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

In the Matter of the Appeal of:

SOUTHERN PACIFIC TRANSPORTATION
Southern Pacific Building #835
One Market Plaza
San Francisco, CA 94105

                                           Employer

Docket No. 94-R3D5-3142

 

 

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 petition for reconsideration filed by Southern Pacific Transportation (Employer) 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

Between June 1 and October 19, 1994, the Division of Occupational Safety and Health (Division) conducted an inspection at a place of employment maintained by Employer at 2401 East Sepulveda Boulevard, Long Beach, California. On October 19, 1994, the Division issued to Employer Citation No. 1, alleging five general violations of the occupational safety and health standards and orders found in Title 8, California Code of Regulations. Item 1 alleged a violation of section 3203(a)(1) [IIPP did not identify responsible party] with a proposed civil penalty of $185; Item 2 alleged a violation of section 3241(c) [stored material shall not create a hazard] with a proposed civil penalty of $240; Item 3 alleged a violation of section 5144(a) [provision of respiratory equipment] with a proposed civil penalty of $240; Item 4 alleged a violation of section 5162(a) [emergency eyewash] with a proposed civil penalty of $440; and Item 5 alleged a violation of section 5162(b) [emergency shower] with a proposed civil penalty of $440.

At the hearing before an administrative law judge [ALJ] of the Board, Employer and the Division indicated that Items 1, 4 and 5 had been resolved. Upon a finding of good cause, the ALJ granted the Division’s motion to reduce the penalty amount for those violations to $150 for Item 1 and to $225 each for Items 4 and 5, and granted Employer’s motion to withdraw its appeal from those items, as amended. The hearing then proceeded on Items 2 and 3. At that time, Employer raised the issue of whether the Board’s jurisdiction was preempted by section 20106 of the Federal Rail Safety Act [FRSA], 49 U.S.C. section 20101, et seq., and by section 5125(a) of the Hazardous Materials Transportation Act [HMTA], 49 U.S.C. section 5101 et seq.

The ALJ issued a decision on November 15, 1995, (1) ruling that neither the FRSA nor the HMTA preempted Board jurisdiction; (2) granting Employer’s appeal as to Item 2 based on a finding that the cited safety order did not apply to the facts presented, and (3) denying Employer’s appeal from Item 3 based on its failure to provide its gate clerks with respiratory equipment.

Employer filed its petition for reconsideration on December 14, 1995, the petition was granted on January 8, 1996, and the Division filed its answer on January 22, 1996.

On March 27, 1998, the Board directed that the matter be set for oral argument and invited the parties to address the implications of the decision of the court of appeals for the second appellate district in Southern California Gas Company v. Occupational Safety and Health Appeals Board (October 7, 1997) 58 Cal.App.4th 200, review denied, January 28, 1998. On June 22, 1998, the Board heard oral argument.

ISSUES

1. Is Cal OSHA preempted by the FRSA from exercising its jurisdiction to ensure that the gate clerks at Employer’s Intermodal Container Transfer Facility [ICTF] in Long Beach, California, are provided with approved respiratory equipment?

2. Is Cal OSHA preempted by the HMTA from exercising its jurisdiction to ensure that the gate clerks at Employer’s Intermodal Container Transfer Facility [ICTF] in Long Beach, California, are provided with approved respiratory equipment?

3. Is any other state or federal agency vested with health and safety jurisdiction over the place of employment involved in this case; if so, is that agency actively exercising its jurisdiction to see to it that the gate clerks at the Long Beach facility are provided with approved respiratory equipment?

4. Did Employer violate section 5144(a) by failing to provide respirators for its gate clerks?

5. Is Cal OSHA preempted by the FRSA or the HMTA from exercising its jurisdiction to determine whether section 3241(c) requires the strapping of containers?

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 2 and 3 of the ALJ’s decision.

Employer’s Long Beach facility is its largest Intermodal Container Facility and may well be the largest in the world. It is a facility where containerized cargo changes from one mode of transport to another. Containers and trailers arriving by sea are trucked to the facility for shipment by rail; those arriving by rail are trucked to the harbor for transport by sea.

Of the hundreds of thousands of containers and trailers passing through the facility each year, many contain hazardous materials. Employer’s gate clerks inspect cargo arriving by truck to ensure that containers and trailers containing hazardous materials are protected in accordance with U.S. Department of Transportation [DOT] standards. To do so, the truck driver breaks the seal and opens the container or trailer for the clerk’s inspection. If it is leaking or incorrectly packed, security is contacted. In performing their duties, clerks have been exposed to spills, leaks, and the noxious vapors that build up inside the containers. Employer does not provide respiratory equipment to protect against those hazards.

JURISDICTIONAL ISSUES

In a companion case, Yellow Freight System, Inc., OSHAB 94-2565, Decision After Reconsideration, issued this same date, we set forth in detail the approach which the Board will henceforth take in cases, like this one, involving the delicate and complex relationship of the States to the national government under our federal system. Our approach follows that of the United States Supreme Court and is grounded in the recognition that the Constitution, explicitly, in the Tenth Amendment and, implicitly, in its structural assumptions and tacit postulates, requires due deference to legitimate state interests.

