necessary, . . . it is he judgment ofthe agency
that piecemeal regulatiorl of irtdividual lmards . . . by any other agency of
government would be disruptive and contrary to the public interest. Should it be
demonstrated that further specific regulatory action is required . . . [the] FRA
will not hesitate to employ its emergency powers or to initiate special-purpose
proceedings directed to the solution of individual problems. Therefore, as the
primary regulatory agency, [the] FRA has exercised and continues to exercise
its jurisdiction over the safety of railroad operations.
OSHA regulations concerning working sueaces deal with such matters as
ladders, stairways, plarjromts, scaflolds and floor operzirzgs. Generally, these
regulations are applicable in railroad of/ices, shops, and other fimed work places.
77zere are three principal exceptions to the rule. First, they would not apply with
respect to the design of locomotives and other rolling equipment used on a
railroad, since working conditions related to such surfaces are regulated by
FRA as major aspects of railroad operations.
Second, as the agency which has exercised jurisdiction over railroad
operations, FRA is responsible for the safe movement of rolling stock through
railroad repair shops. OSHA requirements for general industry are in some
respects inconsistent with the optimum safety of employees in this unique
environment where hazards from moving equipment predominate. Therefore,
OSHA regulations on guarding of open pits, ditches, etc. would not apply to
inspection pits in locomotive or car repair facilities. FRA is better equipped
to assess proper clearance technology and employee knowledge of existing
industry practices as well as the prevalence and severity of hazards represent-
ed by specific injury occurrence codes in accident/incident reporting statistics.
FRA is responsible for determining what additional regulatory steps, if any,
may be necessary in this area in light of overall safety considerations.
Third, the OSHA regulations would not apply to ladders, pla@orms, and
other suqaces o/t sigrlal masrs, carerznrysystems, railroad bridges, turntables, and
6
similar smctures or to walkways beside the tracks in yards or along the right-of-
way. These are areas which are so much a pan of the operating environment
that they must be regulated by the agency with pn’mary responsibilityfor railroad
safety. Therefore, FRA will determirte the need for and feasibility of general
standards to address individual hazards related to srcch sufaces, keeping in mind
the requirement of proper clearances and the fanziliun’tyof employees with exist-
ing designs.
43 Fed. Reg. at 10586-87 (emphasis added).
II. Recent Rulemaking Regarding Maintenance-of- Way Employees
Ten years after the policy statement’s publication, the FRA came under congressional
pressure to make a more specific exercise of authority over the safety of maintenance-of-way
employees. By statute, Congress said that the FRA “shall within one year after June 22,
1988, issue such rules, regulations, orders and standards as may be necessary for the safety
of maintenance of way employees, including standards for bridge safety equipment, such as
nets, walkways, handrails, and safety lines, and requirements relating to instances when boats
shall be used.” 45 U.S.C. 5 431(n) ( amending the Federal Railroad Safety Act of 1970, 45
U.S.C. Q 421 et seq.). Consequently, in March 1989, the FRA’s assistant chief counsel for
safety wrote a letter to the Associate Solicitor of Labor regarding the FRA’s position at that
time with respect to the applicability of OSHA regulations to maintenance-of-way employees
and with respect to future rulemaking. In pertinent part, the letter states (emphasis added):
We expect the proposed rule to address personal protective apparatus for use
by railroad employees working on walkways, over or near water, or on scaf-
folds. These devices would include safety belts, lifelines, lanyards, safety nets,
boats, railings and respirators.
As to protection of maintenance-of-way workers performing track mainte-
nance or repair, responsibilitv for their safety is [the] FRA’s, according to the
Policy Statement issued by [the] FRA [on] March 14, 1978 . . . . [T]he Policy
Statement notes that “. . .dproper precautions to assure that trackmen are not
struck by trains or other equipment moving over the rails are part of the
safety of railroad operations.” 43 F.R. 10585.
In addition, the Policy Statement provides that “. . OSHA regulations would
l
not ‘apply to . . . walkwur-sbeside the tracks in yards or along the tight-of-way.
These are areas which are SOmuch a part of the operating environment that they
7
must be regulated by the agency with primary responsibilityfor railroad safety.”
