UNION PACIFIC RAILROAD COMPANY

OSHRC Docket Nos. 11558; 12810; 13129

Occupational Safety and Health Review Commission

August 1, 1977

[*1]

Before: BARNAKO, Chairman; and CLEARY, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

John J. Marchant, Law Department, Union Pacific Railroad Company, for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision by Review Commission Judge Vernon Riehl is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision held respondent in violation of 29 U.S.C. 654(a)(2) for failure to comply with numerous occupational safety and health standards codified at 29 C.F.R. Part 1910. For the reasons that follow, we affirm.

After these cases were consolicated, the parties stipulated that the physical conditions alleged in the complaints existed on the dates of the inspections and that the proposed penalties were reasonable and appropriate.

Respondent's petition for review repeats the contentions it made before the Judge. Specifically, it [*2] claims that it is exempt from the regulations promulgated by the Occupational Safety and Health Administration (OSHA) because the Federal Railroad Administration (FRA) has exercised the statutory authority contemplated by 29 U.S.C. 653(b)(1) n1 in that it has:

(1) Promulgated certain safety standards, even though they do not cover the instant conditions.

(2) Revised 49 C.F.R. Part 225, pertaining to accident reporting.

(3) Announced that it planned to adopt regulations covering the same subject matter which is covered by OSHA regulations in 29 C.F.R. Part 1910.

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n1 That section, in pertinent part, states:

"Nothing in this chapter shall apply to working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety and health."

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In affirming the citations, Judge Riehl concluded that respondent was not exempt from OSHA regulations by 29 U.S.C. 653(b)(1) because on the dates of the inspections [*3] the FRA had only proposed safety and health regulations and had not exercised its regulatory authority by issuing regulations affecting employee safety or health applicable to the cited conditions.

The Judge properly applied Commission precedent. Neither the implementation of the revised reporting requirements, nor the proposal to adopt widespread safety regulations, nor a combination thereof, constitutes an "exercise [of] statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health" as contemplated by 29 U.S.C. 653(b)(1). Indiana Harbor Belt Railroad Co., 77 OSAHRC 13/A2, 4 BNA OSHC 2006, 1976-77 CCH OSHD para. 21,473 (No. 12420, 1977). n2

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n2 Accord, Baltimore and Ohio Railroad Co. v. OSHRC, 548 F.2d 1052 (D.C. Cir. 1976); Southern Pacific Transportation Co. v. Usery, 539 F.2d 386 (5th Cir. 1976); Southern Railway Co. v. OSHRC, 539 F.2d 355 (4th Cir. 1976), cert. denied, 97 S. Ct. 525 (1976).

[*4]

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Accordingly, the Judge's decision is affirmed.