Petition for Writ of Certiorari — Chaparral Steel Co. v. Texas
Supreme Court brief1998
Ask Donna
What actually matters in this document.
Text
supreme Cour, U.S.
FILED
Bw 18 Bz MAY 141998
OFFICE OF THE CLERK
No.
IN THE
Supreme Court of the United States
OCTOBER TERM, 1997
CHAPARRAL STEEL COMPANY,
Petitioner,
Vv.
STATE OF TEXAS,
Respondent.
On Petition for a Writ of Certiorari to the
Tenth Court of Appeals
for the State of Texas
PETITION FOR WRIT OF CERTIORARI
STEVEN R. McCOWN
Counsel of Record
WARREN M. DAVISON
ALLAN G. KING
RICHARD C. RYBICKI
LITTLER MENDELSON P.C.
300 Crescent Court, Suite 600
Dallas, Texas 75201
(214) 922-4500
Date: May 14, 1998 Counsel for Petitioner
WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001
QUESTION PRESENTED
Whether, contrary to this Court’s holding in Gade v.
National Solid Wastes Management Association, the State
of Texas may regulate an issue already covered by federal
occupational safety and health standards, and assess an
additional twenty-million dollar penalty, by applying a
railroad clearance statute that it has never enforced and
never submitted for approval by the Secretary of Labor.
(i)
ii
LIST OF RELATED PARTIES
(SUPREME COURT RULE 29.1)
Chaparral Steel Company discloses the following related
entities as required by Supreme Court Rule 29.1: Chapar-
ral Steel Texas, Inc.; Chaparral Steel Midlothian, L.P.;
Chaparral Steel Trust; Chaparral Steel Holdings, Inc.;
Texas Industries, Inc.
TABLE OF CONTENTS
Page
ETI URES BPR IT TED voces coscnasccnicosserevscesessccccccowseinase i
Re GPE DURBAN BED REI ovcencccesocvecckenosecdccoduecsscces ii
pe tS Be. line |< fy > GRR Remee meen aamtnes vi
a 1
PRIA RR Spree AC NEMOURS wae ECO Ste aN alee 1
fy Barca RO RS ORI Ce SON hn Ia ARRESTS 1
STATUTES AND REGULATIONS INVOLVED ......... 2
Grease Ue tee CASE. 2
ik Mr MN ie 2
B. The OSH Act’s Preemption of Non-Approved
eT NCR ee oS mise nee INI as a ae aR See
ON SURES ok Cr TA RC EE
REASONS FOR GRANTING THE WRIT... 3
I. REVIEW BY THIS COURT WOULD ELIMI-
NATE CONFUSION REGARDING THE MA-
JORITY OPINION ANNOUNCED IN GADE
v. NATIONAL SOLID WASTES MANAGE-
SSE a es 8
II. THE TEXAS TENTH COURT OF APPEALS’
OPINION CONFLICTS WITH THIS COURT’S
MAJORITY ANALYSIS IN GADE ............. 10
A. By Holding That State Laws Are Preempted
Only if They “Actually Conflict” With the
OSH Act, the Texas Court Rejected the
Standard Adopted by the Gade Majority in
Favor of a Standard Preferred by the Gade
IIE cciorcnint eit a ee eee. 10
iv
TABLE OF CONTENTS—Continued
Page
B. The Texas Court Also Rejected the Majority
Holding in Gade by Ruling That Texas’
“Dual Impact” Railroad Clearance Law Is
Not Preempted by the OSH Act ............00........ 12
C. The Texas Court’s Failure To Follow Stand-
ards Set by This Court Will Have a Sub-
stantial Impact on Issues Already Regulated
by Federal Occupational Safety and Health
SI Ras T SEU LAD yak EK SD OTe 13
Ill. THE TEXAS COURT OF APPEALS ALSO
UNLAWFULLY REJECTED ROTH THE
OCCUPATIONAL SAFETY AND HEALTH
“ ADMINISTRATION’S AND THE OCCUPA-
TIONAL SAFETY AND HEALTH REVIEW
COMMISSION’S BINDING INTERPRETA-
TION OF 29 C.F.R. § 1910.145 (c) (8) .200 14
IV. THIS CASE INVOLVES AN IMPORTANT
ISSUE AFFECTING MORE THAN SIX MIL-
LION WORKPLACES REGULATED UNDER
THE OSH ACT. IT WILL HAVE A WIDE-
SPREAD EFFECT ON EMPLOYERS’ IN-
CENTIVE TO COOPERATE WITH, PARTICI-
PATE IN AND REACH SETTLEMENTS
AFTER FEDERAL OSHA INVESTIGA-
BIIEED iki cknsidn beck ncntiecs anos lan epeioiactin eedadalbgatancind 16
CIFOR SEAT ORII EY snincecccvncecondsninerenibetinicaderibneiedotaeselbesam eluates 17
APPENDIX
A. The Supreme Court of Texas, Order Denying
Petition for Review, dated February 13, 1998.... la
Bl. Texas Tenth Court of Appeals, Order Deny-
ing Motion to Publish Opinion and Motion for
Rehearing, dated September 8, 1997 .....0.000000....... 2a
B2. Texas Tenth Court of Appeals, Opinion, dated
IIT Ts, ET, Aciiiihacticntabatcatint lace utente touip ciate hae eee ra 8a
v
TABLE OF CONTENTS—Continued
District Court of Ellis County, Texas (40th Judi-
cial District), Order on Motions for Summary
Judgment, dated November 19, 1996 ...................
Texas Railroad Clearance Act, Tex. Rev. Civ.
stat. Ann. art. CESS-GEGCL o.oo
U.S. Occupational Safety and Health Act, 29
UG, SECCR GOA. OOF nee
U.S. Occupational Safety and Health Adminis-
tration, Department of Labor, Occupational
Safety and Health Standards, 29 C.F.R.
BiB Reeth cleni et mene a RR UGAMP NTE yD oad eR
U.S. Department of Labor, Occupational Safety
and Health Administration, Citation and Notifi-
cation of Penalty, dated March 4, 1992...
U.S. Occupational Safety and Health Review
Commission, Order, dated May 10, 1993 ...........
Page
10a
12a
16a
23a
30a
vi
TABLE OF AUTHORITIES
CASES Page
Associated Industries of Massachusetts v. Snow,
COS FB BEG Sar OD oknsiknbectinesnercacertcrinnineinine 5
Blue Circle Cement, Inc. v. Board of County
Comm ’rs, 917 F. Supp. 1514 (N.D. Okla. 1995).. 9
Chiglo v. City of Preston, 909 F. Supp. 675 (D.
pe IRAE RR RIG ate Rat Np a OKs RENE BN Nir nb AL 9
Color Pigment Mfrs. Ass’n, Inc. v. OSHA, 16
Wee BET COLES TOG nao sek ceceeecesheebibeceictinn 18
Environmental Encapsulating Corp. v. New York
City, 865 F.2d 48 (CA2 1988) ...........................2.0 5
Florida Lime & Avocado Growers, Inc. v. Paul,
SE Chi Re CD racchaneccireeiestenciadinc actin aloes 8
Fragassi v. Neiburger, 269 Ill.App.3d 633, 646
PEFR Be BEB Ces BOD saeickncckceeccictaeerieons 10
Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S.
BE: PRD NEEL Eee ey emRuNn Be MMB AMOT Eat rma a ihe CAMs passim
Gutierrez v. Mobil Oil Corp., 798 F. Supp. 1280
Oe ts ie MIE desc ivciieciorel colaseinkaretas Cntenbealanilammbeaees: 9
Industrial Truck Ass’n, Inc. v. Henry, 909 F. Supp.
1868 (S.D. Cal. 1995), rev’d, 125 F.8d 13805
COIR SIP OD wisicnticks taacintkeotealsosckcsiinaittmmckeseciaamisc: 10
Industrial Truck Ass’n, Inc. v. Henry, 125 F.3d
SE RGA BOG F nxcescovdacdccncs cossacencenteieni. 12, 13
Kerker v. Elbert, 261 Ill.App.8d 924, 684 N.E.2d
GAR CER A, TIGR ct hchccicssinmneaiccenbesdeteietbas cobain 10
Martin v. Occupational Safety and Health Review
Comm'n, 499 U.S. 144 (1991) ............................... 15
Myrick v. Freuhauf Corp., 18 F.8d 1516 (CA11
1994), aff'd sub nom. Freightliner Corp. v.
Bi epr Gale, SAG TEA. TD LED pincer ican 9
Nat'l Helicopter Corp. of America v. City of New
York, 952 F. Supp. 1011 (S.D.N.Y. 1997), modi-
fied on other grounds, 187 F.8d 81 (CA2 1998).. 9
Toy Mfrs. of America, Inc. v. Blumenthal, 806
F. Supp. 3386 (D. Conn. 1992), aff’d, 986 F.2d
GiS (CAD Te wiaccee a 9
United Steelworkers of America v. Auchter, 768
FSG Fe Te Bee bikie 5
vii
TABLE OF AUTHORITIES—Continued
STATUTES & REGULATIONS Page
aS Ft Sa AORN DESMO SOL cee Cn CROCCO 2
NE SMCS Si Ce evenness stats OA rbara 4
N18 TRC TERR ase eS: Sate eee PAR ORD em 4,5
RR 8 EOS OANA eI SL A OTA ED 2
an 3
gE Ae ' HERRRSR DSS SEEN AU AT ON HisAP IGS Ree Een ED ly 4
ac ie 15
We I NE aii ct san ice REF, a See ee 4, 5,11, 16
BO a Ae EE wince scckeradsscsueinnaasccuesiodbeiicuseiie 2,4, 6
Be Rs TE OD saciiccssccriiccilechicncca cgi cute ie Nea 4
Texas Railroad Clearance Act, Tex. Rev. Civ. Stat.
a I I ite c aa a 2,3
Texas Railroad Clearance Act, Tex. Rev. Civ. Stat.
Ann. art. 6559e ............ CRT ELEY PT Le sma Oe ARTI 2,4
Se Rw ieee RD EE sais i tecredveeeceskc ean passim
CONSTITUTIONAL PROVISIONS
Supremacy Clause, U.S. Constitution, Art. VI,
2a MIRREN RSTO SIAM Clee LN ON TSS OV Ng a ear eA PE 15
CONGRESSIONAL MATERIALS
S. 2198, §17(h), reprinted in 116 Cong. Rec.
I cr 5
S. 2799 and H.R. 13373, 91st Cong., 1st Sess.,
§14(b) (1) (1969), reprinted in Legislative
History of the Occupational Safety and Health
Act of 1970 (Committee Print, 1971), at 58,
OTHER MATERIALS
OSHA Facts: Common Sense at Work, published
at http://www.osha.gov/oshinfo 16
IN THE
f Supreme Court of the United States
OCTOBER TERM, 1997
No.