43 F.R. 10587.
The FRA thereafter began rulemaking proceedings for regulation of the safety of
maintenance-of-way employees. In January 1991, the FRA published the notice of proposed
rulemaking. It states the following regarding the final paragraph of the portion of the policy
statement that we have quoted earlier in this decision:
As this segment of the Policy Statement indicates, FRA intended to displace
OSHA regulations with respect to the surfaces 011bridges, i.e., track structures,
but did not intend to prevent OSHA from exercising its more general
responsibilities for the safety of railroad workers with respect to fall protection
and respiratory equipment.
56 Fed. Reg. at 3435 (1991) (emphasis added). Then, in June 1992, the FRA issued safety
regulations for maintenance-of-way employees. The preamble thereto stated the following:
Any working conditions involving the protection of railroad employees working
on railroad bridges not within the subject matter addressed by this Chapter, _
including respiratory protection, hazard communication, hearing protection,
welding and lead exposure standards, shall be governed by the regulations of
the U.S. Department of Labor, Occupational Safety and Health Administra-
tion.
57 Fed: . Reg. at 28,130, 1992 CCH Emp. S&H Guide New Developments, ll 11,369 at
8 214.101(d) (standards only) (1992).
III. Analysis
In the case now before us, Conrail asserts that, “in 1991, the Administrator of the
FRA confused the question of FRA/OSHA jurisdiction by arguing that the 1978 policy
statement did not intend to preempt OSHA from all aspects of bridge safety,” and that “this
conflicts with the previously held position of the FRA, as stated in the Policy Statement” and
the March 1989 letter. The Secretary’s
4 response to this argument is that “the letter relied
upon by the Respondent simply does not indicate that FRA is intending to preempt OSHA
from all aspects of bridge safety[,) but only those relating to assurance that trackmen are not
struck by trains or equipment moving over the tracks.”
As we have already discussed, the policy statement does not oust OSHA from
regulating the occupational safety and health of railroad employees on an industry-wide
8
basis. See also Consolidated Rail Cop., 10 BNA OSHC 1869, 1982 CCH OSHD II 26,164
(No. 78-2546, 1982) (OSHA may require personal protective equipment for noise and eye
protection and respirators for chemical exposures at railroad repair shops); Conrail III,
10 BNA OSHC at 1708, 1982 CCH OSHD at p. 32,827 (OSHA may require occupational
injury and illness recordkeeping by railroads); Conrail II, 10 BNA OSHC at 1577, 1982
CCH OSHD at pp. 32,709,10 (indication that OSHA may require first aid training at
railroad repair shops); Consolidated Rail Cop, 10 BNA OSHC 1564, 1567-68, 1982
CCH OSHD ll 26,046, pp. 32,713.15 (No. 78-1504, 1982) (OSHA may require steel-toed
shoes at railroad repair shops). OSHA regulation and enforcement is only preempted if the
FRA’s policy statement evidences an intent to regulate the working conditions, which, as we
have already discussed, are defined in terms of the environmental area in which railroad
employees go about their work, their surroundings, or the hazards to which they may be.exposed.
Certain matters involved in the cases now before us -- the matters of hazard communication,
washing facilities for chemical exposure, and an employer’s overall safety program and
employee training-- fall outside the policy statement and, in our opinion, into OSHA juris-
diction on the basis of our plain reading of the FRA’s policy statement. But the scaffolding
items are a different matter. If any scaffold is located on a walkway beside a track in a yard
or along a right-of-way, OSHA would be preempted from regulating it, for the FRA’s policy
statement plainly says that “OSHA regulations would not apply to . . platforms and other
l
surfaces on . . . railroad bridges . . . and similar structures, or to walkways beside the tracks
in yards or along the right-of-way.” (Emphasis added.)
We cannot ascertain whether such is the case here. There has been neither a hearing
nor any other presentation of fact in these cases, as by affidavits or stipulations. In essence,
therefore, there is no factual record from which to understand exactly what relationship
these scaffolds have to the policy statement’s assertion that “OSHA regulations would not
apply to. . . platforms and other surfaces on . . . railroad bridges . . . and similar structures,
or to walkways beside the tracks in yards or along the right-of-way.” The employer asserts
that the employees were on the bridge and the scaffolds were “being used in the bridge
work.” The Secretary alleges that the bases of the scaffolds were adjacent to the “railroad
9
trestle pier[s].” And the union for the employees contends that the employees had been
digging earth “in the vicinity of’ the bridge. Accordingly, we remand these cases to the
Commission judge for an evidentiary hearing and for decision on the merits. See also
Burlington Northenz R.R. Co., 13 BNA OSHC 2099, 2 10 1, 1987-90 CCH OSHD II 28,458,
p. 37,670 (No. 87-365, 1989).