The Supreme Court, mindful that "[t]he Constitution . . . looks to an indestructible Union, composed of indestructible States," (Texas v. White (1869) 74 U.S. (7 Wall.) 700, 725; and see Alden v. Maine (June 23, 1999) 119 S.Ct. 2240, 2245-2246 [67 U.S.L.W. 4601]), has developed the doctrine of federal preemption—a doctrine which recognizes that legitimate state interests should yield to countervailing federal interests only where no other solution is possible. The preeminent goal is the reconciliation of state and federal interests. (Merrill Lynch, Pierce, Fenner & Smith v. Ware (1973) 414 U.S. 117, 127; Silver v. New York Stock Exchange (1963) 373 U.S. 341, 357.)

Utilizing the analysis developed in Yellow Freight System, supra, we now turn to the case at hand. Because the two litigated violations raise very different jurisdictional issues, they are treated separately. We begin with section 5144(a), the failure to provide gate clerks with approved respiratory equipment.

1. Is Cal OSHA preempted by the FRSA from exercising its jurisdiction to ensure that the gate clerks at Employer’s Intermodal Container Transfer Facility [ICTF] in Long Beach, California, are provided with approved respiratory equipment?

I

Both California and the federal government have a significant interest in railway safety. On the one hand, Congress, acting under the power vested in it by the Commerce Clause, enacted the FRSA "to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents" (49 U.S.C. 20101) and the HMTA "to provide adequate protection against the risks to life and property inherent in the transportation of hazardous material in commerce by improving the regulatory and enforcement authority of the Secretary of Transportation." (49 U.S.C. 5101.) Pursuant to those statutory mandates, the Secretary has developed an extensive regulatory scheme. (49 C.F.R. Parts 106 through 180.)

On the other hand, California declared and described its distinct state interest when it enacted the Occupational Safety and Health Act of 1973 [the Act] ". . . for the purpose of assuring safe and healthful working conditions for all California working men and women by authorizing the enforcement of effective standards, assisting and encouraging employers to maintain safe and healthful working conditions, and by providing for research, information, education, training and enforcement in the field of occupational safety and health." (Lab. Code, 6300.) (Emphasis supplied.) California’s particular interest in the safety and health of railroad employees at work within its borders is to be found in Labor Code section 6800(a) which provides that the Division has jurisdiction over "[t]he safety and health of railroad employees employed in offices and in shops devoted to the construction, maintenance or repair of railroad equipment, and all other railroad employees with respect to occupational health, including, but not limited to, air contaminants, noise, sanitation and availability of drinking water." (Emphasis supplied.) To implement those interests, the California Occupational Safety and Health Standards Board adopted the extensive regulatory scheme found in Title 8, and, in particular, promulgated section 5144(a)(2) which requires that "respirators shall be provided by the employer when such equipment is necessary to protect the health of the employee."

II

There is no question that Congress has authority under the Commerce Clause to regulate railway safety; nor is there any question that the FRSA and the HMTA satisfy the requirement that the exercise of that authority be clearly stated. (See Yellow Freight System, Inc., supra, and cases cited therein.)

Having established the proper exercise of congressional authority, traditional preemption analysis begins, and the ultimate question is one of intent: Did Congress intend to oust the States of jurisdiction over the conduct in question? (English v. General Electric Co. (1990) 496 U.S. 72, 78-79; Shaw v. Delta Air Lines, Inc. (1983) 463 U.S. 85, 95.)

That 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.) Here, unlike Yellow Freight, both the FRSA and the HMTA contain express statements of congressional intent. In Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 517, the Supreme Court explained the implications of such an express declaration of intent: "Congress’ enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not pre-empted." Therefore, once a court "identif[ies] the domain expressly preempted," an inference may be drawn that conduct beyond its borders is open to state regulation without the necessity of exploring the possibility of implied preemption. (Id.; See Freightliner Corp. v. Myrick (1995) 514 U.S. 280, 288.)

While both the FRSA and the HMTA contain express preemption provisions, those provisions differ significantly in scope. For reasons that will later become apparent, we begin with the FRSA.

III

Because of the high value it placed on railway safety, Congress acted to ensure that state law could and would be used to fill any gaps which existed or emerged in the federal regulatory scheme. It therefore expressly provided, in section 20106 of the FRSA, that state regulation would be displaced only where the Secretary of Transportation had adopted regulations applicable to a specific danger or hazard:

"A State may adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or issues an order covering the subject matter of the State requirement." (Emphasis supplied.)

Crucial to the resolution of this case is the meaning and scope of the words, "covering the subject matter." Nowhere in the regulations does the Secretary mention respiratory protective equipment. However, as Employer points out, there are any number of regulations dealing with the transportation, handling, and storage of hazardous materials. (Post Hearing Brief, pp. 4-6, 12.) Depending, therefore, on how broadly or narrowly one interprets the words "covering the subject matter," section 5144(a) may or may not be preempted.

In Yellow Freight, we identified four precepts which the U.S. Supreme Court has utilized in resolving such interpretative issues in a manner consistent with the distinct and legitimate interests of the States as reflected in the Tenth Amendment and the structural assumptions and tacit postulates of the Constitution. Three of them are relevant and helpful here.

First, there is the presumption that "Congress did not intend to displace state law." (Maryland v. Louisiana (1981) 451 U.S. 725, 746.) The burden of overcoming that presumption rests with the party asserting preemption, (Silkwood v. Kerr-McGee Corp. (1984) 464 U.S. 238, 255), and any ambiguity is to be resolved in favor of the states and against preemption. (Tribe, American Constitutional Law (2nd Ed., 1988) 6-25, p. 479.)