CHAPARRAL STEEL COMPANY,
me Petitioner,
STATE OF TEXAS,
Respondent.
On Petition for a Writ of Certiorari to the
Tenth Court of Appeals
for the State of Texas
PETITION FOR WRIT OF CERTIORARI
PRAYER
Chaparral Steel Company respectfully petitions for a
writ of certiorari to review the judgment of the Tenth
Court of Appeals for the State of Texas in this case.
OPINIONS BELOW
The opinions of the Tenth Court of Appeals for the
State of Texas, Case No. 10-97-013-CV (App. B, infra,
3a-9a), and the District Court of Ellis County, Texas
(40th Judicial District), Case No. 50334 (App. C, infra,
10a-11a), are unreported.
JURISDICTION
The Tenth Court of Appeals for the State of Texas
issued its judgment on July 9, 1997. App. B, infra, 9a.
2
The Supreme Court of Texas issued its order denying re-
view of the judgment on February 13, 1998. App. A,
infra, la. The jurisdiction of this Court is invoked under
28 U.S.C. § 1257.
STATUTES AND REGULATIONS INVOLVED
Section 18(c) of the federal Occupational Safety and
Health Act requires any state wishing to develop and
assume responsibility for the enforcement of occupational
safety and health standards on an issue already covered
by a federal standard to submit a “State plan for the
development of such standards and their enforcement.”
29 U.S.C. § 667(b).
Petitioner Chaparral Steel Corporation was cited by the
federal Occupational Safety and Health Administration for
a condition violating two federal standards: the federal
“general duty” standard set out at 29 U.S.C. § 654(a)
and the “safety instruction signs” standard set out at 29
C.F.R. § 1910.145(c)(3). The State of Texas later cited
Chaparral Steel Coporation for the same condition under
the Texas Railroad Clearance Act, Tex. Rev. Civ. Stat.
Ann. art. 6559b. The Attorney General of the State of
Texas has brought this suit to enforce the state-law cita-
tion and to collect penalties under Tex. Rev. Civ. Stat.
Ann. art. 6559e.*
STATEMENT OF THE CASE
A. Factual Background
On November 9, 1991, an employee was fatally injured
when pinned betwee a boxcar and a retaining wall at peti-
tioner Chaparral Steel Company’s facility in Midlothian,
Texas. This case arises out of independent state and fed-
eral investigations following that incident.
1 The statutes and regulations involved in this case are contained
in the Appendix pursuant to Supreme Court Rules 14.1(f) and
14.1(k). App. D-F, infra, 12a-29a.
3
Conditions surrounding the 1991 injury were first in-
vestigated by the federal Occupational Safety and Health
Administration (“OSHA”). After completing its investi-
gation, OSHA assessed two separate penalties against
Chaparral Steel Company (“Chaparral”) for violation of
federal workplace standards. The first penalty cited Sec-
tion 5(a)(1) of the federal Occupational Safety and
Health Act (the “OSH Act”), 29 U.S.C. § 654(a)(1),
which requires employers to provide a workplace “free
from recognized hazards that are causing or are likely to
cause death or serious physical harm.” The second penalty
cited violation of 29 C.F.R. 1910.145(c)(3), “Safety In-
struction Signs”, and alleged that “safety instruction signs
were not used where there was a need .. . to instruct
employees of hazard of being caught between moving box
cars and the retaining wall.” App. G, infra, 30a-31a.
After issuing the federal citations, OSHA filed an ad-
ministrative complaint with the federal Occupational Safety
and Health Review Commission (“OSHRC”) seeking to
enforce the penalties it had assessed against Chaparral for
violating federal workplace standards. On May 10, 1993,
the OSHRC entered a stinulated order requiring Chaparral
to (i) implement an “absolute work rule” prohibiting em-
ployees from occupying designated areas while rail boxcars
are present, (ii) train employees regarding similar haz-
ards, and (iii) install warning signs alerting employees to
potential hazards. The order also required Chaparral to
pay monetary penalties resulting from the citations. App.
H, infra, 33a-37a.
After OSHA had initiated its investigation of the 1991
incident, the Texas Railroad Commission began its own
independent investigation of facts surrounding the injury.
The state commission determined that the very same con-
dition cited by OSHA—minimal clearance between a re-
taining wall and the rail track—also violated the Texas
Railroad Clearance Act, Tex. Rev. Civ. Stat. Ann. art.
5669b. That law, enacted in 1925, had never before been
enforced by the Railroad Commission or used to regulate
4
workplace safety by it in the State of Texas. The state
nonetheless filed suit on September 23, 1993, seeking to
recover over twenty million dollars in penalties under Tex.
Rev. Civ. Stat. Ann. art. 5669e: $1000 for every day
that Chaparral did not comply with the Texas Raiload
Clearance Act.
B. The OSH Act’s Preemption of Non-Approved State
Law
The federal Occupational Safety and Health Act, 29
U.S.C. § 651, et seqg., provides a comprehensive nation-
wide plan to protect the health and safety of “every work-
ing man and woman” and largely preempts the field of
occupational safety and health. 29 U.S.C. §§ 651(b),
667. The OSH Act delegates to the Occupational Safety
and Health Administration authority to promulgate nation-
wide safety and health standards. 29 U.S.C. § 655(a).
While the OSH Act allows states to enact standards where
“no standard is in effect- it specifically provides that:
Any State which, at any time, desires to assume re-
sponsibility for development and enforcement therein
of occupational safety and health standards relating
to any occupational safety or health issue with respect
to which a Federal standard has been promulgated
under section 655 of this title shall submit a State
plan for the development of such standards and their
enforcement.
29 U.S.C. § 667(b). A proposed state plan cannot win
approval unless it designates an enforcing agency, provides
for the development and enforcement of standards “at least
as effective” as federal standards, assures that the state will
devote adequate funds and personnel to administer and
enforce the plan, and requires reports to OSHA from both
employers and the designated state agency. 29 U.S.C.
§ 667(c).
The OSH Act is therefore unlike many federal laws
allowing supplemental state regulation so long as the state
5
law does not actually conflict with federal standards. In
fact, when it enacted the OSH Act, Congress specifically
rejected proposals that would have preempted only state
regulations “in conflict” with federal law. For example,
the Senate declined to include language allowing states to
adopt any “standard which provides for more stringent
health and safety regulations than do the federal stand-
ards.”* Federal courts interpreting these sections of the
OSH Act, 29 U.S.C. §§$ 651(b) and 667, have regularly
concluded that they preempt state occupational and safety
standards on any issue for which OSHA has promulgated
a standard unless the state has obtained approval for its
plan from the United States Department of Labor.*
This Court recently extended OSH Act preemption to
non-approved state standards “relating to” any occupa-
tional safety or health issue with respect to which a federal
standard has been promulgated. Justice O’Connor ex-
plained that requiring states to follow an “all or nothing”
approach protected Congress’ intent that a single set of
standards apply to any particular workplace safety issue:
The design of the statute persuades us that Congress
intended to subject employers and employees to only
one set of regulations, be it federal or state, and that
the only way a State may regulate an OSHA-regu-
lated occupational safety and health issue is pursuant
to an approved state plan that displaces the federal
standards.
The OSH Act as a whole evidences Congress’ intent
to avoid subjecting workers and employers to dupli-
2S. 2193, § 17(h), reprinted in 116 Cong. Rec. 37687 (1970); see
also S. 2799 and H.R. 13378, 91st Cong., Ist Sess. § 14(b)(1)
(1969), reprinted in Legislative History of the Occupational Safety
and Health Act of 1970 (Committee Print, 1971), at 58, 706.
3 See, e.g., Associated Industries of Massachusetts v. Snow, 898
F.2d 274, 278 (CA1 1990); Environmental Encapsulating Corp. v.
New York City, 855 F.2d 48, 55 (CA2 1988): United Steelworkers
of America v. Auchter, 763 F.2d 728, 736 (CA3 1985).
6
cative regulation; a State may develop an occupa-
tional safety and health program tailored to its own
needs, but only if it is willing completely to displace
the applicable federal regulations.
To allow a State selectively to “supplement” cer-
tain federal regulations with ostensibly nonconflicting
standards would be inconsistent with the federal
scheme of establishing uniform federal standards, on
the one hand, and encouraging States to assume full
responsibility for development and enforcement of
their own OSH programs, on the other.
Gade v. Nat'l Solid Waste Mgmt. Ass'n, 505 U.S. 88, 99,
100, 103 (1992) (O’Connor, J., plurality). Justice Ken-
nedy concurred with the plurality’s analysis but argued
that Congress had expressly preempted all state laws re-
lating to any occupational safety or health issue with
respect to which a federal standard exists. Id., 505 US.
at 111 (Kennedy, J., concurring).
The question presented here concerns whether the State
of Texas, which has not submitted its Railroad Clearance
Act to the United States Department of Labor for ap-
proval under 29 U.S.C. § 667(b), can apply that law to
supplement federal workplace safety standards despite
OSHA’s findings and a final OSHRC order regarding the
1991 incident at Chaparral’s Midlothian, Texas facility.
C. Proceedings Below
The State of Texas initially filed suit in the District
Court for Travis County, Texas, on January 15, 1993.
The case was later transferred to the District Court for
Ellis County, Texas.
On October 10, 1995, the State of Texas filed a Motion
for Partial Summary Judgment seeking judgment against
Chaparral’s affirmative defense that the Texas Railroad
Clearance Act was preempted by federal law. On Novem-
7
ber 3, 1995, Chaparral filed a Cross Motion for Summary
Judgment seeking judgment as a matter of law based, in
part, on OSH Act preemption. On November 19, 1996,
the state trial court issued an order overruling the State
of Texas’ Motion for Partial Summary Judgment and
granting Chaparral’s Motion for Summary Judgment. App.
C, infra, 10a-11a.
The State of Texas appealed the lower court’s judgment
to the Tenth Court of Appeals for the State of Texas. On
July 9, 1997, the state appellate court overruled the sum-
mary judgment, rejected Chaparral’s argument that Texas
law is preempted by the OSH Act, and remanded to the
lower court for further proceedings. App. B, infra, 3a-9a.
The state appellate court’s rejection of Chaparral’s OSH
Act preemption defense rests on two premises: (1) that,
despite OSHA’s express findings and the OSHRC’s final
order, the specific federal safety standard cited by OSHA
did not actually apply to Chaparral, and (2) that, because
no specific OSHA standard applied to Chaparral, and be-
cause no federal safety regulation specifically regulates rail-
way clearances, the Texas Railroad Clearance Act is not
preempted because it does not “actually conflict” with the
OSH Act. App. B, infra, 7a-9a.
