United States. Congress. Senate. Committee on Labo.

OSHA reform : coverage and enforcement : hearing before the Subcommittee on Labor of the Committee on Labor and Human Resources, United States Senate, One Hundred Third Congress, first session, on examining the scope of coverage and enforcement of the Occupational Safety and Health Administration of online

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Online LibraryUnited States. Congress. Senate. Committee on LaboOSHA reform : coverage and enforcement : hearing before the Subcommittee on Labor of the Committee on Labor and Human Resources, United States Senate, One Hundred Third Congress, first session, on examining the scope of coverage and enforcement of the Occupational Safety and Health Administration of → online text (page 13 of 17)
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proposal.

Prepared Statement of the American Gas Association

The American Gas Association (A.G.A.) is a national trade association comprising
approximately 250 natural gas distribution and transmission companies located
throughout the United States. Virtually all of our member companies are in some
way regulated by the Department of Labor (DOL) Occupational Safety and Health
Administration (OSHA) covering a total of approximately 204,400 employees whose
safety is at issue.



72

The safety record of the natural gas industry is quite impressive and distin-
guishes us from many other industries. Since the industry is already closely regu-
lated by the Department of Transportation's Ofiice of Pipeline Safety (DOT), gas in-
dustry employees enjoy a high level of security regarding their health and safety.
Therefore, our greatest concern with the Occupational Safetv and Health Act (OSH
Act) is how section 4(b) (1), is currently being implemented by OSHA and proposed
legislative changes to that section.

Section 4(bxi) of the Osh Act

Presently, section 4(b) (1) of the OSH Act precludes OSHA from applying its
standards to working conditions that are regulated by other federal agencies. The
other federal agencies' regulations need not be as stringent nor identical to OSHA's
standard. In addition, OSHA may not evaluate the other agency's enforcement of
its regulation. Three times in the past four years A.GA. has successfully argued to
exempt the gas industry from onerous and impractical OSHA regulations by chal-
lenging OSRA in court on the grounds that the DOT has jurisdiction over safety
standards for the natural gas pipeline industry. In these cases, OSHA refused to
relinquish jurisdiction even in cases where OSHA's rules clearly duplicate DOT
rules and delay or oreclude necessary public safety activities.

Under current OSHA administrative practices, the application of both another
agency's standards and OSHA's standards causes compliance difficulties because of
the overlapping and conflicting nature of the standards. Moreover, OSHA's practices
lead to duplicative, and therefore inefficient regulation of worker and public safety
and health.

DOT REGULATIONS

Clearly, the Department of Transportation, which was authorized by the Natural
Gas Pipeline Safety Act of 1968, as amended, with the responsibility to establish
and enforce safety standards both for interstate and intrastate gas systems, is in
a better position than OSHA to promulgate regulations to protect the health and
safety of natural gas industry workers. Indeed, DOT has promulgated, and is enforc-
ing, numerous regulations that cover facilities regulated by DOT and used in the
distribution, transmission, handling and storage of natural gas and liquefied natural

DOT'S regulation involves more than 2300 operators of a gas pipeline network
that extends more than one and one-half million miles. Therefore, DOT is much
more familiar with the unique characteristics of the gas industry and the need to
emphasize both woriter safety and public safety concerns.

An example of a classic preemption case involves OSHA's excavation rules that
include a provision prohibiting workers from entering an excavation if natural gas
is present at certain levels. Under DOT'S rules, however, gas utility woricers are
trained to work safely in the presence of flammable gas, since the rapid control and
repair of gas piping leaks often requires working with gas present. OSHA's rules
totally overlook the fact that it would be impossible to repair natural gas leaks in
buried pipes if workers were prohibited from entering excavations where natural
gas was present.

After challenging OSHA's rule in court, OSHA agreed to exempt the gas industry
from the duplicative sections of the excavations standards. However, OSHA refused
to address these serious concerns during the rulemaking process.

A.G.A. also had to challenge OSHA's regulations on Process Safety Management
and the Permit Confined Space rule.

OSHA's OVERLY BROAD REGULATIONS

OSHA continues to promulgate broad-brush regulations without regard to the im-
plementation differences among the different sectors of industry, and the need for
the regulations in a particular industry or industry segment. For example, as a re-
sult of a refinery explosion, OSHA promulgated its rule on Process Safety Manage-
ment of Highly Hazardous Chemicals in order to prevent similar occurrences. How-
ever, the scope of rule was overly broad, expanding its coverage to different types
of facilities that do not have the same characteristics as the refinery and chemical
plants. Therefore, the regulations are not appropriate for the facilities covered.