Clearly, then, Employer has the burden of overcoming the presumption that section 5144(a) is a legitimate exercise of California’s interest in workplace safety, and any ambiguity in the breadth of the words "covering the subject matter" must be resolved against Employer and in favor of the enforceability of section 5144(a).

The second, related precept provides that the strength of the presumption against preemption is enhanced to the extent that the asserted state interest is strong and traditional. (Bibb v. Navajo Freight Lines (1959) 359 U.S. 520, 524.) Safety is just such an interest. (CSX Transportation, Inc. v. Easterwood (1993) 507 U.S. 658, 664); Safety measures carry a strong presumption of validity when challenged in court. (Medtronic, Inc. v. Lohr (1996) 518 U.S. 470, 485; Hillsborough County, Florida v. Automated Medical Laboratories, Inc. (1985) 471 U.S. 707, 719; Bibb v. Navajo Freight Lines, supra.)

In CSX Transportation v. Easterwood, supra, the U.S. Supreme Court had occasion to interpret the language now found in section 20106 in light of the "strong presumption of validity." The issue was whether the Secretary of Transportation had issued regulations covering the same subject matter as Georgia’s negligence law pertaining to the maintenance and the operation of trains at grade crossings. The Court first considered the meaning of the crucial language, "covering the subject matter," saying (at p. 1738):

"To prevail on the claim that the regulations have pre-emptive effect, petitioner must establish more than that they ‘touch upon’ or ‘relate to’ that subject matter, cf. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383-384 (statute’s use of ‘relating to’ confers broad pre-emptive effect), for ‘covering’ is a more restrictive term which indicates that pre-emption will lie only if the federal regulations substantially subsume the subject matter of the relevant state law. See Webster’s Third New International Dictionary 524 (1961) (in the phrase ‘policy clauses covering the situation,’ cover means ‘to comprise, include, or embrace in an effective scope of treatment or operation’). The term ‘covering’ is in turn employed within a provision that displays considerable solicitude for state law in that its express pre-emption clause is both prefaced and succeeded by express saving clauses. See supra, at 1736."

The Court went on to hold (at p.1740) that, "In light of the relatively stringent standard set by the language of section 434 [now 20106] and the presumption against pre-emption, and given that the regulations provide no affirmative indication of their effect on negligence law, we are not prepared to find pre-emption. . . ." (Id., at 668.)

In Southern Pacific v. Oregon Public Utilities Commission (9th Cir. 1993) 9 F.3d 807, Southern Pacific asserted that a PUC order banning train whistles at certain crossings in the city of Eugene between 10 p.m. and 6 a.m. was preempted under the FRSA by a regulation requiring every lead locomotive to be equipped with an audible warning device capable of producing a minimum level of sound 100 feet forward of the locomotive (49 C.F.R. 229.129).

The 9th Circuit, relying on Easterwood, rejected the argument:

"The issue is . . . whether, as the Supreme Court put it in Easterwood, the federal regulation ‘substantially subsumes the subject matter’ of the state regulations.’ (Citation omitted.] In Easterwood, the Court made clear that in light of the restrictive term ‘cover’ and the express savings clauses in the FRSA, FRSA preemption is even more disfavored that preemption generally. (Citation omitted.) In applying its reading of the FRSA to the facts of Easterwood, moreover, the Court did not look at broad categories such as ‘railroad safety,’ it looked at the narrow categories of ‘warning devices’ installed at federally-improved grade crossings and ‘train speed.’ (Citation omitted.) Applying a comparable level of specificity in our analysis, we conclude that FRSA 229 does not preempt the Oregon regulations because the ‘subject matter’ of 229 is the sound-producing capacity of train whistles, a subject matter which does not substantially subsume the restrictions on use of whistles embodied in the Oregon regulations." (at p. 813, Emphasis by the Court.)

Employer’s assertion that the Secretary of Transportation has issued regulations covering the same subject matter as section 5144(a) must therefore be evaluated in light of the strong presumption against preemption and the "specificity" required by the "relatively stringent standard" for preemption under section 20106.

But before turning to those regulations, there is a third interpretative precept to consider: Courts are "more reluctant to infer pre-emption from the comprehensiveness of regulations than from the comprehensiveness of statutes," (Hillsborough County, Florida v. Automated Medical Laboratories, Inc., supra, at p. 717); furthermore, they will accord considerable deference to a pronouncement—or the absence of such pronouncements—by the affected federal agency of the preemptive reach of its regulations. (Id.. at 718; California Coastal Commission v. Granite Rock Co. (1987) 480 U.S. 572, 582-583.)

In Hillsborough, the Court explained the reasoning behind this precept:

"As a result of their specialized functions, agencies normally deal with problems in far more detail than does Congress. To infer pre-emption whenever an agency deals with a problem comprehensively is virtually tantamount to saying that whenever a federal agency decides to step into a field, its regulations will be exclusive. Such a rule, of course, would be inconsistent with the federal-state balance embodied in our Supremacy Clause jurisprudence. See Jones v. Rath Packing Co., (1977) 430 U.S. 519, 525.