With respect to its first premise, the state court acknowl-
edged that OSHA had applied 29 C.F.R. 1910.145(c) (3)
—the federal warning sign standard—as the basis for one
of its citations. But, based on its own reading of the
federal regulation, the court rejected OSHA’s interpreta-
tion and its application of the standard to Chaparral’s
workplace. The court first held that 29 C.F.R. § 1910.145
(c)(3) did not apply to Chaparral because “its aim is to
standardize color and design for safety signs.” The court
then disagreed with OSHA’s conclusion that the regulation
actually applied to Chaparral at all. App. B, infra, 9a.
Because it did not agree with OSHA’s interpretation that
the specific federal standard applied to Chaparral, and
because it believed that the general duty clause itself did
8
not support preemption, the appellate court concluded that
the Texas Railroad Clearance Act was not preempted.
The court also declined to apply Gade v. National Solid
Wastes Management Ass'n, supra, which it distinguished
as dealing “with a very specific area . . . which had al-
ready been regulated by federal law.” Instead, it applied
a general standard developed outside the context of the
OSH Act, holding that “[p]reemption . . . occurs only to
the extent that a state law interferes with or is contrary to
a federal law, and even then the state statute is void only
to the extent that it conflicts with federal law.” App. B,
infra, 8a, citing Florida Lime & Avocado Growers, Inc. v.
Paul, 373 U.S. 132, 142-144 (1963). On this basis, and
without discussing Gade or its ruling that the OSH Act
broadly preempts all state statutes “relating to” issues
regulated by federal standards, the court held that the
Texas clearance law was not preempted because it did not
“actually conflict” with OSHA regulations.
The Texas Court of Appeals denied Chaparral’s Motion
for Reconsideration on September 3, 1997. App. B, infra,
2a. Chaparral then filed a Petition for Review by the Su-
preme Court of Texas, which was denied on February 13,
1998. App. A, infra, 1a.
REASONS FOR GRANTING THE WRIT
I. REVIEW BY THIS COURT WOULD ELIMINATE
CONFUSION REGARDING THE MAJORITY OPIN-
ION ANNOUNCED IN GADE v. NATIONAL SOLID
WASTES MANAGEMENT ASSOCIATION.
Over the past five years, Gade v. Nat'l Solid Wastes
Mgmt. Ass'n, supra, has become a significant Supreme
Court precedent often cited in federal courts’ preemption
analysis. Still the seminal authority on OSH Act preemp-
tion, the opinion has been applied to gauge state-law pre-
emption under diverse federal statutes such as the Federal
Aviation Act, the Federal Hazardous Substances Act, and
ARO
9
the Clean Air Act.* But, despite the proliferation of courts
relying on Gade for guidance, other courts continue to
focus on the fact that Gade is, in part, a plurality opinion.
For example, in Myrick v. Freuhauf Corp., 13 F.3d 1516,
1523 (CA11 1994), aff'd sub nom. Freightliner Corp. v.
Myrick, 514 U.S. 280 (1995), the Eleventh Circuit ac-
knowledged that “the main thrust of the Gade decision was
that state laws with purposes different from a federal law
may still be pre-empted.” The court noted, however, that
the particular “implied preemption theory” followed by
Justice O’Connor and three other justices was not adopted
by Justice Kennedy, who applied an “express preemption”
analysis. Id. The distinction between pluarity and ma-
jority portions of Gade has led to substantial confusion,
especially among state courts.
While courts such as the Eleventh Circuit can differen-
tiate between the plurality and majority portions of Gade,
other courts—such as the Texas Court of Appeals—obvi-
ously can not. In fact, as shown by the opinion below,
state courts have been unwilling or unable to apply the
preemption analysis adopted by five justices in Gade.
Their confusion arises from the fact that one issue in the
entire opinion was determined by a plurality: whether the
OSH Act’s prohibition against supplemental state-law regu-
4 See, e.g., Nat'l Helicopter Corp. of America v. City of New York,
952 F. Supp. 1011, 1022-23 (S.D.N.Y. 1997), modified on other
grounds, 137 F.3d 81 (CA2 1998) (effect of city ordinance on Fed-
eral Aviation Act, Airport Noise and Capacity Act, Noise Control
Act, and Airport and Airway Improvement Act); Blue Circle
Cement, Inc. v. Board of County Comm’rs, 917 F. Supp. 1514, 1515
(N.D. Okla. 1995) (preemption of state law by federal Resource
Conservation and Recovery Act); Chiglo v. City of Preston, 909
F. Supp. 675, 677 (D. Minn. 1995) (effect of state law on federal
Cigarette Labeling and Advertising Act); Toy Mfrs. of America,
Inc. v. Blumenthal, 806 F. Supp. 336, aff’d, 986 F.2d 615 (CA2 1992)
(preemption of Connecticut Child Protection Act by Federal Haz-
ardous Substances Act) ; Gutierrez v. Mobil Oil Corp., 798 F. Supp.
1280, 1281 (W.D. Tex. 1992) (preemption by federal Clean Air
Act).
10
lation operates via “implied” or “express” preemption.
This issue has absolutely no effect on the scope of OSH
Act preemption, which was agreed upon by a five-justice
majority. It nonetheless has led to unnecessary confusion
over the Court’s true holding in Gade and provided a con-
venient avenue for state courts to avoid Gade altogether.
Federal courts will have few opportunities to correct
state courts’ misapplication of Gade. States usually will
bring enforcement actions in their own courts; judicial
review of these enforcement actions, including the review
of any federal preemption defense, will take place almost
exclusively within state appellate systems. This case pre-
sents an opportunity for the Court to clarify the majority’s
position in Gade and to eliminate confusion regarding, or
failure to respect, its holding.
II. THE TEXAS TENTH COURT OF APPEALS’ OPIN-
ION CONFLICTS WITH THIS COURT'S MAJORITY
ANALYSIS IN GADE.
A. By Holding That State Laws Are Preempted Only
if They “Actually Conflict” With the OSH Act, the
Texas Court Rejected the Standard Adopted by the
Gade Majority in Favor of a Standard Preferred
by the Gade Dissent.
The Texas Court of Appeals refused to apply this
Court’s controlling opinion in Gade v. Nat'l Solid Wastes
Memt. Ass’n, supra, which it qualified as “a five-to-four
5 See, e.g., Kerker v. Elbert, 261 Ill.App.3d 924, 930, 634 N.E.2d
482, 486 (Ill.App. 1994) (citing Gade’s status as a five-to-four deci-
sion to apply a “presumption against preemption . . . which four
members of the United States Supreme Court deemed sufficient to
defeat preemption in Gade”) ; Fragassi v. Neiburger, 269 Ill.App.3d
633, 636-37, 646 N.E.2d 315, 317 (Ill.App. 1995) (concluding that
the OSH Act preempts state laws that “conflict” with, rather than
“relate to”, a federal standard). One federal court even went so
far as to hold that the entire Gade opinion was “nothing more than
dicta.” Industrial Truck Ass’n, Inc. v. Henry, 909 F. Supp. 1368,
1376 (S.D. Cal. 1995), rev’d, 125 F.8d 1305 (CA9 1997).
en nee
1]
decision with one of the majority justices filing a separate
[concurring] opinion.” App. B, infa, 7a-8a. Observing
that Gade involved an “extensive, thoroughly developed”
state plan imposing “an additional set of standards” and
resulting in an “overlapping of authority in the specific
area,” the court concluded that Gade did not apply to the
Railroad Clearance Act because there is no “parallel fed-
eral regulation” governing railroad clearances. The court
instead followed a completely different line of authority
; holding that state law is preempted only to the extent that
it “actually conflicts” with federal law. App. B, infra, 8a.
By refusing to apply the standard articulated in Gade,
| the Texas court actually adopted an analysis favored by
: Justice Souter and the Gade dissent. The dissenting jus-
tices reasoned that “[a]s long as compliance with federally
1 promulgated standards does not render obedience to [state]
t regulations impossible, the enforcement of the state law
s is not prohibited by the Supremacy Clause.” Gade, supra,
505 U.S. at 121-22 (Souter, J., dissent).
: Had the Texas court properly applied Gade it would
have recognized that the majority did not require an
“actual conflict” between state regulation and standards 5
adopted under the OSH Act. In fact, Justice Souter opened
his dissent by recognizing that the majority had rejected
the “actual conflict” standard:
The Court holds today that § 18 of the Occupational
é Safety and Health Act of 1970, 29 U.S.C. § 667, pre-
j empts state regulation of any occupational safety or
health issue as to which there is a federal standard,
whether or not the state regulation conflicts with the
federal standard i1: the sense that enforcement of one
would preclude application of the other.
Gade, supra, 505 U.S. at 114-15 (Souter, J., dissent)
(emphasis added). This language accurately reflects the
majority position explained by Justice O’Connor:
[W]e conclude that [the OSH Act’s] preservation of
state authority in the absence of a federal standard
ne oe
12
presupposes a background pre-emption of all state
occupational safety and health standards whenever a
federal standard governing the same issue is in effect.
Gade, supra, 505 U.S. at 100; accord Industrial Truck
Ass'n, Inc. v. Henry, 125 F.3d 1305, 1310 (CA9 1997)
(“[{the Gade] opinion, by its very nature, establishes that
the preemption worked by federal OSHA standards goes
beyond conflict preemption.”) Accordingly, the Texas
Court of Appeals’ application of an “actual conflict” stand-
ard conflicts directly with this Court’s majority opinion in
Gade.
B. The Texas Court Also Rejected This Court’s Major-
ity Holding in Gade by Ruling That Texas’ “Dual
Impact” Railroad Clearance Law Is Not Preempted
by the OSH Act.
Though not clearly stated in its opinion, the Texas
court also suggested that OSH Act preemption could not
apply because the Texas Railroad Clearance Act is a
general state statute with only an incidental effect on
federal workplace regulations. According to the court, “if
Chaparral had complied with the Act, the hazardous con-
dition would not have existed to trigger” the OSHA cita-
tions. App. B. infra, 8a. This analysis also conflicts with
the Court’s opinion in Gade, which explains that state
laws need not specifically address workplace safety to in-
fringe on the comprehensive scheme adopted by Congress.
