Supreme Court Holds That OSHA Can Regulate Working Conditions on Uninspected Vessels
February, 2002
by Kimbley A. Kearney and
For some time, marine operators have seen ever increasing efforts by OSHA to enforce its own regulations on commercial vessels. The Fifth Circuit Court of Appeals, among other courts, has challenged OSHA’s authority in the maritime industry, recognizing the difficulty (and often impracticability) of enforcing OSHA’s regulations on ships. The Supreme Court has now “opened the door” to OSHA regulation of uninspected vessels.
Facts
In Chao v. Mallard Bay Drilling, Inc., 122 S. Ct. 738 (2002), an explosion on board Rig 52, an oil and gas exploration barge drilling in Louisiana’s territorial waters, killed and injured several workers. The Coast Guard investigated, but did not accuse the vessel owner/operator of violating any of its regulations, noting that Rig 52 was an “uninspected vessel.” Later, however, OSHA cited the owner for three violations of the OSHA Act and its regulations. The citations alleged the following omissions: failure to promptly evacuate employees; failure to develop and implement an emergency response plan; and failure to train employees in emergency response.
The vessel owner did not deny the charges, but challenged OSHA’s jurisdiction on two grounds: first that the barge was not a “workplace” within the meaning of section 4(a) of the Act; and second that section 4(b)(1) of the Act preempted OSHA jurisdiction because the Coast Guard had exclusive authority to prescribe and enforce safety and health standards on vessels like Rig 52.
An administrative law judge (ALJ) rejected both challenges and ruled that OSHA had jurisdiction because the barge was a “workplace” under the Act and the Coast Guard had not preempted OSHA’s jurisdiction. The ALJ explained that there was no industry-wide exemption from OSHA regulations for uninspected vessels and no Coast Guard regulation specifically regulating the citations’ subject matter. The Occupational Safety and Health Review Commission declined review of the decision and issued a final order assessing a penalty of $4410 per citation.
The Fifth Circuit Court of Appeals reversed. The Court held that the Coast Guard has exclusive jurisdiction over the regulation of working conditions aboard vessels like Rig 52, precluding OSHA regulation under section 4(b)(1) of the Act. The Court further held that this preemption encompasses both inspected and uninspected vessels. The Court did not address the issue of whether the barge was a “workplace” under section 4(a) of the Act.
The Supreme Court’s Analysis
The Supreme Court disagreed with the Fifth Circuit’s interpretation of the Act’s preemptive force and reversed. The Court stated that Congress’ use of the word “exercise” in section 4(b)(1) makes clear that mere possession by another federal agency of unexercised authority is insufficient to displace OSHA’s jurisdiction. Further, another federal agency’s minimal exercise of some authority does not result in complete preemption of OSHA jurisdiction. The Court concluded that the Coast Guard had not exercised its authority within the meaning of the Act because Rig 52 was not required to be inspected by the Coast Guard under its own regulations. Thus, there was no preemption of OSHA regulations. The Coast Guard had neither affirmatively regulated the working conditions at issue, nor asserted comprehensive regulatory jurisdiction over working conditions on uninspected vessels.
The Court explained that although OSHA authority had undisputedly been preempted with respect to inspected vessels, the Coast Guard’s authority over uninspected vessels is more limited. In the instant case, the Coast Guard’s general maritime regulations were not a sufficient exercise of regulatory authority to preempt OSHA jurisdiction. The Court noted that the vessel owner could not identify any specific regulations addressing the occupational safety and health risks posed by inland drilling operations on uninspected vessels.
The Court also held that the barge was a “workplace” for purposes of OSHA jurisdiction. The Court briefly explained that the vessel was located within a geographic area described in section 4(a) — a “State” — and that the language of that section attaches no significance to the fact that the rig was anchored in navigable waters.
Learning Point:
The Supreme Court’s narrow construction of section 4(b)(1)’s preemptive force means that owners and operators of uninspected vessels — barges, tugboats and dredging boats — may be required to comply with OSHA regulations pertaining to safety in the “workplace.” When the question of competing authority arises, OSHA will now more likely prevail. The key to resolving the conflict turns upon the specificity of the Coast Guard regulation involved. The Coast Guard regulation must address the same kind of risks aboard the same kind of vessel at issue. Otherwise, there will be no preemption and OSHA regulations will govern exclusively.
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