May 28, 2004 [Reviewed May 31, 2018]

Ronald J. Gumbaz
Vice President
Delphi Petroleum, Inc.
12 Broad Street
Red Bank, New Jersey 07701

Re: Duty of utility companies or owners to respond under 29 CFR 1926.651(b)(2)

Dear Mr. Gumbaz:

This is in response to your March 16, 2004, fax to the Occupational Safety and Health Administration (OSHA) asking what duties and penalties are incurred by utility companies or owners under 29 CFR 1926.651(b)(2).

We have paraphrased your questions below:

Question (1): Is the owner or operator of a utility pipeline subject to the Occupational Safety and Health Act or to standards, rules, orders, and regulations promulgated pursuant to the Occupational Safety and Health Act?

Answer:
OSHA's authority is limited by Section 4(b)(1) of the Occupational Safety and Health Act, which precludes OSHA from regulating working conditions over which other federal agencies "exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health." 29 U.S.C. 653(b)(1). Thus, OSHA's authority to address occupational safety and health hazards associated with oil and gas pipelines is controlled by the scope and nature of regulations enforced by the U.S. Department of Transportation, Office of Pipeline Safety (OPS). In practice, unless the specific pipelines are exempted from coverage under OPS regulations, OSHA authority over working conditions associated with oil and gas pipelines generally is limited to employers (e.g., contractors hired by pipeline owners or operators) and their workers, who are not covered by OPS regulations. See, e.g., Columbia Gas of Pennsylvania v. Marshall, 636 F.2d 913 (3d Cir. 1980); Texas Eastern Transmission Corp., 1975 WL 21706 (OSHRC, Docket Nos. 4078 and 4091, October 28, 1975).

Question (2): Does §1926.651(b)(2) require utility companies to respond to an excavator's request that the utility company or owner come to the excavation site and establish the location of the utility's underground installations prior to the start of excavation?

Answer:
No. As explained above, OSHA's authority with respect to pipeline owners and operators generally is preempted by the existence and application of standards enforced by OPS. Title 49 CFR 195.442 addresses a pipeline owner or operator's obligation to take measures adequate to prevent damage to pipelines from excavation activities. Thus, from the face of the standard, it appears that OSHA would be preempted from taking enforcement action against a pipeline owner or operator who is covered by this standard and who failed to respond to an excavator's request to establish the location of an underground oil pipeline.

Even if OSHA were not preempted from enforcing the OSH Act in the situation that you described, 29 CFR 1926.651(b)(2) establishes an obligation for the excavator, not for the owner or operator of the underground installation. The provision states:

Utility companies or owners shall be contacted within established or customary local response times, advised of the proposed work, and asked to establish the location of the utility underground installations prior to the start of actual excavation. When utility companies or owners cannot respond to a request to locate underground utility installations within 24 hours (unless a longer period is required by state or local law), or cannot establish the exact location of these installations, the employer may proceed, provided the employer does so with caution, and provided detection equipment or other acceptable means to locate utility installations are used.

The provision does not specifically state that the utility must respond, and there is no indication in the preamble to the standard reflecting an intent to create such an obligation. Therefore, we conclude that the provision does not include a requirement that the utility company or owner respond to the mandated request.¹

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA requirements are set by statute, standards, and regulations. Our letters of interpretation do not create new or additional requirements but rather explain these requirements and how they apply to particular circumstances. This letter constitutes OSHA's interpretation of the requirements discussed. From time to time, letters are affected when the Agency updates a standard, a legal decision impacts a standard, or changes in technology affect the interpretation. To assure that you are using the correct information and guidance, please consult OSHA's website at https://www.osha.gov. If you have further questions, please feel free to contact the Directorate of Construction at (202) 693-2020.*

Sincerely,


Russell B. Swanson, Director
Directorate of Construction

*[This letter has been modified (non-substantive changes) on May 31, 2018, and reflects current OSHA regulations and policies.]

¹ Note that we are only addressing the issue of whether there is such an obligation to respond under this OSHA provision. Some state and local governments have laws requiring a utility to respond to such a request. In addition, as noted above, regulations enforced by OPS may mandate that a utility respond in a specified manner to a request to establish the location of underground installations. See, e.g., 49 CFR 195.442. [ back to text ]