After rejecting the “actual conflict” standard favored by
the dissent, the Gade majority explained that OSH Act
preemption extends to any state standard relating to an
occupational safety or health issue with respect to which
a federal standard has been promulgated. Gade, supra,
505 U.S. at 104-05, 111. The Court explained that in
“assessing the impact of a state law on the federal scheme,
we have refused to rely solely on the [state] legislature’s
professed purpose and have looked as well to the effects
of the law.” Id. at 105. It concluded:
13
That such a law may also have a nonoccupational
impact does not render it any less of an occupational
standard for purposes of pre-emption analysis. If the
State wishes to enact a dual impact law that regulates
an occupational safety or health issue for which a
federal standard is in effect, [the OSH Act] requires
that the State submit a plan for the approval of the
Secretary.
Id., 505 U.S. at 107-08: accord Industrial Truck Ass'n,
Inc. v. Henry, supra, 125 F.3d at 1310 (“All state regu-
lations relating to the “issue” of a federal standard are
preempted even if they do not conflict with the federal
scheme.”). Accordingly, the Texas court’s implicit hold-
ing—that the Railroad Clearance Act is not preempted
merely because it is a general public safety statute—con-
flicts with this Court’s majority opinion in Gade.
C. The Texas Court’s Failure To Follow Standards Set
by This Court Will Have a Substantial Impact on
Issues Already Regulated by Federal Occupational
Safety and Health Standards.
OSHA determined that the hazard it found at Chapar-
ral’s workplace could be avoided by implementing an
appropriate work rule, providing training, and placing
adequate signage in the dangerous area. In contrast, in
addition to imposing up to twenty million dollars in addi-
tional penalties, the State of Texas would require Chapar-
ral to move or rebuild its long-standing structures to en-
sure compliance with the Texas Railroad Clearance Act.
The Railroad Commission has no alternative but to apply
these blunt and wasteful measures because it does not
possess the tools, authority or background necessary to
fashion an appropriate workplace remedy. OSHA, on the
other hand, is charged with assessing both the efficacy and
the economic feasibility of its standards; it possesses both
the expertise and the authority to implement appropriate
remedies to achieve its goal of workplace safety. See, e.g.,
Color Pigment Mfrs. Ass’n, Inc. v. OSHA, 16 F.3d 1157,
14
1161 (CA11 1994). The State of Texas’ heavy-handed
attempt to apply a law drafted for other purposes—one
that it has not enforced in over seventy years—is an ob-
vious attempt to apply precisely the type of supplemental
state regulation rejected by Congress and this Court alike.
Application of the Texas Railroad Clearance Act to Chap-
arral’s workplace will have a substantial impact on issues
already regulated by federal occupational health and safety
standards and should, under a correct legal analysis, be
preempted.
Ill. THE TEXAS COURT OF APPEALS ALSO UNLAW-
FULLY REJECTED BOTH THE OCCUPATIONAL
SAFETY AND HEALTH ADMINISTRATION’S AND
THE OCCUPATIONAL SAFETY AND HEALTH RE-
VIEW COMMISSION’S BINDING INTERPRETA-
TION OF 29 C.F.R. § 1910.145(c) (3).
OSHA’s documentation is clear: on March 4, 1992, it
cited Chaparral for a “serious” violation of 29 C.F.R.
§ 1910.145(c)(3) and assessed a $5,000 penalty for failure
“to instruct employees of hazard of being caught between
moving box cars and the retaining wall.” See OSHA Cita-
tion, App. G, infra, 30a-3la. That citation, and the stand-
ard set by 29 C.F.R. §$ 1910.145(c)(3), were then incor-
porated in the Occupational Safety and Health Review
Commission’s order approving the citation, penalty and
corrective action. App. H, infra, 33a-37a.
In its opinion, the Texas appellate court refused to
accept OSHA’s determination that 29 C.F.R. § 1910.145
(c)(3) applied to conditions at Chaparral’s facility.
Though acknowledging that OSHA had specified the regu-
lation in its citation, the state court unilaterally decided
that the standard did not apply because—according to the
court—-its “aim” is to “standardize color and design for
safety signs.” The court also drew its own conclusion that
the “scope” of the regulation did not cover hazardous
situations at Chaparral’s workplace. The state court over-
a ee ee
15
ruled both OSHA and the OSHRC and held that 29
C.F.R. § 1910.145(c)(3) did not apply to Chaparral.
App. B, infra, 9a.
The Texas Court of Appeals had no authority to over-
turn OSHA’s conclusion that 29 C.F.R. § 1910.145(c)(3)
regulated the condition later cited by the Texas Railroad
Commission. OSHA is the federal agency that promul-
gated 29 C.F.R. § 1910.145(c)(3) and, according to this
Court, the entity charged by Congress with interpreting
both the OSH Act and OSHA’s own regulations. Unless
clearly unreasonable, its interpretations of the Act and of
OSHA regulations are conclusive. Martin v. Occupational
Safety and Health Review Comm'n, 499 U.S. 144 (1991).
Moreover, once OSHA’s interpretation was approved by
the federal Occuational Safety and Health Review Com-
mission and entered as an OSHRC order, the Texas Court
of Appeals had absolutely no jurisdiction to set the order
aside or to reverse its findings. Review of OSHRC-orders
is limited exclusively to the federal Courts of Appeals
and, ultimately, to this Court. /d. at 148; 29 U.S.C.
§ 660(a). Accordingly, the Texas court’s rejection of
OSHA and OSHRC findings violates both the OSH Act
and the federal Supremacy Clause: U.S. Constitution, Art.
Vite a.
The Texas Court of Appeals unlawfully set aside a
conclusive determination by OSHA and the OSHRC that
any hazard created by inadequate clearance between
® The plain language of 29 C.F.R. § 1910.145(c)(3) also suggests
that the Texas court’s interpretation was incorrect as well as in-
appropriate. The state court concluded that the regulation was in-
tended merely “to standardize color and design for safety signs.”
But the language of this provision contains a clear standard:
“Safety instructions shall be used where there is a need for general
instructions and suggestions relative to safety measures.” App. F,
infra, 24a (emphasis added). Thus, even if the Texas court had
jurisdiction to reverse findings by OSHA and the OSHRC, it would
still be bound by OSHA’s reasonable interpretation of 29 C.F.R.
§ 1910.145(c) (3).
ee
16
Chaparral’s retaining wall and its rail tracks was regulated
by 29 C.F.R. § 1910.145(c)(3). For this reason, and
for the reasons discussed in Section II, supra, the Texas
Railroad Clearance Act “relates to” an issue regulated by
a specific federal occupational standard and is preempted
by the OSH Act, 29 U.S.C. § 667.
IV. THIS CASE INVOLVES AN IMPORTANT ISSUE
AFFECTING MORE THAN SIX MILLION WORK-
PLACES REGULATED UNDER THE OSH ACT. IT
WILL HAVE A WIDESPREAD EFFECT ON EM-
PLOYERS’ INCENTIVE TO COOPERATE WITH,
PARTICIPATE IN AND REACH SETTLEMENTS
AFTER FEDERAL OSHA INVESTIGATIONS.
This case is not unique. In 1997, the Federal Occupa-
tional Safety and Health Administration monitored more
than one hundred million workers at over six million .
workplaces throughout the United States.’ During the
1997 fiscal year, OSHA conducted over thirty-four thou-
sand workplace inspections, cited over eighty-three thou-
sand violations, and assessed almost ninety million dollars
in penalties. Over thirty-six hundred inspections took
place in Texas alone. Id.
Allowing the State of Texas to regulate workplace
issues already subjected to OSHA standards and to assess
a twenty-million dollar penalty—nearly one quarter of |
all penalties assessed by OSHA in 1997—would utterly '
destroy the balance struck by Congress when it enacted
the OSH Act in 1970. Worse, allowing the State of
Texas to collect a twenty-million-dollar windfall under a
statute it had not enforced since 1925 would provide a
_ powerful incentive for Texas and any other state to comb
its statutes for any law, however stale, for use after any
OSHA citation. Finally, due to the enormous size of the
7 See OSHA Facts: Common Sense at Work, published at http://
www.osha.gov/oshinfo.
17
penalty and Texas’ refusal to recognize OSH Act pre-
emption, allowing the State of Texas to regulate issues
already subjected to OSHA standards will completely
change employers’ incentive to cooperate with, participate
in and reach settlements after federal OSHA investiga-
tions. If federal courts fail to intercede in this—an ex-
treme intrusion upon the OSH Act balance—employers
will have no assurance that states cannot simply sidestep
“Congress’ intent to avoid subjecting workers and em-
ployers to duplicative regulation.” Gade v. Nat'l Solid
Wastes Mgmt. Ass’n, supra, 505 U.S. 88, 98 (1992).
CONCLUSION
For all the reasons set forth above, petitioner Chaparral
Steel Company respectfully requests that its Petition for
Writ of Certiorari be granted.
Respectfully submitted,
STEVEN R. McCown
Counsel of Record
WARREN M. DAVISON
ALLAN G. KING
RICHARD C. RYBICKI
LITTLER MENDELSON P.C.
300 Crescent Court, Suite 600
Dallas, Texas 75201
(214) 922-4500
Date: May 14, 1998 Counsel for Petitioner
APPENDICES
la
APPENDIX A
[SEAL]
THE SUPREME COURT OF TEXAS
Post Office Box 12248
Austin, Texas 78711
(512) 463-1312
February 13, 1998
Ms. Julie Staples Brunett
Littler Mendelson
300 Crescent Court, Suite 600
Dallas, TX 75201
Ms. Jeffee L. Martinez-Vargas
Office of the Attorney General of Texas
Dan Morales, A. G.
P. O. Box 12548
Austin, TX 78711
RE: Case Number 97-0964
CHAPARRAL STEEL COMPANY
Vv.
STATE OF TEXAS
Dear Counsel:
Today, the Supreme Court of Texas denied the petition
for review in the above styled case.
Sincerely,
JOHN T. ADAMs,
Clerk
by: /s/ Michael H. Kopp
MICHAEL H. Kopp,
Deputy
cc: Ms. Imogene Allen, Clerk
Mr. Billie Fuller
2a
APPENDIX B
TENTH COURT OF APPEALS
P. O. Box 1606
Waco, Texas 76703-1606
Phone (254) 757-5200
September 3, 1997
Douglas B. Fraser
Assistant Attorney General
P. O. Box 12548
Austin, TX 78711-2548
Steven R. McCown
Littler Mendelson
300 Crescent Court, Suite 600
Dallas, TX 75201
RE: Court of Appeals Number: 10-97-00013-CV
Trial Court Case Number: 50334
THE STATE OF TEXAS
a
CHAPARRAL STEEL COMPANY
Dear Counsel:
Appellant(s) motion to publish opinion was denied
today.
Chaparral Steel Company’s motion for rehearing was
denied today.