In addition, overly broad regulations pose an economic burden on those that were
not intended to be the target of a sf)ecific regulation and a burden on OSHA to en-
force the regulations. This approach is detrimental to the safety of woriiers because
it takes away OSHA resources that could otherwise be used to protect workers in



73

unregulated industries. It also takes away corporate resources that could be better
utilized to comply with OSHA regulations that are more pertinent to that industry.

CONCLUSION

With specific regard to the natural gas industry, we respectfully urge Congress
to specifically state that OSHA does not have jurisdiction over working conditions
and operations of natural gas transmission and distribution facilities subject to the
Natural Gas Pipeline Safety Act. In addition, Congress should examine and reform
the scope of existing and future OSHA actions to prevent overly broad regulations.

Prepared Statement of the Independent Federation of Flight Attendants

The Independent Federation of Flight Attendants (IFFA) the labor union rep-
resenting the flight attendants of Trans World Airlines, Inc, thanks Senator Metzen-
baum and the Subcommittee on Labor for holding this hearing on OSHA reform.
It is the position of IFFA that the nation's airline flight attendants should have ben-
efit of Occupational Safety & Health Administration protection in their work place
which currently is denied them due to interpretations of Section 4(bXl) of the
OSHAct. And we seek through this, S. 575 OSHA Reform Legislation to afford flight
attendants equal protection under the law so as to provide the same level of job
safety and health protection provided to most Americans.

regulatory requirements of OSHA AND FAA

The Occupational Safety and Health Act of 1970 (29 U.S.C. 5651 et seo^) was de-
signed to "ensure so far as possible every working man and woman in the Nation
safe and healthful working conditions", OSHA's enabling legislation established only
one statutory aim for this agency, i.e. to protect the safety and health of American
workers. OSHA's job is solely to improve occupational safety and health conditions.

The FAA, on the other hand, has a dual mandate: to promote safety of flight and
to promote air commerce. The Federal Aviation Act of 1958 (49 U.S.C. 51301 et
seq.), is composed of fourteen subchapters. It regulates air carriers with resect to
safety of the flying public, national defense, accident investigation, air traffic re-
quirements, insurance, etc. Nowhere in the entire Federal Aviation Act is there any
specific mention of the occupational safety or health of aviation employees. Indeed,
working conditions of employees are only mentioned as a function of ensuring the
safety of the flying public. Additionally, there is no statement of policy whatsoever
in the Federal Aviation Act which relates to employee occupational health and safe-
ty such as exists in the OSHAct. There are no references to the duties of employers
or the rights of^ employees with respect to employee safety and health; there are no
specific occupational health and safety standards to be followed by employers, nor
provisions for inspections, investigations, or enforcement of such standards.

Instead, Section 601 of the Federal Aviation Act (49 U.S.C. 51421(a) and (b) au-
thorizes and requires the Administrator of the FAA "to promote safety of flight of
civil aircraft in air commerce" bv establishing standards, rules, and regulations as
enumerated in subsections (1) through (6) ofthis same section. A straightforward
reading of this language clearly denotes that the word "safety" is modified and lim-
ited by the phrase "of flight". The subject matter and the words contained in this
section of the Federal Aviation Act make it clear that this Act is aimed not at em-
ployee safety, but at aircraft safety. In fact, the only part of 51421 which even men-
tions employees applies to maximum hours of work, again in the context of "safety
of flight". ^ „ , .

Thus, with respect to "safety", the Federal Aviation Act specifically hmits the
FAA's jurisdiction to the "safety of flight of civil aircraft". The California Supreme
Court reached this very conclusion in its decision in a case involving United Airlines
and the California Division of occupational Safety and Health. (United Airlines v.
Occupational Safety and Health Appeals Board & Division of Occupational Safety
and Health, S.F. 24396, Superior Court, 747454, Ca. Supreme Court, Filed 11/29/
82). The court further found that this interpretation of the FAA's mandate "com-
ports with the purpose of the act as stated by the federal courts; to assure the safety
of passengers, crew members and those on the ground who might be endangered by
accidents from unsafe flying conditions. (Raucn v. United Instruments. Inc. (548
F.2d 452 (3d Cir. 1976).)"