The Hillsborough Court went on to point out that:

"[B]ecause agencies normally address problems in a detailed manner and can speak through a variety of means, including regulations, preambles, interpretive statements, and responses to comments, we can expect that they will make their intentions clear if they intend for their regulations to be exclusive. Thus, if an agency does not speak to the question of pre-emption, we will pause before saying that the mere volume and complexity of its regulations indicate that the agency did in fact intend to pre-empt. Given the presumption that state and local regulation related to matters of health and safety can normally coexist with federal regulations, we will seldom infer, solely from the comprehensiveness of federal regulations, an intent to pre-empt in its entirety a field related to health and safety." (Id. at 717-718; see also California Coastal Commission v. Granite Rock Co.(1987) 480 US 572, 582-583.)

Where, on the other hand, an agency does speak to the preemption issue, its pronouncements are entitled to considerable weight since it is "uniquely qualified" to make such a determination. (Medtronic, Inc. v. Lohr, supra, at p. 496; Yellow Freight System, Inc., supra.)

As we shall see (infra, at pp. 12-14), the Secretary of Transportation "has spoken to the question of preemption" in a manner which indicates that existing regulations do not extend to the use of respirators to protect employees, such as gate clerks, against air contaminants.

Thus, the mere comprehensiveness of the regulations promulgated by the Secretary concerning the packaging and transport of hazardous cargo will not support a finding of preemption in the absence of a specific federal provision establishing the means by which employees are to be protected from air contaminates released by damaged or improperly packed containers or trailers.

IV

Employer relies on a number of regulations scattered throughout Subchapter C of 49 C.F.R. Although none specifically mentions respiratory equipment, they do—according to Employer—indicate a clear intention on the part of DOT to cover all aspects of the transportation, loading, storage, and handling of hazardous materials.

Bearing in mind the "specificity" required before preemption will be found under the "relatively stringent standard" of section 20106, the reluctance of courts to infer preemption based on assertions of regulatory comprehensiveness, and the weight to be given agency pronouncements concerning preemption, those regulations must be carefully examined to determine whether Employer has carried its burden of overcoming the "strong presumption" against preemption. In doing so, any ambiguity is to be resolved in favor of the California regulation and against preemption.

49 C.F.R. section 174.16 describes how the delivery of hazardous materials to railway facilities is to be accomplished and how the material is to be stored. It also provides for the return of materials if safe storage is not possible. It does not address the protection of employees exposed to possible spills, breakage, and contamination during the receipt and storage of those materials.

Section 174.55 describes the manner in which packages, containers, and transport vehicles are to be protected during loading. It does not address the protection of employees when incidents occur during the process.

Section 174.81 provides for the segregation of packed hazardous materials. It does not address the protection of employees from such materials.

Section 171.15 establishes a notification procedure to be followed in the event of spills, breakage, and contamination. Section 174.750 establishes additional notification requirements where an incident involves radioactive material. Neither regulation addresses the protection of employees during such incidents.

Sections 173.3 and 174.8 authorize Department of Transportation inspections concerning the manufacture, packaging and storage of hazardous material. Neither regulation deals with the protections to be afforded employees should an incident occur.

Section 174.61 requires that transport vehicles, freight containers and packages containing hazardous materials be designed, loaded, and braced so as to avoid incident. Section 174.63 sets forth similar requirements for portable tanks, bulk containers, cargo tanks and tank car tanks. Neither section addresses the manner in which employees are to be protected should an accident or exposure occur.

Part 173 contains extensive regulations dealing with the manner in which hazardous material is to prepared for shipment, packaged, and contained. It does not address the protections to be afforded employees where exposure occurs. Indeed, section 173.30, dealing with the loading and unloading of transport vehicles simply refers the reader to the already discussed provisions of Part 174.

What emerges from an examination of the cited regulations is a carefully drafted and thorough set of regulations devoted to the handling and packaging of hazardous cargo so as to avoid incidents and accidents, but a complete absence of regulations—other than the notification of proper authorities—devoted to equipment to be provided for the protection of employees in the event of accident or exposure.

Those regulations are reflected in the pamphlet which Employer distributes and utilizes throughout its organization, entitled Approved Methods for Loading and Restraining Shipments of Hazardous Materials for Trailer/Container on Flat Car Movements. (Pamphlet 6-C, Exhibit A.) Like the regulations, it contains exhaustive and detailed directions as to the packaging of hazardous cargo, but little else.

The absence of regulations dealing with employee protection is not due to any oversight on the part of the Secretary. Rather, it reflects a deliberate policy choice. In 1978, the Federal Railway Administration [FRA] issued a formal notification that it was withdrawing its notice of proposed rulemaking with respect to railroad occupational safely and health standards, based on a determination that it should not attempt to regulate in an area already covered by Federal Occupational Safety and Health Standards. (43 FR 10583, March 14, 1978.] In the accompanying Policy Statement, the FRA explained:

"While the FRA is vested with broad authority in all areas of railroad safety, including those of an occupational nature, we believe it is important to determine the extent to which that authority can and should be exercised in order to assure an effective and coherent overall railroad safety program. To date, the majority of our efforts to assure continuing safety or to improve the present level of railroad safety has been concentrated in those areas of the railroad industry that are directly related to railroad operations—that is, the provision of a transportation service by rail. This is reflected throughout the existing FRA regulations which can be classified generally as those related to (1) track, roadbed, and associated devices and structures, (2) [railway] equipment and (3) human factors.