Sincerely,
IMOGENE ALLEN,
Clerk
By: /s/ Lillian Kissinger
LILLIAN KISSINGER,
Deputy
3a
[SEAL]
IN THE TENTH COURT OF APPEALS
No. 10-97-013-CV
THE STATE OF TEXAS,
Appellant,
v.
CHAPARRAL STEEL COMPANY,
Appellee.
From the 40th District Court
Ellis County, Texas
Tria! Court # 50334
OPINION
We must decide whether the Railroad Clearance Act
(the Act) applies to tracks owned by a non-railroad com-
pany, and if so, whether the applicable provisions of the
Act have been preempted by the Federal Occupational
Safety and Health Act. Because we find that the Act
applies and has not been preempted, we will reverse the
summary judgment and remand the cause for a determina-
tion of the amount of penalties due to the State.
FACTS
The Attorney General, at the request of the Texas Rail-
road Commission (the State), sued Chaparral Steel Com-
4a
pany (Chaparral) for civil penalties after a company em-
ployee was crushed to death between a train and a retain-
ing wall at the company’s plant site. The State charged
violation of the Texas Railroad Clearance Act (the Act).
Tex. Rev. Civ. STAT. ANN, art. 6559a (Vernon 1925).
Chaparral denied that the Act applied, because it is a pri-
vate corporation engaged in manufacturing and recycling
steel. All materials going in and out of the steel plant
are moved by rail, including raw materials, scrap, and
finished products. Chaparral owns and maintains its own
private system of railroad tracks, switches, spurs, and rail
cars (all on its plant site) to conduct its steel business.
After the fatal accident, the Occupational Safety and
Health Administration (OSHA) cited Chaparral for a
safety hazard for maintaining a dangerous situation created
by having inadequate clearance around the rail tracks. To
settle this citation, Chaparral paid a $5,000 penalty and
agreed to: (1) implement an “absolute work rule” pro-
hibiting employees from working in that area when box-
Cars were present; (2) conduct safety training concerning
the hazards; and (3) install warning signs identifying the
danger and telling employees to avoid the area when the
track had cars on it. Because of this action, Chaparral
claims federal law has preempted the State in regulating
this particular safety hazard and therefore the Act does
not apply.
Both the State and Chaparral moved for summary judg-
ment. Chaparral’s motion was based on two separate
grounds, and the trial court granted it without specifying
on which ground (or both) it was granted. The State thus
attacks both grounds on appeal. We will consider them in
the order of the State’s contentions, first that the Texas
Railroad Clearance Act of 1925 applies even though
Chaparral is not a “railroad,” and second that the federal
government, via OSHA regulations, has not preempted
state authority in this area. The record on appeal is com-
plete because findings of fact and conclusions of law have
5a
no place in a summary judgment proceeding. Linwood v.
NCNB, 885 S.W.2d 102, 103 (Tex. 1994).
STATUTE
The Act was passed in 1925. In summary, section 1
requires 22 feet of vertical clearance from the top of the
rails; section 2 requires 842 feet of clearance from the
center of the rail line; section 3 applies these clearances
to projections as well as structures, with section 3a “grand-
fathering” certain existing or under-construction noncon-
forming structures; section 4 authorizes penalties; section
5 allows the Railroad Commission to grant deviation per-
mits to certain cases; and section 6 contains procedural
enactment details.
The plain and common meaning of the words as used
is the standard with which this Court must review statu-
tory language. Moreno v. Sterling Drug, Inc., 787 S.W.2d
348, 352 (Tex. 1990). Furthermore, statutory construc-
tion should evaluate the entire document rather than focus
on separate sections. Durish v. Channelview Bank, 908
S.W.2d 273, 275 (Tex. App.—Austin 1991, writ denied).
When a court is interpreting the language in a statute,
the words and terms the legislature used must be consid-
ered in their plain and common meanings. Monsanto Co.
v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939
(Tex. 1993).
Chaparral’s particular challenge to coverage focuses on
comparing the wording found in Sections 1 and 2 regard-
ing who is doing the building. Section 1 refers to a long
list of constructed items “built over the tracks of a railway,
or over the tracks of railroads, by the State, or by a
county, municipality, a railroad company or other corpo-
ration, firm, partnership, or natural person. . . .” TEX.
Rev. Civ. STaT. ANN. art. 6559a (Vernon 1925) (em-
phasis added). Chaparral does not contest that section 1
of the Raiload Clearance Act applies to it; rather it argues
that because the language in section 2 does not follow the
6a
identical language in section 1, the Legislature must have
intended that a different group of entities be covered.
Section 2 reads:
All loading platforms and all houses and struc-
tures, and all fences, and all lumber, wood and other
materials hereafter built, placed or stored along the
railroads of this State, either on or near the right of
way of the main lines, or on or near any spur, switch
or siding of any such railroad shall be so built, con-
structed, or placed that there shall be not less than
eight and one-half (842) feet space from the center
of such main line, spur, switch, or siding to the near-
est edge of the platform, or to the wall of the build-
ing, or to the lumber, wood, or other material.
Id., art. 6559b (Vernon 1925) (emphasis added). Be-
cause the retaining wall is the type of structure covered
under section 2 of the statute, Chaparral argues that this
is the controlling section, and that for the Act to apply
at all, the company would have to be a “railroad of this
state” as the phrase is used in section 2.
It then argues that it is not “a railroad of this state”
because that phrase in this context means a common car-
rier. We disagree. We find no authority for such a narrow
definition of “railroad.” Early cases decided before the
enactment of the Railroad Clearance Act held precisely
the opposite. E.g., Kirby Lumber Co. Receivers v. Owens,
120 S.W. 936 (Tex. Civ. App. 1909) and Consolidated
Kansas City Smelting & Ref. Co. v. Schulte, 176 S.W. 94
(Tex. Civ. App.—El Paso 1915, writ ref'd). We agree
with the State that the plain meaning of this phrase refers
to the physical location of the rails, i.e., they are in Texas.
“Railroad of this state” refers to physical facilities, not to
ownership. Section 1 plainly includes Chaparral as an
entity which must provide proper clearances for tracks
located within the State of Texas, with section 1 describ-
ing the types of obstructions in vertical relation to the
Ta
track and section 2 describing them in horizontal relation
to the track.
We believe the plain meaning of the statute is that all
railroad tracks in the State must be kept free of obstruc-
tions. The legislature in 1925 decided that the standard
open area around the tracks would be 8% feet horizon-
tally from the center of the track and 22 feet vertically
from the top of the rails. The plain meaning allows for
no other interpretation. The State’s first point of error is
sustained.
FEDERAL PREEMPTION
The State’s second point of error attacks the defense
that the federal government has preempted regulations in
this area by the Occupational Safety and Health Act. 29
U.S.C.A. § 651 (1970). The Supremacy Clause of the
United States Constitution, U.S. Const. art. VI, cl. 2, es-
tablishes the principle that when state and federal law con-
flict, federal law will prevail unless the regulated area is
clearly within a state’s reserved power. Felder v. Casey,
487 U.S. 131, 138, 108 S. Ct. 2302, 2307, 101 L.Ed. 2d
123, 130 (1988). A court interpreting a federal statute
pertaining to an area of state authority should assume that
the historic police powers of the States are not superseded
by the federal act unless that was the clear and manifest
purpose of Congress. Rice v. Santa Fe Elevator Corp.,
331 U.S. 218, 230, 67 S. Ct. 1146, 1152, 91 L.Ed. 1447,
1452 (1947). Chaparral claims that the citation it re-
ceived from OSHA inspectors for a retaining wall having
been built too close to its tracks shows that Congress has
preempted this State regulation. This citation, however,
was issued under the “general duty to maintain a safe
workplace” provision of the OSHA act, and there is no
other federal provision cited which governs clearances
around railroad tracks.
Chaparral relies on a recent decision by the United
States Supreme Court, Gade v. National Solid Waste
Memt. Ass’n., 505 U.S. 88, 112 S.Ct. 1274, 120 L.Ed.2d
8a
73 (1992), as authority. for the proposition that federal
law should be held to have preempted the Texas Act.
Gade is a five-to-four decision with one of the majority
justices filing a separate opinion concurring in part of
the opinion. It recognizes that preemption may be either
explicitly or implicitly contained in a statute’s structure.
Id., 505 U.S. at 98, 112 S.Ct. at 1283. This case dealt
with a very specific area—the training, testing, and licens-
ing of hazardous waste disposal employees—which had
already been regulated by federal law. Furthermore, the
state plan was extensive, thoroughly developed, and sub-
jected employers and employees to an additional set of
standards. This overlapping of authority in the specific
area is very different than the issue now before this court
with the Texas Act. There is no parallel federal regulation
specifying railroad clearances. The OSHA “general duty”
clause is just that: a very broad, nonspecific statement that
employers in general have an obligation to provide a safe
environment for their employees. It has been specifically
recognized that the general duty clause does not conflict
with state standards. Puffer’s Hardware, Inc. v. Donavan,
742 F.2d 12, 16 (1st Cir. 1984). Indeed, it would not
make sense for the general duty clause to supersede all
specific standards enacted by state authorities to encourage
the kind of workplace that OSHA regulations were at-
tempting to ensure.
Preemption, furthermore, occurs only to the extent that
a state law interferes with or is contrary to a federal law,
and even then the state statute is void only to the extent
that it actually conflicts with the federal law. See Florida
Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132,
142-144, 83 S.Ct. 1210, 1217-19, 10 L.Ed.2d 248, 254-
55 (1963). Applying this principle to Chaparral, if Chap-
arral had complied with the Act, the hazardous condition
would not have existed to trigger a citation for violating
the general duty an-employer has to maintain a safe work-
ing environment.
ES OD ED LTE
9a
Chaparral also argues that Section 1910.145(c)(3),
C.F.R., regulates the hazardous track situation to the ex-
clusion of the Texas Act because that section was also
referred to in the citation. Entitled “specifications for acci-
dent prevention signs and tags,” its aim is to standardize
color and design for safety signs. In addition, the next to
last sentence of subsection (a) Scope reads:
These specifications are intended to cover all safety
signs except those designed for streets, highways, rail-
roads, and marine regulations.
We hold that neither this section concerning signs for haz-
ardous situations nor the general duty clause of the OSHA
act preempts the Texas Act,.- The State’s second point of
error, that the trial court erred in granting summary judg-
ment on the basis that the clearance law is preempted by
the OSHA act, is sustained.
At oral argument, the parties agreed that in the event
of a reversal the cause should be remanded for a determi-
nation of the amount of penalties to which the State may
be entitied under the Act. Accordingly, we remand the
cause to the trial court for further proceedings consistent
with this opinion.