Nowhere in the Federal Aviation Act is there any reference to occupational safety,
except by implication as a necessary concomitant of passenger safety in flight. No-
where is there a reference to occupational health, nor does the legislative history
of this act indicate that Congress intended to confer on the FAA any jurisdiction



74

in this area. The purpose of the Federal Aviation Act was clearly stated by Senator
Monroney upon its original introduction in the Senate bill:

The principal purpose of this legislation is to establish a new Federal agency with
powers adequate to enable it to provide for the safe and efficient use oi navigable
airspace by both civil and military operations." (1958, U.S. Code Cong, and Ad.
News, 3741.)

We must conclude then that the Federal Aviation Act does not give the FAA the
statutory authority to regulate in the area of occupational health and safety.

JURISDICTIONAL DISPUTE DEVELOPS BETWEEN FAA & OSHA

The iurisdictional debate stems from Section 4(b) (1) of the OSHAct, which states:

"Nothing in this Act shall apply to working conditions of employees with respect
to which other Federal agencies, exercise statutory authority to prescribe or eniorce
standards or regulations affecting occupational safety or health. (Emphasis added)

Air carriers claim that aviation employees are exempt from OSHA iurisdiction be-
cause the aviation industry is regulated by the Federal Aviation Administration.
The FAA has agreed with this interpretation of Section 4(bXl).

The fact that the nations 70,000 flight attendants are left without adequate cov-
erage from any federal agency is not a new complaint. For twenty years the flight
attendant unions have been attempting to resolve this problem to no avail.

As early as 1974, the Department of Labor issued a memorandum concerning the
interpretation of Section 4CbXl) of the Occupational Safety and Health Act, which
stated in part that "no workers would remain without adequate occupational safety
and health protection. An agency must exercise its statutory authority by promul-
gating an enforceable standard or regulations which may serve as the legal basis
for permitting it to eliminate or reduce a particular hazardous working condition."

In response, the Federal Aviation Administration published guidance information
in 1975, in the Federal Register (40 F.R. 29114) concerning "Occupational Safety or
Health Standards for Aircraft Crewmembers". This information stated, in part, that
pursuant to its complete and exclusive responsibility for the regulation of the safety
of civil aircraft operation under the Federal Aviation Act of 1958, the FAA pre-
scribes and enforces standards and regulations affecting occupational safety or
health with respect to U.S. registered civil aircraft in operation.

What has developed thereafter is a twenty year jurisdictional dispute between the
FAA and OSHA, the result of which has left flight attendants with no agency exer-
cising its obligation to protect the health of this segment of U.S. workers.

Flight attendant unions brought this fact to tne attention of Congress during
hearings in 1976, 1979, and 1980.

During that time several attempts were made to resolve the jurisdictional dispute.
In a letter dated February 9, 1978, CA. McKay, Chief Air Carrier Division Flight
standards Service insists that:

"Matters of safety involving flight attendants in the performance of their job func-
tions are within the purview of tne Federal Aviation Administration (FAA), as they
were prior to the enactment of the Occupational Safety and Health Act (OSHA). The
FAA IS concerned with the total aviation safety environment and has not estab-
lished separate regulations similar to the OSHA standards for one group of employ-
ees within the environment. The standards used in the evaluation of the safety fac-
tors involving flirfit attendants in the performance of their job functions are pre-
scribed by the Federal Aviation Regulations (FAR) and various FAA directives."

Mr. McKay reiterates this position in a letter of April 25, 1978 and acknowledges
further that "The FAA has not established any specific methods for reporting flight
attendants' health impairments". But in spite of the fact that FAA has insisted that
fli^t attendant health matters "are within (their) purview", it still fails and contin-
ues to fail to exercise that authority.

By July of 1979, in large part due to the FAA's lack of further attention to flight
attendant concerns and its failure to reach any kind of working agreement with
OSHA or NIOSH, Gabriel J. Gillotti, OSHA Regional Administrator wrote the fol-
lowing memorandum for Grover Wrenn, OSHA Director:

There is an apparent need for specific safety and health standards related to
fli^t attendants and it is my opinion that OSHA has a responsibility to provide
this protection.

The FAA Regulations do take into account the airworthiness of the aircraft and
certain conditions within the aircraft (aisle width, ventilation, etc.), but the "work-
ing^ environment of the flight attendants is not addressed, nor are the associated
stresses, both physical and mental."

