PETITION FOR REVIEW OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION OSHRC No. 78-3861
Before Hunter and Weis, Circuit Judges, and Fisher,*fn* District Judge.
Petitioner, Columbia Gas of Pennsylvania, Inc., seeks dismissal of a citation issued by the Occupational Health and Safety Administration (hereinafter "OSHA"). The citation resulted from the July 27, 1978 inspection of a trench in which petitioner's employees were working on a natural gas pipeline. Columbia contends, inter alia, that OSHA was without authority to act because safety regulations issued by the Department of Transportation preempted their jurisdiction. We agree and therefore vacate the citation and the Commission's order for lack of jurisdiction.
In the summer of 1978 Columbia was installing an auxiliary natural gas pipeline to provide additional service to consumers on Neville Island, Pennsylvania. To expose the existing gas main petitioner excavated a thirty-five foot long trench and Columbia employees used electric and acetylene welding equipment to tap the existing pipeline.*fn1 By this process natural gas was supplied to the auxiliary pipeline without interrupting the gas flow in the existing main. This procedure known in the industry as a "hot tap" is required if an auxiliary line is to be joined to an existing main without disrupting the flow of natural gas to consumers.
Since the use of welding equipment in the "hot tap" creates the risk of explosion if natural gas is also present, petitioner tested the atmosphere of the trench. This test can detect levels of both natural and methene gas. Petitioner's employees performed it once, at the time the trench was first excavated. The results were negative.
On July 26, 1978, a week after the atmospheric testing, one of petitioner's employees smelled natural gas in the trench while working on the hot tap.*fn2 No atmospheric tests were performed at that time. The next day, compliance officer Ralph Romano, conducted an OSHA inspection of the workplace. He performed no atmospheric tests during the inspection, and none of petitioner's employees detected the odor of natural gas when working in the trench. Nevertheless officer Romano found "gaseous conditions" present and cited petitioner for a serious violation of 29 C.F.R. § 1926.651(v) (1980). This regulation requires atmospheric testing of the trench prior to the use of equipment that could cause accidental ignition.*fn3
Columbia Gas contested the citation and a hearing was held before an Administrative Law Judge. The ALJ affirmed the findings of officer Romano and upheld the citation. After adjusting the penalty to account for Columbia's prior history and good faith, the ALJ imposed a $420.00 fine. Columbia applied to the Occupational Safety and Health Review Commission (hereinafter "Commission") for discretionary review, contending that regulations of the Department of Transportation preempted OSHA's subject matter jurisdiction over the welding of natural gas pipelines.*fn4 The Commission declined review; petitioner sought relief in this court.
SECTION 4(b)(1) PREEMPTION
Section 4(b)(1) of the Occupational Safety and Health Act, 29 U.S.C. § 653(b) (1) (1976), (hereinafter the "Act") provides:
Nothing in this chapter shall apply to working conditions of employees with respect to which other Federal agencies, and state agencies acting under section 2021 of Title 42, exercise authority to prescribe or enforce standards or regulations affecting occupational safety and health.
Read literally, section 4(b)(1) deprives OSHA of jurisdiction over working conditions that are already subject to safety regulations promulgated by other agencies.*fn5 The clear legislative purpose of this section was to eliminate any wasteful duplication in the efforts of federal agencies.*fn6
As interpreted since its enactment, section 4(b)(1) preemption requires a two-part showing; first, that a coordinate federal agency has "exercised" authority by promulgating regulations in the area and second, that these concurrent regulations cover the specific "working conditions" purportedly within OSHA's jurisdiction.*fn7 The Department of Transportation, Office of Pipeline Safety (hereinafter OPS), has exercised its authority in this area by promulgating regulations entitled "Transportation of Natural and Other Gas by Pipeline: Minimum Federal Safety Standards." At issue in this case is whether the specific regulation prevention of accidental ignition, 49 C.F.R. § 192.751 (1980) envisions the working conditions faced by petitioner's employees when they performed a "hot tap" ...