BILL VANCE
Justice
Before Chief Justice Davis,
Justice Cummings, and
Justice Vance
Reversed and remanded
Opinion delivered and filed July 9, 1997
Do not publish
10a
APPENDIX C
[Filed Nov. 19, 1996]
IN THE DISTRICT COURT
OF ELLIS COUNTY, TEXAS
40TH JUDICIAL DISTRICT
Cause No. 50,334
STATE OF TEXAS
Vs.
CHAPARRAL STEEL COMPANY
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
On December 12, 1995, the Court heard the Motions
for Summary Judgment filed in this cause by Plaintiff,
STATE OF TEXAS, and the Motion for Summary Judgment
of Defendant, CHAPARRAL STEEL COMPANY.
All parties appeared by and through their respective
counsel.
The Court, after examining the pleadings and summary
judgment evidence, and hearing the arguments of counsel,
determines that the defendant is entitled to summary judg-
ment and plaintiff is not entitled to summary judgment.
The Court overrules the Plaintiff's Motion for Summary
Judgment.
The Court grants the Defendant’s Motion for Summary
Judgment.
The Plaintiff's Motion for Summary Judgment and all
relief requested is hereby DENIED.
lia
The Defendant’s Motion for Summary Judgment is
GRANTED.
SIGNED this 19th day of November, 1996.
[Illegible]
Presiding Judge
12a
APPENDIX D
GENERAL LAWS
OF
z THE STATE OF TEXAS
PASSED BY
THIRTY-NINTH LEGISLATURE
AT ITS
REGULAR SESSION
WHICH
CONVENED JANUARY 13, 1925, AND
ADJOURNED MARCH 19, 1925
[SEAL]
MRS. EMMA GRIGSBY MEHARG,
Secretary of State
ooo
l3a
Art. 6559. May enforce contracts
All such cities are hereby given the right and power to
compel the construction and completion of such viaducts
as railway companies have by contract agreed with any
such city to construct and complete or which any railway
company or companies may hereafter agree to construct
and complete, by mandamus proceedings in the district
court of the county where such viaduct or viaducts are to
be completed or through any other lawful means. [Id.]
[Art.6559a. Height of bridges or viaducts]
All bridges, viaducts, overheadways, foot bridges, wires
or other structures hereafter built over the tracks of a rail-
way, or over the tracks of railroads, by the State, or by a
county, municipality, a railroad company or other corpora-
tion, firm, partnership, or natural person, shall be placed
not less than twenty-two (22) feet in the clear from the
top of the rails of such track or tracks to such structure
or wire, or to the bottom of the lowest sill, girder or cross-
beam, the lowest downward projection on the bridge, via-
duct, overheadway, or foot bridge or other structure. [In-
serted by compiler from Acts 1925, 39th Leg., ch. 11,
p. 32, § 1.]
[Art. 6559b. Structures near tracks]
All loading platforms and all houses and structures, and
all fences, and all lumber, wood and other materials here-
after built, placed or stored along the railroads of this
State, either on or near the right of way of the main lines,
Or On oF near any spur, switch or siding of any such rail-
road, shall be so built, constructed, or placed that there
shall be not less than eight and one-half (814) feet space
from the center of such main line, spur, switch or siding
to the nearest edge of the platform, or to the wall of the
building, or to the lumber, wood, or other material. [In-
serted by compiler from Acts 1925, 39th Leg., ch. 11, p.
32, § 2.] ;
l4a
[Art. 6559c. Roof projections over tracks]
All roof projections hereafter constructed from any load-
ing platform along any railroad main track, or spur,
switch, or siding track shall be not less than twenty-two
(22) feet above the rails of such track, and the other
edge of said roof projection shall be not less than eight
and one-half (812) feet horizontally from the center of
said track. [Inserted by compiler from Acts 1825, 39th
Leg., ch. 11, p. 32, § 3.]
[Art. 6559d. Not applicable when]
The provisions of this Act shall not apply to nor pre-
vent the building, placing, constructing or completing of
structures or other things enumerated in Sections One,
Two and Three, when same are being built, placed, or are
in the courses of construction at the time this Act takes
effect, or if material has been purchased for such placing,
building, or construction at the time this Act takes effect,
pursuant to prior contracts or plans. [Inserted by com-
piler from Acts 1925, 39th Leg., ch. 11, p. 33, § 3a.]
[Art. 6559e. Penalty recoverable by Attorney General]
If any railway company or other corporation, firm, part-
nership, or person shall hereafter erect any structure or
wire in violation of any provision of this Act, or shall
hereafter in any manner violate any provision of this Act,
it shall be the duty of the Attorney General immediately
to file a suit in court of competent jurisdiction, to collect
a penalty, which is hereby prescribed of not less than one
hundred ($100.00) dollars nor more than one thousand
($1,000.00) dollars for each violation of this Act; and
the Attorney General may, in his discretion, sue in one
proceeding for all violations of this Act by any one rail-
way company or other corporation, firm, partnership or
person. Provided further, that the said penalty shall ac-
crue for each day such structure, wire, lumber, wood or
other material is permitted to remain in violation of this
Act, and each day same is permitted to remain, constitutes
oe ail
Hees de Fae LS Ri PT CAF ie {00 Acetate ithe ciate. Sails. centile, ON SPAS tall
15a
a separate violation of this Act. [Inserted by compiler
from Acts 1925, 39th Leg., ch. 11, p. 33, § 4.]
[Art. 6559f. Regulation by Commission]
It is hereby made the duty of the Railroad Commission
to promulgate rules and regulations in accordance with
this Act. It is further provided that upon application reg-
ularly made and filed, and after notice to the Attorney
General, the Railroad Commission may, for good cause
shown, permit any railway company or other corporation,
firm, partnership, or person, or any county or municipality
to deviate from the terms of this Act in accordance with
an order of the Commission made and entered: and in
such event the corporation, firm, partnership, or person
acting in accordance with the order of the Railroad Com-
mission so made shall not be deemed to have violated this
Act. [Inserted by compiler from Acts 1925, 39th Leg.,
ch. 11, p. 33, § 5.]
16a
APPENDIX E
UNITED STATES CODE ANNOTATED
TITLE 29. LABOR
CHAPTER 15—OCCUPATIONAL SAFETY
AND HEALTH
§ 651. Congressional statement of findings and declara-
tion of purpose and policy
(a) The Congress finds that personal injuries and ill-
nesses arising out of work situations impose a substantial
burden upon, and are a hindrance to, interstate commerce
in terms of lost production, wage loss, medical expenses,
and disability compensation payments.
(b) The Congress declares it to be its purpose and policy,
through the exercise of its powers to regulate commerce
among the several States and with foreign nations and to
provide for the general welfare, to assure so far as pos-
sible every working man and woman in the Nation safe
and healthful working conditions and to preserve our
human resources—
(1) by encouraging employers and employees in their
efforts to reduce the number of occupational safety and
health hazards at their places of employment, and to stim-
ulate employers and employees to institute new and to
perfect existing programs for providing safe and healthful
working conditions;
(2) by providing that employers and employees have
separate but dependent responsibilities and rights with re-
spect to achieving safe and healthful working conditions;
(3) by authorizing the Secretary of Labor to set man-
datory occupational safety and health standards applicable
to businesses affecting interstate commerce, and by creat-
ing an Occupational Safety and Health Review Commis-
sion for carrying out adjudicatory functions under this
chapter;
i7a
(4) by building upon advances already made through
employer and employee initiative for providing safe and
healthful working conditions;
(5) by providing for research in the field of occupa-
tional safety and health, including the psychological fac-
tors involved, and by developing innovative methods, tech-
niques, and approaches for dealing with occupational
safety and health problems;
(6) by exploring ways to discover latent diseases, es-
tablishing causal connections between diseases and work
in environmental conditions, and conducting other re-
search relating to health problems, in recognition of the
fact that occupational health standards present problems
often different from those involved in occupational safety;
(7) by providing medical criteria which will assure in-
sofar as practicable that no employee will suffer diminished
health, functional capacity, or life expectancy as a result
of his work experience;
(8) by providing for training programs to increase the
number and competence of personnel engaged in the field
of occupational safety and health;
(9) by providing for the development and promulga-
tion of occupational safety and health standards;
(10) by providing an effective enforcement program
which shall include a prohibition against giving advance
notice of any inspection and sanctions for any individual
violating this prohibition;
(11) by encouraging the States to assume the fullest
responsibility for the administration and enforcement of
their occupational safety and health laws by providing
grants to the States to assist in identifying their needs and
responsibilities in the area of occupational safety and
health, to develop plans in accordance with the provisions
of this chapter, to improve the administration and enforce-
ment of State occupational safety and health laws, and to
18a
conduct experimental and demonstration projects in con-
nection therewith;
(12) by providing for appropriate reporting procedures
with respect to occupational safety and health which pro-
cedures will help achieve the objectives of this chapter and
accurately describe the nature of the occupational safety
and health problem;
(13) by encouraging joint labor-management efforts to
reduce injuries and disease arising out of employment.
* * * *
§ 654. Duties of employers and employees
(a) Each employer—
(1) shall furnish to each of his employees employ-
ment and a place of employment which are free from rec-
ognized hazards that are causing or are likely to cause
death or serious physical harm to his employees;
(2) shall comply with occupational safety and health
standards promulgated under this chapter.
(b) Each employee shall comply with occupational
safety and health standards and all rules, regulations, and
orders issued pursuant to this chapter which are applicable
to his own actions and conduct.
* * * *
§ 667. State jurisdiction and plans
(a) Assertion of State standards in absence of applicable
Federal standards
Nothing in this chapter shall prevent any State agency
Or court from asserting jurisdiction under State law over
any occupational safety or health issue with respect to
which no standard is in effect under section 655 of this
title.
RE RO EES LH
19a
(b) Submission of State plan for development and en-
forcement of State standards to preempt applicable Federal
standards
Any State which, at any time, desires to assume respon-
sibility for development and enforcement therein of occu-
pational safety and health standards relating to any occu-
pational safety or health issue with respect to which a
Federal standard has been promulgated under section 655
of this title shall submit a State plan for the development
of such standards and their enforcement.