For the next several months it appeared as though progress might be on the hori-
zon. Two letters from OSHA Assistant Secretary Eula Bingham pointedly outlined



75

the problem and attempted to finally bring action fiwm the FAA. In the Januanr
11 1980 letter, Bingham accused the FAA of failing to develop enforceable stand-
ards and she suggested that NIOSH research the effects of flying on employee

health:

"OSHA agrees that airline flight attendants are entitled to the same protection
as other employees and we are very concerned that all workers receive adequate
safety and health protection. ^„tta r e ■ -^

The Occupational Safety and Health Act preempts OSHA from enforcing its
standards for those particular working conditions addressed by another agency s
regulations. In the case of flight attendants, OSHA regulations apply only to the ex-
tent that FAA has not developed enforceable standards or regulations for a particu-
lar hazard. While OSHA does not have comprehensive regulations exclusively appli-
cable to the hazards faced by flight attendants, OSHA's general industry standards
do apply to flight personnel in those cases where FAA has not taken action to pro-
tect employees from specific hazardous working conditions.

As you have noted in your correspondence to OSHA, the lack of knowledge con-
cerning hazards associated with flying has hampered efibrts by the Federal Govenn-
ment to determine whether any new standards are needed. In a recent letter to the
National Institute for Occupational Safety and Health (NIOSH), OSHA forwarded
materials on flight attendants' problems and requested that NIOSH research the ef-
fects of flying on employee heafth.This research would provide OSHA with informa-
tion for possible rulemaking on specific hazards and provide FAA with assistance
needed to develop safety and health regulations specifically for flight attendants.

In the meantime, flight attendants continued to try to get the FAA to adckess
health and safety concerns. In response to two of those requests Claremont L. Rob-
inson, then an FAA Principal Operations Inspector responded that the FAA wa^s
"unaware of our having any responsibility in the area ol fli^t attendant health. ,
and the "health of flight attendants does not come under the purview of the Federal
Aviation Administration". Not only did his superior, Layton E. Robison, then Chief,
Operations Unit FAA, agree in a July 28, 1980 letter that "on the job injuries sus-
tained by flight attendants, do not fall within our purview". He then went on to sug-
gest that, "If you feel the flight attendants' working environment is unsafe, vou
should report it to the Occupational Safety and Health Administration (OSHA) or
resolve the problem through Union procedures."

A second letter from Assistant Secretary Bingham was directed to Langhome M.
Bond, then the Administrator of the FAA. She expressed her concern that flight at-
tendants be afforded the same safety and health protection as those employees cov-
ered exclusively under the OSHAct, and proposed that NIOSH research of the ef-.
fects of flying on employee health would provide OSHA with information for possible
rulemaking on specific hazards and provide FAA with assistance needed to develop
safety and health regulations specifically for flight attendants. But, by far, her end-
ing is the most telling: ,

"Because of the potentially serious nature of the flight attendants problems, we
believe that both our agencies could be seen as having failed in our responsibilities
if the safety and health concerns of flight attendants do not receive thorough and

prompt attention." , ,. , i i j ii'i- u*

Sadly, this letter was written thirteen years ago, and little has changed, flight
attendant industrial injuries, environmental exposure and other health concerns go
largely unaddressed by the FAA. .

But it is not just flight attendant unions that believe the jurisdictional issue must
be resolved. A 1986 study conducted by the National Academy of Sciences entitled
"The Airliner Cabin Environment", which was the result of Congressional legislation
which provided $500,000 to study the quantity of fresh air per occupant and overall
quality onboard, quantity and quality of humidification, on board environmental
conditions and contamination limits, effects of low air pressure, and radiation expo-
sure, concluded that: i «- i

"Under current statutes and administrative orders, no federal office has direct re-
sponsibility for health effects associated with air travel. This lack of correspondence
between the issues as conceived by the Committee and the responsibilities of federal
agencies contributed to the difficulty of the Committee's work. The Committee be-
lieves that the health effects associated with air travel should be within the purview
of a federal agency."

EXAMPLES OF HEALTH AND SAFETY INSUFFICIENTLY ADDRESSED BY FAA

In 1990 the flidit attendant unions formally petitioned the FAA to either fulfill
its claimed regulatory responsibility to provide adequate health protections and
standards for flight attendants or relinquish that responsibility to OSHA. The peti-



76

tion was never dealt with by the FAA. Flight attendants health and safety problems
continue to be ignored

Among the areas that suffer from the lack of OSHA coverage:

Carpal Tunnel Syndrome

Throughout the years, NIOSH has maintained an interest in flight attendant
problems. One example of NIOSH interest and the most blatant FAA obstruction
comes in the area of the ergonomics and injuries associated with the in-aisle serving
carts placed on aircraft.

