Is Cal OSHA preempted by the Federal Rail Safety Act (FRSA) or the Hazardous Materials Transportation Act (HMTA) from exercising its jurisdiction to (1) ensure that the employees at Employer’s facility in California are provided with approved respiratory equipment; and (2) to determine whether section 3241(c) requires the strapping of containers?

Respiratory Equipment

Many of the hundreds of thousands of containers and trailers that pass through Employer’s container facility hold hazardous materials. Employer’s gate clerks inspect cargo, including those with hazardous materials, and in doing so, clerks are exposed to spills, leaks, and noxious vapors. Employer does not provide respiratory equipment to the clerks.

Congress passed the FRSA to "promote safety in every area of railroad operations and reduce railroad-related accidents and incidents" 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." Pursuant to those statutory mandates, the Secretary has developed an extensive regulatory scheme. By enacting the FRSA and the HMTA Congress did not intend to oust the States of jurisdiction over the conduct in question which does involve various modes of transportation including rail.

Pursuant to the FRSA, a state regulation would be displaced only where the Secretary has adopted regulations which cover the subject matter. Nowhere in the regulations is respiratory equipment mentioned. A thorough analysis of all the related federal regulations compels the conclusion that the Secretary 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 left to Fed OSHA and the States with qualified plans. California has such a qualified plan.

Under the HMTA there are extensive regulations specifying the manner in which hazardous material is to be prepared for shipment, packaged, contained, loaded, unloaded, and inspected. But there are no regulations dealing with the manner in which employees are to be protected should an accident or exposure occur. The Board infers that the Secretary left to federal and state OSHA the responsibility for regulating the manner in which employees are to be protected should an accident or exposure occur.

The Board found that neither FRSA nor HMTA preempts the Division from exercising its jurisdiction over Employer’s place of employment and citing Employer for the failure to provide the gate clerks with approved respiratory equipment as required by 5144(a). The Board concurred with the ALJ’s determination that the Division established a violated of section 5144(a).

Strapping of Containers

Does Cal OSHA lack jurisdiction over the strapping of containers because of federal preemption? The ALJ found that the words of section 3241(c) [stored material shall not create a hazard] do not require the strapping of containers since the safety order deals with the storage of material, not the opening of storage containers. The Board agreed with the ALJ that the safety order did not apply and therefore concluded that the issue of federal preemption does not even arise.


Southern Pacific Transportation, OSHAB 94-3142