Edwin G. Foulke, Jr.
Chairman
Commissioner
Dated: March 3-L 1993
UNITED STATES tY :..‘:a :A
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 k STREET L’v
4TH FLOGS
WASHINGTON DC: 2S’?~t ‘246
Secretary of Labor,
Complainant,
v. Docket Nos 91-3133 &
91-3134
CONSOLIDATED RAIL CORPORATION,
Respondent.
NOTICE OF COMMISSION DECISION AND REMAND ORDER
The attached Decision of Remand by the Occupational Safety and Health Review Commission
was issued on March 31, 1993. The case will be referred to the Office of the Chief Administrative
Law Judge for further action.
FOR THE COMMISSION
March 31, 1993
Date
Docket Nos. 91-3133 & 91-3134
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. D6L
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
William S. KIoepfer, Esq.
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 851
1240 East Ninth Street
Cleveland, OH 44199
Nanci A. Hoover
Law Department 16-A
Two Commerce Square
2001 Market Street
P.O. Box 41416
Philadelphia, PA 19101
Christine Beyer
Office of Chief Counsel
Federal Railroad Admin.
400 Seventh Street, S.W.
Washington, D.C. 20590
C. Perry Rapier, District Chairm:w
c/o Pennsylvania Federation of the Brotherhood
of Maintenance of Way Emplovees,* AFL-CIO-CLC
1835 St. Rt. 502
Greenville, OH 4533 1
Paul L. Brady
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309-3 119
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET N W
4TH FLOOR
WASHINGTON D.C 20006-1246
FAX:
COM (202) 634-4008
. f=E 634-4008
SECRETARY OF LABOR, ..
Complainant,
v. .. _ Docket Nos. 91-3133 &
. 91-3134
CONSOLIDATED RAIL CORPORATION, ;
Respondent.
.
ORDER
On July 1, 1992, Respondent filed a Petition for Interlocutory Review requesting
review of the administrative law judge’s order denying its Motion to Dismiss. Respondent
argues that under section 4(b)( 1) of the Occupational Safetvd and Health Act of 1970, 29
U.S.C. 8.653(b)(l), the Occupational Safety and Health Administration (“OSHA”) lacks
jurisdiction over the worksite. Since the worksite involved the repair and maintenance of
a railroad bridge, the Respondent argues that it was under the exclusive jurisdiction of the
Federal Railroad Administration (“FRA”) due to the FRA’s assertion of its regulatory
authority and the resulting preemption of OSHA’s jurisdiction. The Secretary has filed an
Opposition to the Petition.
The Commission has reviewed the Petition for Interlocutory Review and the
Secretary’s Opposition and finds that under Commission Rule 73(a), 29 C.F.R. 5 2200.73(a),
this case involves an important question of law about which there is substantial ground for
difference of opinion and that immediate review of the ruling may materially expedite the
disposition of the proceedings. Accordingly, the Petition for Interlocutory Review is granted.
The proceedings before the Administrative Law Judge, including the hearing scheduled for
July 24, 1992, are stayed.
Chairman
Donald G. Wise-man .
Commissioner
Velma Montoya
Commissioner
Dated July 22, 1992
Docket Nos. 91-3133 & 91-3134
NOTICE OF ORDER
The attached Order by the Occupational Safety and Health Review Commission
was issued and served on the following on July 22, 1992.
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, USDOL
200 Constitution Ave., N.W. Room S4004
Washington, D.C. 20210
William S. Kloepfer, Esq.
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199
Nanci A. Hoover
Associate General Gounsel
1138 Six Penn Center Plaza
Philadelphia, PA 19103
Christine Beyer
Office of Chief Counsel
Federal Railroad Admin.
400 Seventh Street, S.W.
Washington, D.C. 20590
Docket Nos. 91-3133 & 91-3134
C Perry Rapier
District Chairman
c/o Pennsylvania Federation of the Brotherhood
of Maintenance of Way Employes, AFL-CIO-CLC
1835 St. Rt. 502
Greenville, OH 4533 1
Paul L. Brady
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309-3 119
FOR THE COMMISSION
Ray H. Darling, Jr.
Executive Secretary
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