BEFORE THE
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
DEPARTMENT OF INDUSTRIAL RELATIONS
STATE OF CALIFORNIA

In the Matter of the Appeal of:

SOUTHERN CALIFORNIA GAS CO.
P.O. Box 3249
Los Angeles, CA 90051-1241

                              Employer

Docket Nos. 94-R4D3-586
                     through 588

 

DECISION AFTER
RECONSIDERATION

   

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and having granted the petitions for reconsideration filed by both Southern California Gas Co. (Employer) and the Division of Occupational Safety and Health (Division) in the above-entitled matter, makes the following decision after reconsideration. The Board today announces in this case and three others its view of the jurisdiction of Cal OSHA in relation to that of other federal and state agencies.

JURISDICTION

From December 23, 1993, through February 16, 1994, the Division conducted an accident inspection at a place of employment maintained by Southern California Gas Co. at Vanowen and DeSoto Streets, Canoga Park, California. On February 17, 1994, the Division issued three citations to Employer alleging in Citation No. 1, Item 1, a regulatory violation of section 14301(a)(2) [recordable occupational injury reporting], in Citation No. 2 a serious violation of section 1541(g)(1)(C) [exposure to concentrated flammable gas], and in Citation No. 3 a serious violation of section 5416(c) [removal of source of ignition in presence of flammable gas] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations. The Division proposed civil penalties of $325 for Citation No. 1, $5,000 for Citation No. 2, and $500 for Citation No. 3.

Employer filed a timely appeal from the citations contesting the existence of the violations, the abatement requirements, and the reasonableness of the proposed civil penalties. At hearing, Employer was permitted to amend its appeal to eliminate the abatement issues, to raise the classification of the violations alleged in Citation Nos. 2 and 3, and to assert the independent employee action defense. At that time, the Division’s motion to withdraw Citation No. 1 for lack of sufficient evidence was granted.

Employer also raised the issue of whether the Board’s jurisdiction was preempted by the Natural Gas Pipeline Safety Act [NGPSA], 49 App. U.S.C. section 11672 et seq.), an issue which was already pending before the Appeals Board in another case involving Employer. In light of that, the administrative law judge ruled:

"[T]his Decision will assume jurisdiction exists for the purpose of this appeal. Since the identical jurisdictional issues are raised by this appeal as in Docket No. 92-R4D2-983, the Appeals Board’s finding on that issue will be dispositive of this appeal. If Petition for Reconsideration is sought from this Decision, either party may raise the jurisdictional issue based on the Board’s ruling in Docket No. 92-R4D2-983 as if it had been determined by this Decision." (ALJD, p.2.)

The ALJ issued a decision on March 27, 1995, finding general violations of both section 1541(g)(1)(C) and section 5416(c) and assessing a civil penalty of $150 for each violation.

Both the Employer and the Division petitioned the Board for reconsideration, and Employer filed an opposition to the Division’s petition. On May 1, 1995, the Board ordered that the petitions be granted.

On March 27, 1998, the Board directed that the matter be set for oral argument. At the invitation of the Board, Employer filed a supplemental brief addressing the implications of the decision of the Court of Appeals in Southern California Gas Company v. Occupational Safety and Health Appeals Board, supra. On June 9, 1998, the Board heard oral argument from the parties.

FINDINGS AND REASONS FOR

DECISION AFTER RECONSIDERATION

In making this decision, the Board relies upon its independent review of the entire record in this case, including the transcripts of both the hearing and the oral argument before the Board. No new evidence has been taken. The Board adopts and incorporates by this reference the summary of evidence set forth on pages 3 through 6 of the ALJ’s decision.

ISSUE

Does the NGPSA preempt Cal OSHA from exercising jurisdiction over the safety and health of employees working on a natural gas pipeline which is part of an interstate network?

The instant citations arose out of an accident that occurred on December 13, 1993. Two employees were preparing to join a new pipe main to an old main; one was working down in an excavation and the other was on top. No "vent stack" had been installed to ventilate escaping gas into the atmosphere above. In the process of purging the lines, gas escaped into the excavation and was ignited by a propane burner being used to heat iron for fusing. The employee in the excavation suffered first and second degree burns and was hospitalized for 48 hours. After an investigation, the Division cited Employer under section 1541(g)(1)(C), for failing to take adequate precautions to prevent employees from being exposed to an excessive amount of flammable gas and, under section 5416(c), for permitting a source of ignition in the vicinity.

In Southern California Gas Company v. Occupational Safety and Health Appeals Board, supra, the court was confronted with a similar situation. Two Southern California Gas employees were attempting to vent a gas line with a water hose. They lost control of the hose when it was thrown about by the pressure of the gas and were injured as a result.

In both cases, the work being performed was on a natural gas pipeline that was part of an interstate network.

In finding preemption, the court in Southern California Gas acknowledged that a federal "statute which would preempt state health and safety regulation is narrowly construed to include within its scope only matters which are consistent with ‘a fair understanding of congressional purpose.’ (Citation omitted.)" (Id. at 204.) However, it went on to say, "The text of the NGPSA preemption provision is very broad." It provides that: "No State agency may adopt or continue in force [safety] standards applicable to interstate transmission facilities after the federal minimum standards become effective." (49 App. U.S.C. 1672(a).)

After reviewing the provision of the NGPSA, the extensive regulatory scheme adopted by the Secretary to carry out those provisions and applicable case law, the court concluded that the California regulation was preempted:

"We find that it was the ‘clear and manifest purpose of Congress’ to occupy the field of interstate natural gas pipeline safety, in the broadest sense possible. (See Medtronic, Inc. v. Lohr, (1996), 518 U.S. 470.) The state was precluded from regulating the design of equipment or its use in the operation or maintenance of interstate natural gas pipelines. Since Congress has fully occupied the field of natural gas pipeline safety, there is no room for state supplementary regulation, even if there is no conflict with any given provision. (See Rice v. Santa Fe Elevator Corp. (1947) 331 U.S. 218, 236.)." (Id., at pp. 209-210.)

In a companion case issued this same date—Yellow Freight System, Inc., OSHAB 94-2565, Decision After Reconsideration—we adopt the approach taken by the court in Southern California Gas and point out that the ultimate question in any preemption case is one of intent: Did Congress intend to oust the States from jurisdiction over the conduct in question? Intent can be either express or implied. (Jones v. Rath Packing Co. (1977) 430 U.S. 519, 525; Fidelity Fed. Sav. & Loan v. de la Cuesta (1982) 458 U.S. 141, 152-153.) Where the statute contains a clear and express statement of the extent to which state regulation is prohibited, "the court’s task is an easy one." (English v. General Electric Co. (1990) 496 U.S. 72, 78-79.) The Supremacy Clause controls and the analysis ceases. (See Yellow Freight System, Inc., supra.)

Given the similarity of the facts presented in this case to those of Southern California Gas, given the broad and explicit language of the NGPSA, given the extensive and detailed regulatory scheme adopted by the Secretary of Transportation, and given the case law which has developed under the NGPSA, we conclude that the Division is preempted from applying sections 1541(g)(1)(C) and 5416(c) to the facts at hand.

DECISION AFTER RECONSIDERATION

The decision of the ALJ, dated March 27, 1995, is set aside and the appeal filed by Southern California Gas Company is granted

JAMES P. GAZDECKI, Chairman
BILL DUPLISSEA, Member
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA