MFA Enters. v. OSHRC: Eighth Circuit Vacates OSHA PPE Citation as Preempted

Introduction

MFA Enterprises, doing business as West Central Agri Services, sought review of an order issued by the Occupational Safety and Health Review Commission after an administrative law judge upheld a citation for a willful and serious violation of 29 C.F.R. § 1910.132(d)(1)(i). The United States Court of Appeals for the Eighth Circuit described the facility’s operations, the events that led to the citation, the evidence presented to the administrative law judge, and the legal framework governing OSHA jurisdiction. The panel then considered whether the working conditions in question fell under the authority of the Federal Railroad Administration.

Background of the Facility and OSHA’s Investigation

West Central operated a grain handling facility in Adrian, Missouri. The record showed that the facility loaded railcars through a process that required employees to climb approximately fifteen feet to the top of the railcars. Employees opened the lids of each railcar to allow grain to enter through overhead spouts. A Trackmobile positioned railcars beneath the spouts and moved them out after loading.

OSHA initiated an investigation on December 31, 2020, to examine an unrelated explosion at the facility. During that investigation, an inspector viewed a recording that showed an employee on top of a railcar without fall protection. Interviews with employees confirmed that workers often did not use fall protection equipment during the railcar loadout process. These interviews also indicated that supervisors were aware of this practice and that employees were not subject to discipline for failing to use protective equipment.

West Central had previously installed a fall protection system in 2016. The system consisted of a trolley mounted on suspended I-beams running parallel to the tracks. Employees used a harness connected to a self-retracting lifeline attached to the trolley. The system remained in place on the west track but had been removed from the east track. Employees described several concerns with the system, such as restricted movement, difficulty reaching all lids, and occasional malfunction of the trolley. Despite these issues, training materials instructed employees to use the system whenever it was present.

The administrative law judge found that the company recognized the fall hazard based on the existence of the protection system, testimony from a corporate safety director, and instructions provided in training. OSHA therefore issued a citation for a willful and serious violation, and the administrative law judge assessed a penalty of $122,878.80.

The Citation and the Administrative Law Judge’s Decision

The citation alleged that the employer failed to ensure the use of personal protective equipment required to protect employees from known hazards. The administrative law judge concluded that the employer had not conducted a written hazard assessment but nevertheless acknowledged the existence of a fall hazard. The decision relied in part on a 1996 OSHA interpretation letter known as the Miles Memorandum. The memorandum addressed the application of § 1910.132(d) to work performed on top of rolling stock and stated that the regulation could apply where fall protection was feasible.

The administrative law judge upheld the citation after finding that West Central failed to require the use of fall protection and that supervisors were aware employees regularly did not use harnesses or tethers.

Appellate Review and the Governing Legal Standard

On appeal, the panel reviewed factual findings to determine whether substantial evidence supported them and reviewed legal conclusions to determine whether they were arbitrary, capricious, or inconsistent with law. The central question concerned OSHA’s jurisdiction. Under 29 U.S.C. § 653(b)(1), OSHA’s authority does not extend to working conditions for which another federal agency exercises statutory authority to prescribe or enforce safety standards.

The panel described the two-step preemption test. First, another federal agency must have statutory authority over the working conditions. Second, that agency must have exercised such authority through applicable standards.

The working conditions at issue involved employees accessing and working on top of railcars during the loadout process. The panel defined working conditions as the environmental area in which an employee customarily performs daily tasks.

FRA Authority Over Railcar Working Conditions

The panel examined the Federal Railroad Administration’s 1978 policy statement. The statement identified categories of working conditions over which the FRA exercised authority. The included list covered the protection of employees working between or under rolling equipment and certain aspects of operations within yard limits. The policy statement also addressed walking-working surfaces associated with locomotives and rolling equipment, including railcars.

The panel noted that the FRA asserted its authority over the environmental area of railcars and regulated conditions related to surfaces on those railcars. It concluded that the FRA had exercised authority over the working conditions applicable to employees who worked on top of railcars.

The panel then examined OSHA’s application of § 1910.132(d)(1)(i). That regulation required employers to select and require the use of personal protective equipment to protect employees from identified hazards. The regulation did not specifically address the working conditions on top of railcars. The administrative law judge relied on the Miles Memorandum. The panel determined that the memorandum was an attempt by OSHA to assert jurisdiction where the FRA had already exercised authority.

Because FRA standards governed the relevant working conditions, the panel concluded that OSHA lacked jurisdiction.

Final Ruling

The panel vacated the citation and reversed the administrative law judge’s order.

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