"In these traditional areas of railroad safety, FRA has developed a special expertise which makes this agency uniquely qualified to play the primary role in the Federal Government's efforts to assure safe employment and places of employment for railroad employees engaged in activities related to railroad operations. We, therefore, believe that FRA must exercise a continuing role in the area of railroad occupational safety and health. However, given the present staffing level for field investigation and inspection, the FRA has determined that, at this time, it would not be in the best interests of the public and of railroad safety for this agency to become involved extensively in the promulgation and enforcement of a complex regulatory scheme covering in minute detail, as do the OSHA standards, working conditions which, although located within the railroad industry, are in fact similar to those of any industrial workplace. Rather, we believe that the proper role for FRA in the area of occupational safety in the immediate future is one that will concentrate our limited resources in addressing hazardous working conditions in those traditional areas of railroad operations in which we have special competence."

The Policy Statement makes it clear that DOT has chosen to confine its regulatory activity to those areas of the railway industry that are directly related to railroad operations and to forego the exercise of regulatory power over hazards similar to those found in the industry at large. Regulation of those hazards is to be left to federal OSHA [Fed OSHA] and to States, like California, with federally qualified plans. (Southern Pacific Transportation Company, OSHAB 79-796, Decision After Reconsideration (Jan. 30, 1985), pp. 5-6; See also Medtronic, Inc. v. Lohr, supra, at p. 496; Yellow Freight System, Inc., supra.)

The Policy Statement does not mention the use of respiratory equipment. However, it does provide that: "OSHA regulations concerning personal protective equipment apply according to their terms, except to the extent the general requirements might be read to require protective equipment responsive to hazards growing out of railroad operations." Earlier in the Statement, "railroad operations" are defined as referring "to the movement of equipment over rails."

In Southern Pacific Transportation Company, OSAHRC Docket No. 81-2521 (July 5, 1983); 1983-1984 OSHD 26,616, 11 OSHC 1662, the federal OSHA Review Commission had occasion to consider the effect of that language on the OSHA regulations requiring the use of respirators.

"[T]he FRA chose to limit its involvement in the safety and health area to conditions and procedures necessary to achieve the safe movement of equipment over the rails. Furthermore, there is support for the interpretation that the FRA acknowledged the applicability of OSHA’s personal protective equipment standards except where they are applied to hazards actually arising out of the movement of railroad equipment. Since conditions giving rise to the need for respiratory equipment are related to the hazard of toxic vapors and not to movement of railroad equipment, the FRA policy statement is not deemed to preempt application of the [respiratory] protective equipment standard. . . ."

It therefore upheld a citation alleging that Southern Pacific failed to require the wearing of respirators by employees potentially exposed to hydrochloric acid while switching railroad cars.

Gate clerks, whose job it is to inspect cargo arriving by truck from the harbor, are even more removed from the "actual movement of equipment over rails" than employees engaged in switching operations. The hazards they face, "although located within the railroad industry, are in fact similar to those in any industrial workplace," and thus, under the FRA policy, open to regulation by other agencies.

V

Given the absence of DOT regulations specifically addressing the need for respiratory equipment as required by the "relatively stringent standard" of section 20106 (ante, pp. 7-8, 10-11); given the reluctance of courts to infer preemption from generalized claims of regulatory comprehensiveness (ante, at pp. 9-10); given the weight accorded an agency’s pronouncements—like those found in the FRA Policy Statement—of intent to limit the reach of its regulations (ante, pp. 10, 12-14); given the requirement that any ambiguity in the scope of DOT’s regulations be resolved in favor of the California regulation and against preemption (ante. pp. 6-7); and, finally, given the strong and well established presumption against preemption arising from the Tenth Amendment (ante, at p. 7), we are impelled to conclude that Cal OSHA is not preempted under section 20106 of the FRSA from requiring Employer to provide respirators for the gate clerks at its Long Beach Intermodal Container Facility.

2. Is Cal OSHA preempted by the HMTA from exercising its jurisdiction to ensure that the gate clerks at Employer’s Intermodal Container Transfer Facility [ICTF] in Long Beach, California, are provided with approved respiratory equipment?

I

The other statute that Employer claims preemptive is the Hazardous Materials Transportation Act. HMTA has two preemption provisions, both of which differ from that found in the FRSA. Under section 5125(b):

"[A] law, regulation, order, or other requirement of a State, political subdivision of a State, or Indian tribe about any of the following subjects, that is not substantively the same as a provision of this chapter or a regulation prescribed under this chapter, is preempted:

. . .

(B) the packing, repacking, handling, labeling marking, and placarding of hazardous material." (Emphasis supplied.)

"Handling" is a broad term encompassing of a number of elements. Those elements are described in section 5106:

"The Secretary of Transportation may prescribe criteria for handling hazardous material, including—

(1) a minimum number of personnel;

(2) minimum levels of training and qualifications for personnel;

(3) the kind and frequency of inspections;

(4) equipment for detecting, warning of, and controlling risks posed by the hazardous material;

(5) specifications for the use of equipment and facilities used in handling and transporting the hazardous material; and

(6) a system of monitoring safety procedures for transporting the hazardous material."