(c) Conditions for approval of plan
The Secretary shall approve the plan submitted by a
State under subsection (b) of this section, or any modifica-
tion thereof, if such plan in his judgment—
(1) designates a State agency or agencies as the agency
or agencies responsible for administering the plan through-
out the State,
(2) provides for the development and enforcement of
safety and health standards relating to one or more safety
or health issues, which standards (and the enforcement of
which standards) are or will be at least as effective in
providing safe and healthful employment and places of
employment as the standards promulgated under section
655 of this title which relate to the same issues, and which
standards, when applicable to products which are distrib-
uted or used in interstate commerce, are required by com-
pelling local conditions and do not unduly burden inter-
state commerce,
(3) provides for a right of entry and inspection of all
workplaces subject to this chapter which is at least as
effective as that provided in section 657 of this title. and
includes a prohibition on advance notice of inspections,
(4) contains satisfactory assurances that such agency
or agencies have or will have the legal authority and quali-
20a
fied personnel necessary for the enforcement of such
standards,
(5) gives satisfactory assurances that such State will
devote adequate funds to the administration and enforce-
ment of such standards,
(6) contains satisfactory assurances that such State
will, to the extent permitted by its law, establish and
maintain an effective and comprehensive occupational
safety and health program applicable to all employees of
public agencies of the State and its political subdivisions,
which program is as effective as the standards contained
in an approved plan,
(7) requires employers in the State to make reports to
the Secretary in the same manner and to the same extent
as if the plan were not in effect, and
(8) provides that the State agency will make such
reports to the Secretary in such form and containing such
information, as the Secretary shall from time to time
require.
(d) Rejection of plan; notice and opportunity for hearing
If the Secretary rejects a plan submitted under subsec-
tion (b) of this section, he shall afford the State submit-
ting the plan due notice and opportunity for a hearing
before so doing.
(e) Discretion of Secretary to exercise authority over
comparable standards subsequent to approval of State
plans; duration; retention of jurisdiction by Secretary upon
determination of enforcement of plan by State
After the Secretary approves a State plan submitted
under subsection (b) of this section, he may, but shall not
be required to, exercise his authority under sections 657,
658, 659, 662, and 666 of this title with respect to com-
parable standards promulgated under section 655 of this
ye ERLE DE oS OPINED UEC OMEN BET TIE MEE CO
2la
title, for the period specified in the next sentence. The
Secretary may exercise the authority referred to above
until he determines, on the basis of actual operations
under the State plan, that the criteria set forth in subsec-
tion (c) of this section are being applied, but he shall not
make such determination for at least three years after the
plan’s approval under subsection (c) of this section.
Upon making the determination referred to in the preced-
ing sentence, the provisions of sections 654(a)(2), 657
(except for the purpose of carrying out subsection (f) of
this section), 658, 659, 662, and 666 of this title, and
standards promulgated under section 655 of this title,
shall not apply with respect to any occupational safety or
health issues covered under the plan, but the Secretary
may retain jurisdiction under the above provisions in any
proceeding commenced under section 658 or 659 of this
title before the date of determination.
(f) Continuing evaluation by Secretary of State enforce-
ment of approved plan; withdrawal of approval of plan by
Secretary; grounds; procedure; conditions for retention of
jurisdiction by State
The Secretary shall, on the basis of reports submitted
by the State agency and his own inspections make a con-
tinuing evaluation of the manner in which each State
having a plan approved under this section is carrying out
such plan. Whenever the Secretary finds, after affording
due notice and opportunity for a hearing, that in the ad-
ministration of the State plan there is a failure to comply
substantially with any provision of the State plan (or any
assurance contained therein), he shall notify the State
agency of his withdrawal of approval of such plan and
upon receipt of such notice such plan shall cease to be in
effect, but the State may retain jurisdiction in any case
commenced before the withdrawal of the plan in order
to enforce standards under the plan whenever the issues
involved do not relate to the reasons for the withdrawal
of the plan.
22a
(g) Judicial review of Secretary’s withdrawal of approval
or rejection of plan; jurisdiction; venue; procedure; appro-
priate relief; finality of judgment
The State may obtain a review of a decision of the Sec-
retary withdrawing approval of or rejecting its plan by the
United States court of appeals for the circuit in which the
State is located by filing in such court within thirty days
following receipt of notice of such decision a petition to
modify or set aside in whole or in part the action of the
Secretary. A copy of such petition shall forthwith be
served upon the Secretary, and thereupon the- Secretary
shall certify and file in the court the record upon which
the decision complained of was issued as provided in sec-
tion 2112 of Title 28. Unless the court finds that the Sec-
retary’s decision in rejecting a proposed State plan or
withdrawing his approval of such a plan is not supported
by substantial evidence the court shall affirm the Secre-
tary’s decision. The judgment of the court shall be sub-
ject to review by the Supreme Court of the United States
upon certiorari or certification as provided in section 1254
of Title 28.
(h) Temporary enforcement of State standards
The Secretary may enter into an agreement with a
State under which the State will be permitted to continue
to enforce one or more occupational health and safety
standards in effect in such State until final action is taken
by the Secretary with respect to a plan submitted by a
State under subsection (b) of this section, or two years
from December 29, 1970, whichever is earlier.
23a
APPENDIX F
CODE OF FEDERAL REGULATIONS
TITLE 29—LABOR
SUBTITLE B—REGULATIONS RELATING
TO LABOR si
CHAPTER XVII—OCCUPATIONAL SAFETY
AND HEALTH ADMINISTRATION,
DEPARTMENT OF LABOR
PART 1910—OCCUPATIONAL SAFETY
AND HEALTH STANDARDS
SUBPART J—GENERAL ENVIRONMENTAL
CONTROLS
§ 1910.145 Specifications for accident prevention signs
and tags.
(a) Scope.
(1) These specifications apply to the design, applica-
tion, and use of signs or symbols (as included in para-
graphs (c) through (e) of this section) intended to indi-
cate and, insofar as possible, to define specific hazards of
a nature such that failure to designate them may lead to
accidental injury to workers or the public, or both, or to
property damages. These specifications are intended to
cover all safety signs except those designed for streets,
highways, railroads, and marine regulations. These speci-
fications do not apply to plant bulletin boards or to safety
posters.
(2) All new signs and replacements of old signs shall
be in accordance with these specifications.
(b) Definitions. As used in this section, the word sign
refers to a surface on prepared for the warning of, or
safety instructions of, industrial workers or members of
the public who may be exposed to hazards. Excluded
from this definition, however, are news releases, displays
commonly known as safety posters, and bulletins used for
employee education.
24a
(c) Classification of signs according to usc—
(1) Danger signs.
(i) There shall be no variation in the types of design
of signs posted to warn of specific dangers and radiation
hazards.
(ii) All employees shall be instructed that danger signs
indicate immediate danger and that special precautions
are necessary.
(2) Caution signs.
(i) Caution signs shall be used only to warn against
potential hazards or to caution against unsafe practices.
(ii) All employees shall be instructed that caution
signs indicate a possible hazard against which proper
precaution should be taken.
(3) Safety instruction signs. Safety instruction signs
shall be used where there is a need for general instructions
and suggestions relative to safety measures.
(d) Sign design—
(1) Design features. All signs shall be furnished with
rounded or blunt corners and shall be free from sharp
edges, burrs, splinters, or other sharp projections. The
ends or heads of bolts or other fastening devices shall be
located in such a way that they do not constitute a
hazard.
(2) Danger signs. The colors red, black, and white
shall be those of opaque glossly samples as specified in
Table 1 of Fundamental Specification of Safety Colors for
CIE Standard Source “C”. American National Standard
Z53.1-1967, which is incorporated by references as speci-
fied in § 1910.6.
(3) [Reserved]
fe 20 ta sd WE ER, eben Sones
25a
(4) Caution signs. Standard color of the background
shall be yellow; and the panel, black with yellow letters.
Any letters used against the yellow background shall be
black. The colors shall be those of opaque glossy samples
as specified in Table 1 of American National Standard
Z53.1-1967.
(5) [Reserved]
(6) Safety instruction signs. Standard color of the
background shall be white; and the panel, green with
white letters. Any letters used against the white back-
ground shall be black. The colors shall be those of
Opaque glossy sampl esas specified in Table 1 of Ameri-
can National Standard, Z53.1-1967.
(7) [Reserved]
(8) [Reserved]
(9) [Reserved]
(10) Slow-moving vehicle emblem. This emblem (see
fig. J-7) consists of a fluorescent yellow-orange triangle
with a dark red reflective border. The yellow-orange
fluorescent triangle is a highly visible color for daylight
exposure. The reflective border defines the shape of the
fluorescent color in daylight and creates a hollow red
triangle in the path of motor vehicle headlights at night.
The emblem is intended as a unique identification for, and
it shall be used only on, vehicles which by design move
slowly (25 m.p.h. or less) on the public roads. The em-
blem is not a clearance marker for wide machinery nor
is it intended to replace required lighting or marking of
slow-moving vehicles. Neither the color film pattern and
its dimensions nor the backing shall be altered to permit
use of advertising or other markings. The material, loca-
tion, mounting, etc., of the emblem shall be in accordance
with the American Society of Agricultural Engineers Em-
blem for Identifying Slow-Moving Vehicles, ASAE R276,
26a
1967, or ASAE $276.2 (ANSI B114.1-1971), which are
incorporated by reference as specified in § 1910.6.
[Image Omitted]
(e) Sign wordings.
(1) [Reserved]
(2) Nature of wording. The wording of any sign
should be easily read and concise. The sign should con-
tain sufficient information to be easily understood. The
wording should make a position, rather than negative sug-
gestion and should be accurate in fact.
(3) [Reserved]
(4) Biological hazard signs. The biological hazard
warning shall be used to signify the actual or potential
presence of a biohazard and to identify equipment, con-
tainers, rooms, materials, experimental animals, or com-
binations thereof, which contain, or are contaminated
with, viable hazardous agents. For the purpose of this
subparagraph the term “biological hazard,” or “biohaz-
ard,” shall include only those infectious agents presenting
a risk or potential risk to the well-being of man.
(f) Accident prevention tags—
(1) Scope and application.
(i) This paragraph (f) applies to all accident preven-
tion tags used to identify hazardous conditions and pro-
vide a message to employees with respect to hazardous
conditions as set forth in paragraph (f)(3) of this sec-
tion, or to meet the specific tagging requirements of other
OSHA standards.
(ii) This paragraph (f) does not apply to construction,
maritime or agriculture.
PEEL OO FN
——————e ——
27a
(2) Definitions. “Biological hazard” or “BIOHAZ-
ARD” means those infectious agents presenting a risk of
death, injury or illness to employees.
“Major message” means that portion of a tag’s inscrip-
tion that is more specific than the signal word and that
indicates the specific hazardous condition or the instruc-
tion to be communicated to the employee. Examples in-
clude: “High Voltage,” “Close Clearance,” “Do Not
Start,” or “Do Not Use” or a corresponding pictograph
used with a written text or alone.
“Pictograph” means a pictorial representation used to
identify a hazardous condition or to convey a safety
instruction.
“Signal word” means that portion of a tag’s inscription
that contains the word or words that are intended to
capture the employee’s immediate attention.
