# Petition for Writ of Certiorari — Chaparral Steel Co. v. Texas > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1535%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1998 - **Citation:** 525 U.S. 813 ## 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1535%3A1. Public record. Not legal advice.