As we have seen, the Secretary has addressed certain of those elements. There are extensive regulations specifying the manner in which hazardous material is to be prepared for shipment, packaged, contained, loaded, and unloaded (ante, pp. 10-12), as well as regulations devoted to inspections and training. (49 C.F.R. 174.9 and 172.700 et seq.) But the Secretary has, for the policy reasons described above, issued no regulations dealing with the manner in which employees are to be protected should an accident or exposure occur. In the words of section 5106, there are no regulations specifying "equipment for controlling the risks posed by hazardous material."

Employer takes the position that that makes no difference: Once the Secretary promulgates regulations dealing with any element in the broad category of "handling hazardous material," a state regulation addressing any element of that category—no matter how remote—is preempted under section 5125(b).

Such an interpretation fails to take into account the Constitutional policy, expressed in the Tenth Amendment and the structural assumptions and tacit postulates of the Constitution, that a legitimate State interest should yield to a countervailing federal interest only where no other solution is possible. And it ignores the precepts, described above, which the Supreme Court has fashioned to effectuate that policy.

A better, more appropriate interpretation is that the Secretary has chosen to restrict its jurisdiction over the "handling of hazardous materials," to the manner in which they are to be prepared for shipment, packaged, contained, loaded and unloaded, leaving federal and state OSHA to regulate the manner in which employees are to be protected should an accident or exposure occur.

That interpretation comports with the strong presumption against preemption and with the requirement that any ambiguity be resolved in favor of state regulation. (ante, pp 6-7.) It also comports with the requirement that, where an agency speaks to the preemption issue, its pronouncements are entitled to considerable weight. (ante, pp. 9-10.)

We have already discussed and quoted at length from the FRA Policy Statement ceding jurisdiction over personal protective equipment not directly involved in rail transport to Fed OSHA and, consequently, to states like California with federally qualified plans. (ante, pp. 12-14.) What has not been discussed is the provision found in section 5107 of the HMTA in which Congress itself acknowledged OSHA’s concurrent jurisdiction over the handling of hazardous materials.

Section 5107(f)(2) provides:

"An action of the Secretary of Transportation under . . . section[s] 5106 ["Handling criteria"] . . . is not an exercise, under section 4(b)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653(b)(1)), of statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health."

29 U.S.C. section 653(b)(1) is the provision found in the federal Occupational Safety and Health Act of 1970 which withdraws OSHA jurisdiction over other federal agencies which "exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health." By specifically repudiating the operation of section 653(b)(1) vis-a-vis section 5106, Congress acknowledged the concurrent regulatory authority of Fed OSHA over the "handling of hazardous material," (Yellow Freight System, Inc., OSHRC, Docket No. 93-3292 (July 31, 1996), 1995-1997 OSHD 31,105), thereby making way for Fed OSHA not only to issue regulations dealing with the respirator issue—which it has done in 29 C.F.R. section 1910.134(a)(2)—but also to cede to states, like California, the right to enforce . . . standards " . . . with respect to which [such] a Federal standard has been promulgated under section 655." (29 U.S.C. 667(b).)

We therefore conclude that section 5125(b) of the HMTA does not preempt the application of section 5441(a) of our regulations to the activities of Employer’s gate clerks.

II

The other preemption provision of the HMTA is found in section 5125(a):

"[A] requirement of a State, political subdivision of a State, or Indian tribe is preempted if—

(1) complying with a requirement of the State, political subdivision, or tribe and a requirement of this chapter or a regulation prescribed under this chapter is not possible; or

(2) the requirement of the State, political subdivision or tribe, as applied or enforced, is an obstacle to accomplishing and carrying out this chapter or a regulation prescribed under this chapter."

First of all, because the Secretary of Transportation has chosen not to exercise his authority to prescribe regulations dealing with the manner in which employees are to be protected should an accident or exposure occur, there are no federal regulations rendering compliance with section 5144(a) either impossible or making it an obstacle to the accomplishment of the purposes and goals of the HMTA. Nor is there any indication that making respirators available to gate clerks will make it impossible for Employer to comply with any other DOT regulations.

In Medtronic, Inc. v. Lohr, supra, the Supreme Court made it clear that a "federal agency to which Congress has delegated its authority to implement the provisions of the Act, . . . is uniquely qualified to determine whether a particular form of state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’" (Id. at p. 496.) (Emphasis supplied.) Here, as we have seen (ante, pp. 12-14), DOT has issued a Policy Statement recognizing that OSHA regulations requiring personal protective equipment for employees not directly involving transport over rail do not interfere with the execution and accomplishment of its mission.

Finally, as noted above, Congress has provided, in section 5107(f)(2), that regulations issued pursuant to section 5106 do not exclude or preempt OSHA regulations.

We therefore conclude that section 5125(a) of the HMTA does not preempt the application of section 5441(a) of our regulations to Employer’s gate clerks.

III

In CSX Transportation, Inc. v Public Utilities Commission of Ohio (6th Cir. 1990) 901 F.2d 497, cert. denied, 498 U.S. 1066., the court was troubled by the variety of preemptive standards applicable in railway safety cases. In a well reasoned opinion, it concluded there should be a single controlling standard, and asked itself:

"[S]hould a train carrying a load of hazardous waste be considered a railroad which happens to be carrying hazardous waste (thus suggesting application of the FRSA preemption provision) or hazardous waste which happens to be carried by rail (thus suggesting application of the HMTA preemption provision)?" (Id. at 501.)