In 1981, a study of the ergonomic design of the carts was conducted at the request
of one of the flidit attendant unions by Dr. James Knight under an OSHA New Di-
rections Grant. Between 1981 and 1987, numerous cases of carpal tunnel syndrome
and other repetitive motion imuries developed among fli^t attendants. In 1987, the
union requested that NIOSH do a health hazard evaluation. For the next two vears,
NIOSH research consisted of obtaining flight data, personnel data, and flight at-
tendant iiyuiy data (OSHA 200 logs), resulting in a decision by NIOSH that an on-
site visit would be necessary to view the operation of the carts, conduct interviews,
and inspect workers compensation records. Unfortunately, the site visit was can-
celed after legal counsel for the airline challenged the authority of NIOSH to con-
duct the evaluation, stating that the FAA has sole jurisdiction to evaluate health
hazards in the airline industry for both in-air and on-ground activities. In a June
29, 1989 letter. Dr. Richard Hanmiel of the Health Evaluations and Technical As-
sistance Branch of NIOSH offered his regrets that NIOSH was unable to complete
its investigation and stated:

"Discussions between NIOSH and FAA concerning this health hazard evaluation
have been held, and the FAA has agreed with the airline position. The FAA pres-
ently has not decided what action to take on this matter. The FAA may decide to
pursue this matter on its own, or it may ask NIOSH for technical assistance to com-
plete the evaluation."

The FAA has taken no action whatsoever regarding this problem and has failed
to act upon or respond to a petition filed requesting that they establish ergonomic
standaros and investigate injuries caused by these carts.

Air Quality

Teny Fitzgerald, a flight attendant for 17 years, had the fright of her life on July
12, 1990. Her experience demonstrated beyond question that the FAA is not tech-
nically equipped to monitor possible aircraft cabin pollutants and air quality haz-
ards nor is it committed to rectifying these problems. Ms. Fitzgerald was working
on board a 727 aircraft flying from Columbus, Ohio to New York's LaGuardia air-
port. There were four flight attendants working the flight and a total of twenty-two
passengers on board. In ner own words, Ms. Fitzgerald describes the incident:

Not long after take-off one of the flight attendants began to feel ill and went to
the cockpit to use their auxiliaiy oxygen. In a few more minutes I began to feel nau-
seated and also went to the cockpit. There we both were — the other fli^t attendant
was sitting on the cockpit floor and I was in the seat — with oxygen masks strapped
to our faces. After a few minutes, I thought I was going to be sick to my stomach
so left the cockpit and went to the first class lavatory. When came out of the lava-
tory, my flying partner was unconscious in the first row of first class. As I sat in
the seat next to her to assist, I also fell unconscious. I woke up after landing as
the plane was taxiing to the gate. The only passenger in first class was standing
over me holding an oxygen mask to my face. The paramedics came onto the aircraft
at the gate, strapped oxygen on me immediately and took me to the hospital.

While Ms. Fitzgerald and another flight attendant were unconscious, a flight at-
tendant who had Deen working in the rear of the aircraft came forward to complain
of "not feeling well". She also received oxygen. When the fli^t arrived in New York,
it was necessary that paramedics and five ambulances met the flight. Four pas-
sengers and one flight attendant became extremely ill in addition to the two flight
attendants who were unconscious. A soldier was briefed on aircraft door operation
in case of an emergency on landing. This was necessary since three of the four air-
craft doors would have no fli^t attendants to help passengers evacuate the aircraft
if there were an emergency landing.

At this late date, little is still known about the substances to which the flight at-
tendants and passengers may have been exposed. IFFA sought to learn as much as
possible about the incident by making Freedom of Information Act (FOLA) requests
of The FAA and the Food and Drug Administration. The FAA responded by letter
stating that the investigation was handled by the FDA, and IFFA should request


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Online LibraryUnited States. Congress. Senate. Committee on LaboOSHA reform : coverage and enforcement : hearing before the Subcommittee on Labor of the Committee on Labor and Human Resources, United States Senate, One Hundred Third Congress, first session, on examining the scope of coverage and enforcement of the Occupational Safety and Health Administration of → online text (page 13 of 17)