April 8, 1999

Mr. Kevin Belford, Esq.
General Counsel
American Gas Association
1515 Wilson Boulevard
Arlington, Virginia 22209

Dear Mr. Belford:

This letter is in response to several inquiries submitted to the Occupational Safety and Health Administration (OSHA) from pipeline owners and operators: Gordon Murdock of Questar, Greg Janson of Southwest Gas Corporation, and Stephen M. Sablack of Sempra Energy, as to whether OSHA is preempted from enforcing its recently revised Respiratory Protection Standard located at 29 CFR 1910.134 by regulations issued by the Department of Transportation's Office of Pipeline Safety (OPS).

Section 4(b)(1) of the Occupational Safety and Health Act, 29 U.S.C. § 653(b)(1), precludes OSHA from applying its standards to working conditions that are regulated by other federal agencies. In order for a working condition to qualify for the exemption, the other federal agency must have statutory authority to regulate the health and safety of working conditions of employees and must exercise that authority by standards or regulations having the force and effect of law. Section 4(b)(1) does not create an industry-wide exemption. It only exempts specific "working conditions" that are subject to the worker safety or health regulations of other agencies.

OPS has promulgated regulations which address the provision and use of breathing apparatus to protect workers against hazardous air contaminants. 49 CFR 192.605 provides, inter alia, that each operator shall prepare and follow for each pipeline, a manual of written procedures for conducting operations and maintenance activities and for emergency response. Section 192.605(b)(9) provides that the manual must include procedures for "[t]aking adequate precautions in excavated trenches to protect personnel from the hazards of unsafe accumulations of vapor or gas, and making available when needed at the excavation, emergency rescue equipment, including a breathing apparatus and a rescue harness and line." Additionally, OPS regulations provide that each operator shall establish written procedures to minimize the hazard resulting from a gas pipeline emergency (49 CFR 192.615(a)). At a minimum, the procedures must provide for the availability of personnel, equipment, tools, and materials, as needed at the scene of an emergency (49 CFR 192.615(a)(4)). Section 192.615(b)(1) requires each operator to furnish the latest emergency procedure to its supervisors who are responsible for emergency action. Section 192.615(b)(2) requires each operator to train appropriate operating personnel to assure that they are knowledgeable of the emergency procedures and to verify that the training is effective.

In a telephone conference on January 13, between OSHA and Solicitor of Labor staff and Office of Pipeline Safety representatives, OPS indicated that the regulations indeed constitute the agency's intent to regulate the use of respirators in operations, maintenance, and emergencies. OSHA's respirator standard addresses the same working conditions as the OPS regulations listed above. The OSHA standard requires employers whose workplaces contain actual or potential hazardous concentrations of air contaminants to establish a respiratory protection program, which must include the provision of appropriate respirators for the hazard involved and procedures for the proper use of those respirators. The OPS regulations require the provision and use of emergency equipment, including respirators, to protect against unsafe accumulations of vapors and gases in pipeline trenches. The OPS regulations thus require protection against the same hazard -- unsafe concentrations of air contaminants -- addressed by the OSHA standard. OSHA concludes that it is therefore preempted, under § 4(b)(1), from enforcing the Respiratory Protection Standard against employers subject to the OPS regulations, namely, pipeline owners and operators. However, OSHA is not preempted from enforcing the standard as to contractors, or other entities not covered by the requirements of 49 CFR Part 192. Texas Eastern Transmission Corp. and Sinapp Company - Staten Island, Inc., 3 BNA OSHC 1601, 1605 (Nos. 4091 and 4078, 1975). OSHA has conferred with representatives of OPS responsible for enforcing the OPS regulations, and they have informed OSHA that they concur in these conclusions.

Please feel free to distribute this letter to any of your members with an interest in this subject. We will make our field offices aware of this interpretation through distribution of this letter, as well. With respect to your members in any of the 23 States with federally-approved state OSHA plans, we should note that State Plans operate under authority of State rather than Federal law, and the restrictions in section 4(b)(1) do not necessarily apply. OSHA will furnish an information copy of this letter to each State plan State and encourage them to consider a similar policy interpretation, but since coverage provisions may differ somewhat under the laws in individual States, your members in State plan States may wish to contact the State plan agency directly.

Sincerely,

Richard E. Fairfax
Director
Directorate of Compliance Programs

cc:
Mr. Gordon Murdock, Questar
Mr. Stephen M. Sablack, Sempra Energy
Mr. Greg F. Janson, Southwest Gas Corporation
Mr. Terry Boss, Interstate Natural Gas Association of America