After reviewing the legislative history of the two laws, it found that the broad language in section 20106 of the FRSA covering "‘any law relating to railroad safety’ applies to the HMTA as it relates to the transportation of hazardous material by rail," and concluded, "it is clear that matters of railroad safety are governed by the preemption provision of the FRSA." (Id. at 501-502.) On that basis, the court struck down a state statute which allowed the adoption of rules duplicating those issued by the DOT, and thus was in clear conflict with the section 20106 preemption of state laws or regulations covering the same subject matter as federal regulations.

That is not, as we have seen (ante, pp. 10-14), the situation here. There is no federal regulation addressing the protection to be afforded employees, like gate clerks, who are exposed to air contaminants.

What is relevant and important is the court’s determination that there should be a single preemption standard in railroad safety cases—the one found in section 20106 of the FRSA. We heartily concur with that conclusion, and adopt it as a realistic and practical alternative to the necessity of engaging in a painstaking analysis of three distinct preemption standards in every railway case involving hazardous materials.

IV

There remains one final constitutional issue. Employer suggests at one point that the enforcement of section 5144(a) "would pose a burden on interstate commerce," in contravention of Article I, section 8, clause 3 of the United States Constitution. (Post Hearing Brief, p. 16.)

While the Commerce Clause gives Congress paramount and broad power over interstate commerce, the United States Supreme Court has long recognized that that power is not exclusive and that the States may regulate matters of local concern, even though such regulation may have some impact on interstate commerce. (Cooley v. Board of Wardens of Port of Philadelphia (1851) 12 How 299, 13 L.Ed. 996; Cities Service Gas Co. v. Peerless Oil & Gas Co. (1950) 340 U.S. 179, 186.) As a general principle, courts will uphold a state regulation that impinges on interstate commerce, (1) if the regulation is rationally related to a legitimate state interest, and (2) if the burden imposed on interstate commerce by the regulation is outweighed by the state interest. (Southern Pacific Co. v. Arizona (1945) 325 U.S. 761, 770-71; Cities Service Gas Co. v. Peerless Oil & Gas Co., supra, at pp. 186-187.)

California, as we have seen (ante, p. 5), has a legitimate and significant interest in protecting the gate clerks at Employer’s Long Beach facility against exposure to air contaminants. (Lab. Code 6300 and 6800(a), CSX Transportation v. Easterwood, supra; Bibb v. Navajo Freight Lines, supra; Southern Pacific Transportation., OSHAB 79-796, Decision After Reconsideration (Jan. 30, 1985); Atchison, Topeka and Santa Fe Railway Company, OSHAB 86-1700, Decision After Reconsideration (March 17, 1988).)

As for the weighing—or "balancing"—portion of the test, the imposition of section 5144(a) creates no significant burden on interstate commerce. Employer need do no more than make respirators available to the gate clerks assigned to its Long Beach Intermodal Terminal. No employee or operation in any other State will be affected in the least. No modification of any equipment traveling over rail is necessary, and no modification of any track, roadbed, or associated device is required. (See Specialized Carriers & Rigging v. Commonwealth of Virginia (4th Cir. 1986) 795 F.2d 1152, 1159-1161; Interstate Towing v. City of Cincinnati, (6th Cir. 1993) 6 F.3d 1154, 1162-1166.)

3. Is any other state or federal agency vested with health and safety jurisdiction over the place of employment involved in this case; if so, is that agency actively exercising its jurisdiction to see to it that the gate clerks at the Long Beach facility are provided with approved respiratory equipment?

As we pointed out in Yellow Freight System, supra, the preceding analysis of federal preemption does not exhaust the jurisdictional issues presented. There remains the question of legislative authorization: Has the California Legislature empowered Cal OSHA to protect the safety and health of railroad employees?

Labor Code section 6800(a) provides:

"The division has jurisdiction over:

(a) The safety and health of railroad employees employed in offices and in shops devoted to the construction, maintenance or repair of railroad equipment, and all other railroad employees with respect to occupational health, including, but not limited to, air contaminants, noise, sanitation and availability of drinking water." (Emphasis supplied.)

In Southern Pacific Transportation Co., supra, the Appeals Board held that the Division’s jurisdiction over railway employees under section 6800(a) is limited by Labor Code section 6303(a) which excepts places of employment, ". . . the health and safety jurisdiction over which is vested by law in, and actively exercised by, any state or federal agency other than the division." (Emphasis supplied.)

The Board then went on to conclude that the jurisdiction over the health and safety of railway employees is indeed vested in DOT by FRSA. (Id. at 8-9; and see Atchison, Topeka and Santa Fe Railway Company, supra.) With respect to the HMTA, we have determined that DOT chose to restrict its jurisdiction over the handling of hazardous materials to the manner in which they are prepared for shipment, packaged, contained, loaded and unloaded, leaving federal and state OSHA to regulate the manner in which employees are to be protected should an accident or exposure occur. (ante, pp. 15-16.)

As for the requirement that the federal jurisdiction be "actively exercised" the California Supreme Court held that to do so, an agency must "promulgate a comprehensive body of rules directly addressing the health and safety" of the affected workers and it must undertake "systematic enforcement of those safety measures." (United Air Lines, Inc. v. Occupational Safety & Health Appeals Board, supra, at 777.)