“Tags” means a device usually made of card, paper,
pasteboard, plastic or other material used to identify a
hazardous condition.
(3) Use. Tags shall be used as a means to prevent
accidental injury or illness to employees who are exposed
to hazardous or potentially hazardous conditions, equip-
ment or operations which are out of the ordinary, unex-
pected or not readily apparent. Tags shall be used until
such time as the identified hazard is eliminated or the
hazardous operation is completed. Tags need not be used
where signs, guarding or other positive means of protec-
tion are being used.
(4) General tag criteria. All tags shall meet the fol-
lowing criteria:
(i) Tags shall contain a signal word and a major
message.
(A) The signal word shall be either “Danger,” “Cau-
tion,” or “Biological Hazard,” “BIOHAZARD,” or the
biological hazard symbol.
28a
(B) The major message shall indicate the specific haz-
ardous condition or the instruction to be communicated
to the employee.
(ii) The signal word shall be readable at a minimum
distance of five feet (1.52 m) or such greater distance as
warranted by the hazard.
(iii) The tag’s major message shall be presented in
either pictographs, written text or both.
(iv) The signal word and the major message shall be
understandable to all employees who may be exposed to
the identified hazard.
(v) All employees shall be informed as to the meaning
of the various tags used throughout the workplace and
what special precautions are necessary.
(vi) Tags shall be affixed as close as safely possible to
their respective hazards by a positive means such as string,
wire, or adhesive that prevents their loss or unintentional
removal.
(5) Danger tags. Danger tags shall be used in major
hazard situations where an immediate hazard presents a
threat of death or serious injury to employees. Danger
tags shall be used only in these situations.
(6) Caution tags. Caution tags shall be used in minor
hazard situations where a non-immediate or potential haz-
ard or unsafe practice presents a lesser threat of employee
injury. Caution tags shall be used only in these situations.
(7) Warning tags. Warning tags may be used to rep-
resent a hazard level between “Caution” and “Danger,”
instead of the required “Caution” tag, provided that they
have a signal word of “Warning,” an appropriate major
message, and otherwise meet the general tag criteria of
paragraph (f)(4) of this section.
(8) Biological hazard tags.
Bewes
4
a]
j
29a
(i) Biological hazard tags shall be used to identify the
actual or potential presence of a biological hazard and
to identify equipment, containers, rooms, experimental
animals, or combinations thereof, that contain or are con-
taminated with hazardous biological agents.
(ii) The symbol design for biological hazard tags shall
conform to the design shown below:
[Image Omitted]
(9) Other tags. Other tags may be used in addition
to those required by this paragraph (f), or in other situa-
tions where this paragraph (f) docs not require tags,
provided that they do not detract from the impact or
visibility of the signal word and major message of any
required tag.
[39 FR 23502, June 27, 1974, as amended at 43 FR
49749, Oct. 24, 1978; 43 FR 51759, Nov. 7, 1978: 49
FR 4322, Feb. 10, 1984; 51 FR 33260, Sept. 19, 1986:
61 FR 5508, Feb. 13, 1996; 61 FR 9239, March 7, 1996]
30a
APPENDIX G
U.S. Department of Labor
Occupational Safety and Health Administration
Citation and Notification of Penalty
Ft. Worth Area Office
U.S. Department of Labor—OSHA
8713 Airport Freeway, Suite 430
Fort Worth, TX 76180
The violation(s) described in this Citation are alleged to
have occurred on or about the day the inspection was
made unless otherwise indicated within the description
given below:
1. Type of Violation
Serious
2. Citation Numbers
01
3. Issuance Date
03/04/92
4. Inspection Number
013371662
5. Reporting ID
0636900
6. CSHO ID
M3042
7. Optional Report No.
1198
8. Page No.
2 of 2
9. To:
Chapparral Steel Company and its successors
300 Ward Road
Midlothian, TX 76065
3ta
10. Inspection Date(s):
11/12/91-03/03/92
11. Inspection Site:
300 Ward Road
Midlothian, Tex 76065
ok on oF *
12. Item Number
13. Standard, Regulation or Section of the Act Violated
29 CFR 1910.145(c)(3): Safety instruction sign(s)
were not used where there was a need for general in-
structions and suggestions relative to safety meas-
use(s).
14. Description
a. At the West end of the retaining wall used for
alloy storage. No warning sign was posted to instruct
employees of hazard of being caught between moving
box cars and the retaining wall.
15. Date by Which Violation Must Be Abated
03/10/92
16. Penalty
5000.00
17. Area Director
J. T. Knorpp
18. Fine
$10,000.00
NOTICE TO EMPLOYEES—The law gives an employee
or a representative the opportunity to object to any abate-
ment date set for a violation if he believes the date to be
unreasonable. The contest must be mailed to the U.S.
Department of Labor Area Office at the address shown
within 15 working days (excluding weekends and federal
32a
holidays) of the receipt by the employer of this Citation
and penalty.
EMPLOYER DISCRIMINATION UNLAWFUL—The
law prohibits discrimination by an employer against an
employee for filing a complaint or for exercising any rights
under this Act. An employee who believes that he has
been discriminated against may file a complaint no later
than 30 days after the discrimination with the U.S. Depart-
ment of Labor Area Office at the address shown above.
* * * ok
33a
APPENDIX H
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH
REVIEW COMMISSION
OSHRC DOCKET No. 92-0942
SECRETARY OF LABOR
Complainant,
Vv.
CHAPARRAL STEEL COMPANY
Respondent.
ORDER
On April 20, 1993, the parties filed a joint motion for
leave to amend complaint, an amended complaint and a
settlement agreement. The motion for leave to amend the
complaint is granted and the amended complaint is re-
ceived into the record.
The parties have submitted a settlement agreement
pursuant to Rule 100 of the Rules of Procedure. The
agreement meets the requirements of the Commission
for hospitable consideration of settlements. No objection
has been received from affected employees. The settle-
ment agreement is approved and incorporated herein by
reference.
So ORDERED.
/s/ E. Carter Botkin
E. CARTER BOTKIN
Administrative Law Judge
Date: May 10, 1993
34a
Case Name: Chapparal Steel Company
OSHRC Docket No.: 92-0942
Employer:
Steven R. McCown, Esq.
Littler, Mendelson, Fastiff & Tichy
300 Crescent Court, Suite 600
Dallas, Texas 75201
I hereby certify that a copy of the decision in this
case has been mailed to the parties whose names and
addresses appear on this notice, by first class mail.
s/ Illegible
Date: 5/10/93
Regional Solicitor:
Ernest A. Burford, Esq.
Office of the Solicitor
U.S. Department of Labor
525 So. Griffin Street
Suite 501
Dallas, TX 75202
Authorized Employee Representative:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, USDOL
200 Constitution Ave., NW—Rm $4004
Washington, D.C. 20210
35a
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH
REVIEW COMMISSION
OSHRC Docket No. 92-0942
SECRETARY OF LABOR
; Complainant,
CHAPARRAL STEEL COMPANY AND ITS SUCCESSORS
Respondent.
SETTLEMENT AGREEMENT
Come now complainant and respondent and submit the
following settlement agreement pursuant to Rule 2200.100
of the Commission’s Rules of Procedure:
This settlhement agreement specifies the terms of settle-
ment as set out below for each contested item and disposes
of all issues in the case.
Affected employees have not filed objections to the rea-
sonableness of any abatement time.
1. Complainant agrees to amend the following item:
Citation Number: 1; Item: 1; CFR Standard:
§ 5(a)(1) of the Act; Penalty: $5,000.00; Viola-
tion/Abatement Date: 3/10/92
Amended to Read
Citation 1, Item 1: Section 5(a)(1) of the Occupational
Safety and Health Act of 1970:.The employer did not
furnish employment and a safe place of employment which
was free from recognized hazards that were causing or
36a
likely to cause death or serious physical harm to em-
ployees in that employees were exposed to the following:
a. The employer did not instruct employees on the
recognized hazard which existed in the area located at the
loading dock west of the melt shop on or about November
11, 1991. Among other methods, one feasible and accept-
able method to correct this hazard is to instruct em-
ployees not to enter the area and institute and enforce an
“absolute work rule” which prohibits employees from
being in the area of the hazard when rail box cars are
present.
2. Complainant moves to amend Items No. 1 and 2 of
Citation No. 1, wherein a total penalty of $10,000.00 is
proposed, to propose a total penalty of $5,000.00
3. Upon the granting of complainant’s motion(s), re-
spondent moves to withdraw its notice of contest.
4. Upon-the entry of a final order of the Commission
approving this settlement agreement, respondent promises
to pay the total penalty assessed by the Commission.
5. Respondent states that the conditions described in
Items No. 1 and 2 of Citation No. 1 have been corrected
by instituting an “absolute work rule” against employees
working in areas such as those described in the above
mentioned citation. In addition to an absolute work rule,
respondent has conducted training on the hazards associ-
ated with working in areas such as the one mentioned
above. Respondent has installed warning signs to alert
its employees that the area in question can be hazardous
and to avoid the area when rail cars are present.
6. None of the foregoing agreements, statements, stipu-
lations, and actions taken by respondent shall be deemed
an admission by respondent of the allegation(s) contained
within the citation(s), notification(s) of penalty and the
complaint herein or as may be amended. The agreements,
statements, stipulations, and actions taken herein are
37a
made for the purpose of settling this matter economi-
cally and amicably.
7. Respondent certifies that the affected employees in
the above-styled case are not represented by an authorized
employee representative.
8. Respondent certifies that a copy of this settlement
agreement has been served upon the unrepresented affected
employees in the manner set forth in Rule 2200.100 of
the Commission’s Rules of Procedure, by posting same on
the 19th day of April, 1993.
9. Each party hereby agrees to bear its own fees and
other expenses incurred by such party in connection with
any stage of this proceeding.
JUDITH E. KRAMER
Deputy Solicitor of Labor
JAMES E. WHITE
Regional Solicitor
JACK F. OSTRANDER
Counsel for Safety and Health
CHAPARRAL STEEL COMPANY
By: /s/ Steven R. McCown By: /s/ Ernest A. Burford
STEVEN R. McCown ERNEST A. BURFORD
Attorney Attorney
Signed this 14th day of Signed this 17th day of
April, 1993. April, 1993.
LITTLER, MENDELSON, FASTIFF U.S. DEPARTMENT OF LABOR
& TICHY Office of the Solicitor
300 Crescent Court, Suite600 525 Griffin Street, Suite 501
Dallas, Texas 75201 Dallas, Texas 75202
Attorney for Respondent. Telephone: 214-767-4902
Attorneys for Complainant
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.