decided: December 23, 1980.
COLUMBIA GAS OF PENNSYLVANIA, INC., PETITIONER
RAY MARSHALL, SECRETARY OF LABOR, AND OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, RESPONDENTS
PETITION FOR REVIEW OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION OSHRC No. 78-3861
Before Hunter and Weis, Circuit Judges, and Fisher,*fn* District Judge.
Opinion OF THE COURT
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" on the existing gas main. We believe this OPS regulation provides safety standards for the exact conditions of this case and hence find that section 4(b)(1) preempted OSHA's authority over the matter.
Whether the OPS regulations cover the worksite of Columbia's employees in this case requires an interpretation of the section 4(b)(1) term "working conditions." In Southern Railway Company v. OSHRC, 539 F.2d 335 (4th Cir.), cert. denied, 429 U.S. 999, 97 S. Ct. 525, 50 L. Ed. 2d 609 (1976), the fourth circuit addressed this issue in order to determine whether the Federal Railroad Administration (hereinafter "FRA") safety regulations concerning railroad transportation preempted OSHA's jurisdiction over the safety of railroad repair shops. In ruling that the FRA regulations did not preempt OSHA's authority the court defined "working conditions" as the "environmental area in which an employee customarily goes about his daily tasks."*fn8 We adopt this definition.
If "environmental area" covers anything, it covers the discrete work site of a trench in which employees are repairing a pipeline. At the administrative hearing, the ALJ noted petitioner's employees risked accidental explosion from escaping natural gas as well as the accumulation of odorless methene gas.*fn9 The ALJ also found that while the presence of natural gas could be detected by smell, atmospheric testing is required to determine the level of methene gas. Although these gases present risk of serious harm to petitioner's employees, they existed within the "environmental area" that is the subject of the pipeline safety regulations. Hence, the Office of Pipeline Safety regulations apply; and the general safety standard of OSHA is preempted by section 4(b)(1).
Our conclusion on section 4(b)(1) preemption is buttressed by the language of the preemptory regulation. The introductory sentence of 49 C.F.R. § 192.751 (1980) states: "Each operator shall take steps to minimize the danger of accidental ignition of gas in any structure or area where the presence of gas constitutes a hazard of fire or explosion...."*fn10 This language covers the risks from both natural and methene gas and applies directly to the performance of a "hot tap" on an existing gas main.
Prior decisions of the Commission further support the finding of section 4(b) (1) preemption. In Secretary v. Texas Eastern Transmission Corporation, 20 OSAHRC 712 (1975), the Commission found that a similar pipeline regulation preempted OSHA's jurisdiction over the transfer of liquefied natural gas. In so doing, the Commission examined the history of pipeline regulations and noted that the purpose of the pipeline safety regulations paralleled that of OSHA.*fn11 While the regulation in Texas Eastern, 49 C.F.R. § 192.12(b)(2), is not at issue in this case, the Commission's recognition that the policies underlying the OPS regulations are identical to those of OSHA allays any fear that gaps in the safety regulations might exist.
Although the substance of 49 C.F.R. § 192.751 (1980) is not identical to that of the OSHA safety standard, the two are similar. In this regard, the Commission in Texas Eastern stated, that when 4(b)(1) preemption is at issue, whether the language of the preempting regulation parallels that of the OSHA standard is unimportant:
Whether the OPS standards are the same or substantively different from the OSHA standards their content is of little moment. In Mushroom Transportation Co., Inc. No. 1588 (1974) we held that: "Once another Federal agency exercises its own authority over specific working conditions, OSHA cannot enforce its own regulations covering the same conditions. Section 4(b)(1) does not require that another agency exercise its authority in the same manner or an equally stringent manner."
20 OSHRC at 717. (emphasis added by Commission) (Citations omitted). We therefore need not examine the substance of the preemptory regulation; as long as it covers the identical working conditions, OSHA's jurisdiction is preempted.
In holding that the pipeline regulations preempt OSHA's authority, we emphasize that petitioner's employees are not without safety regulations. Although the OSHA standards are preempted, the OPS regulations afford the workers protection from job site hazards. The existence of specific concurrent safety regulations distinguishes this case from the litany of Federal Railway Administration cases in which courts uniformly found the OSHA standards as not preempted.*fn12 In those cases the creation of an industry wide exemption for the railroad, would, as the Southern Railway Court said: "leave thousands of workers in these non-operational areas of the railway industry exposed to unregulated industrial hazards ... (and) utterly frustrate the legislative purpose." Southern Railway, 539 F.2d at 338. Such a problem is not present in this case; only the working conditions of petitioner's employees the "hot tap" of a pipeline transporting natural gas are taken out of OSHA's jurisdiction by the OPS regulation.
Finally OSHA contends that even if this court interprets section 4(b)(1) as preempting OSHA's authority over the working conditions on Neville Island, petitioner failed to raise this issue at the administrative hearing and is therefore estopped to argue the question before this court. OSHA views section 4(b)(1) preemption as an affirmative defense that under Fed.R.Civ.Pro. 8(c) must be raised initially if it is to be considered on appeal. We disagree. Section 4(b)(1) preempts OSHA of subject matter jurisdiction once concurrent regulation is determined to cover the same working conditions. As such, a section 4(b)(1) claim can be raised initially on appeal or by the court sua sponte. 29 U.S.C. § 661(f) (1976); Fed.R.Civ.Pro. 12(h)(2). We appreciate, as the second circuit emphasized in Marshall v. Northwest Orient Airlines, Inc., that preemption issues usually require "an inquiry into complex issues of law and fact" and that "it is proper for a court to defer examination of such difficult questions of agency jurisdiction until a party has fully exhausted its administrative remedies." 574 F.2d 119, 122 (2d Cir. 1978). But we see no reason to remand the case for a second hearing on the preemption question.*fn13 The 4(b)(1) preemption is clear; the exact working conditions at issue are covered by the OPS regulation. Therefore we vacate the citation for violation of 29 C.F.R. 1926.651(v) and the final order of the Commission affirming that citation.