We have determined that, while DOT has a thorough set of regulations devoted to the handling and packaging of hazardous cargo, it has no regulations—other than the notification of proper authorities—addressing the protection to be provided employees in the event of accident or exposure. (ante, pp. 10-12.) And we pointed out that the absence of such regulations is due to a deliberate policy choice by DOT to leave the regulation of hazards common to the industry at large to Fed OSHA and to States, like California, with federally qualified plans. (ante, pp. 12-13; 43 FR 10583, et seq.; Atchison, Topeka and Santa Fe Railway Company, supra; Southern Pacific Transportation Co, supra.) Finally, we pointed out that in section 5107(f)(2) of the HMTA, Congress itself acknowledged OSHA’s jurisdiction over the handling of hazardous materials. (ante, pp. 16-17.) There is no indication on this record that Fed OSHA has exercised that grant of jurisdiction.

Under those circumstances, it cannot be said that either DOT or Fed OSHA is actively exercising its jurisdiction to protect Employer’s gate clerks from exposure to air contaminants in the course of carrying out their duties.

We therefore conclude that nothing in California’s Occupational Safety and Health Act limits the power of the Division to require Employer to make respirators available to the gate clerks assigned to its Long Beach Intermodal Terminal.

4. Did Employer violate section 5144(a) by failing to provide respirators for its gate clerks?

Section 5144(a) requires that employees facing potential exposure to harmful air contaminants be provided with respiratory protective equipment.

In carrying out their job duties, gate clerks have a realistic potential for exposure to such contaminants. While their exposure may be brief, it is nonetheless dangerous. Under those circumstances, we agree with the ALJ that Employer is required to make respirators available to them.

5. Is Cal OSHA preempted by the FRSA or the HMTA from exercising its jurisdiction to determine whether section 3241(c) requires the strapping of containers?

We turn now to the other violation which was litigated below: The allegation that Employer violated section 3241(c) by failing to use straps on the outside of containers to eliminate the risk of injury from falling cargo when they are opened for inspection. As the inspector explained, "[a] strapping material . . . would hook onto the closed door and then be placed on the open door. As the door was opening there would be enough slack in the strap itself . . . that the material would either be stopped or it would be at least prevented from falling either on the truck driver or the gate clerk." (Tr. p. 23.)

Section 3241(c) provides:

"Material, wherever stored, shall not create a hazard. It shall be limited in height and shall be piled, stacked, or racked in a manner designed to prevent it from tipping, falling, collapsing, rolling or spreading. Racks, bins, planks, sleepers, bars, strips, blocks, sheets, shall be used where necessary to make the piles stable."

The ALJ found that the words of the regulation do not require the strapping of containers because section 3241(c) deals with the storage of material, not the opening of storage containers. He therefore granted Employer’s appeal.

Employer nonetheless appealed, asserting that, "as a threshold matter" the Division and the Appeals Board lack jurisdiction over the strapping of containers "in light of the total and complete preemption of the subject matter by federal regulation." (Petition for Reconsideration, p. 2.)

We disagree. The Appeals Board and the Division are vested with exclusive original jurisdiction over proceedings to determine whether employers have violated safety orders issued by the Standards Board. It is a long, well-established principle that an administrative agency vested with such original jurisdiction has the power, in the first instance, "to determine . . . whether a given controversy falls within [its] statutory grant of jurisdiction." (United States v. Superior Court (1941) 19 Cal.2d 189, 195, and the cases cited therein.) That principle is actually a corollary of the general requirement that administrative remedies be exhausted. (Id. at 194)

It makes no difference that Employer has raised a constitutional issue. In County of Contra Costa v. State of California (1986) 177 Cal.App.3d 62, 74-75, the Court explained:

"[T]he doctrine of exhaustion of administrative remedy applies to actions raising constitutional issues. (Security-First Nat. Bk. v. County of L.A. (1950) 35 Cal.2d 319, 321; United States v. Superior Court, supra; People v. Coit Ranch, Inc. (1962) 204 Cal.App.2d 52, 57-58; Tushner v. Griesinger (1959) 171 Cal.App.2d 599, 604-608; see also 3 Witkin, Procedure, Actions, 236, p. 267; Reed, Exhaustion of Administrative Remedies in California (1968) 56 Cal.L.Rev. 1061, 1073-74.) It is true that there is an exception when the constitutionality of the agency itself is challenged. A litigant is not required to exhaust his administrative remedies where the challenge is to the constitutionality of the administrative agency. (State of California v. Superior Court (Veta) (1974) 12 Cal.3d 237, 251. But here the Counties are not challenging the constitutionality of the State Board of Control, the Commission on State Mandates, or even the statutory scheme for hearing and determining claims. . . ."

Here, likewise, Employer contests only the Appeals Board’s right to determine the application by the Division of a particular regulation. It is not attacking the constitutionality of the Board, the Division, or the California Occupational Safety and Health Act of 1973. The Division, therefore, had every right to bring the alleged violation of section 3241(c) to the Appeals Board, and the Board had every right to determine whether that regulation applied to the conduct in question.

We agree with the reasoning and interpretation of the safety order by our ALJ, and therefore conclude that the issue of federal preemption does not even arise since the safety order, as interpreted, does not apply to strapping of containers arriving at Employer’s Long Beach Intermodal Terminal.

DECISION AFTER RECONSIDERATION

The decision of the ALJ, dated November 15, 1995, is affirmed.

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