February 1, 2008

Frank Hearl
Chief of Staff
National Institute for Occupational Safety and Health
200 Independence Avenue, SW
Washington, DC 20201

Re: Mittal Steel USA – Access to Employee Exposure and Medical Records Interpretation

Dear Mr. Hearl:

This is in response to your letter of March 26, 2007 requesting OSHA's interpretation of its regulations concerning NIOSH's obligation to receive and maintain employee exposure and medical records from the Weirton Steel Corporation. As discussed below, it is OSHA's position that Mittal Steel, as a "successor employer" under the relevant regulations, has the duty to receive and maintain these records, rather than NIOSH.

Background: Weirton owned and operated one or more steel plants in West Virginia at which its employees were exposed to coke oven emissions. It filed a voluntary Chapter 11 petition, and while the bankruptcy case was pending, it entered into an agreement to sell substantially all of its assets to ISG Weirton. ISG Weirton was subsequently acquired, directly or indirectly, by Mittal, and this letter will refer to both as Mittal. The bankruptcy court entered an order approving the sale.

Under the terms of the asset purchase agreement, Mittal did not purchase Weirton's employee and personnel records, including medical records. The bankruptcy court's order approving the sale contained a number of findings and determinations about the relationship between Weirton and Mittal. First, the order decrees that:

Nothing in this order or the Agreement shall be construed to release or nullify any liability to any governmental entity under police or regulatory requirements that any entity would be subject to as owner or operator of property after the Closing.

(Order ¶ 10 at 14.) In addition, the order makes a number of statements limiting Mittal's responsibility for other claims against Weirton. Representative of these provisions is Paragraph N of the order, which provides that Mittal acquired Weirton's assets:

free and clear of all Claims, Liens, encumbrances and other interests (collectively, the "Interests"), including, but not limited to . . . all debts arising in any way in connection with any agreements, acts or failures to act of [Weirton] . . . including, but not limited to, Claims otherwise arising under doctrines of successor liability to the greatest extent permitted by applicable law.

Counsel for Weirton then wrote NIOSH and OSHA arguing that the bankruptcy court order determined that Mittal was not a successor to Weirton. Because there was no successor to Weirton, it stated, the letter served as notice to NIOSH and OSHA that Weirton would distribute the records to employees who request it and destroy the other records. NIOSH accepted the records in accordance with 29 CFR §1910.1029(m)(3) and 1910.1029(m)(4). NIOSH is currently storing the records at a commercial facility in Pennsylvania, and comprise 26 pallets of records. NIOSH has not yet begun organizing or cataloging the records.

In early 2006, an OSHA inspection was conducted of the Mittal plant in which the compliance officers inquired into the absence of employee medical and exposure records prior to 2004. Without conceding that it was required to receive all of the records, Mittal asked NIOSH to provide it with these records for the persons it hired upon assuming ownership of the facility. NIOSH is providing these records, but estimates that more that 10,000 files regarding the Weirton operation will remain, once Mittal finishes retrieving these records. NIOSH has asked for an opinion from OSHA as to who is responsible for maintaining the records for the Weirton employees Mittal has not hired.

Applicable Standard and Regulation: Under the Coke Oven Emissions standard, employers whose employees are exposed to coke oven emissions are required to conduct employee exposure monitoring and to make available medical surveillance. [29 CFR §§1910.1029(e),(j)]. Employers must keep certain records related to these activities for at least 40 years or for the duration of employment plus 20 years, whichever is longer. [29 CFR §§1910.1029(m)(1)(ii), 1910.1029(m)(2)(iii)]. Such records are dealt with generally in 29 CFR §1020, the Access to Employee Exposure and Medical Records regulation. It provides that:

(h)(1) Whenever an employer is ceasing to do business, the employer shall transfer all records subject to this section to the successor employer. The successor employer shall receive and maintain these records.

* * *

(3) Whenever an employer is ceasing to do business and there is no successor employer to receive and maintain the records, . . . the employer shall (i) Transfer the records to the Director of the National Institute of Occupational safety and Health (NIOSH) if so required by a specific occupational safety and health standard; or (ii) Notify the Director of NIOSH in writing of the impending disposal of records at least three (3) months prior to the disposal of the records.

29 CFR §1020(h). The Coke Oven Emissions standard similarly requires that whenever "the employer ceases to do business, the successor employer shall receive and retain all records required to be maintained by the section." [29 CFR §1910.1029(m)(4)(i)]. If there is no successor employer, the standard requires that the records be "transmitted by registered mail" to NIOSH. [29 CFR §1910.1029(m)(4)(ii)]. OSHA imposes these lengthy record retention requirements because of the long latency periods associated with cancer and other health effects from coke oven emissions. See 41 FR 46742, 46782; 45 FR 35212, 35268-70.

Analysis: It is OSHA's position that when an employer purchases a business's assets and continues to use those assets in substantial continuity with the predecessor, it is a successor employer subject to the records maintenance requirements of the above-noted regulations. This furthers the goals of these rules, because it imposes the recordkeeping obligation only on employers whose employees are facing the same occupational safety and health risks as those of the predecessor–in this case exposure to coke oven emissions–that the recordkeeping requirement seeks to ameliorate.

In this regard, OSHA finds the analogy to the Supreme Court's decision in Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987) persuasive. There, the Court held that an employer which had purchased a plant from another firm and hired a majority of its employees from that firm, had a duty to bargain with the union that represented those employees at the predecessor if it has a "substantial continuity" with the operations of the predecessor. The Court reasoned that the policy behind the NLRA was industrial peace, which would be undermined if employees thought that their choice in representation was subject to "the vagaries of an enterprise's transformation." [Id. at 38-40]. Imposition of the duty on the new employer was fair, the Court said, because the "employer intends to take advantage of the trained work force of its predecessor." [Id. at 41].

OSHA believes that this same approach is consistent with the aims of the OSH Act and OSHA's recordkeeping regulations. The purpose of the OSH Act–to provide safe and healthful working conditions for employees–is furthered by requiring the new employer to maintain the records in order to deal with the long-latency disease hazards involved here, and protection of employee health should not turn on the vagaries of a continuing enterprise's ownership. The Court in Fall River justified imposing the continued duty to bargain, based on the fact that the new company was taking advantage of the same trained workforce that the union had represented; likewise, here, the new employer's obligation to maintain exposure and health records is justified where it uses former employer's trained work force which gained its experience at the cost of being exposed to occupational safety and health hazards.

The Fall River Court said that the determination of whether the purchaser of a business's assets is a successor under this doctrine is to be made "from the totality of the circumstances of a given situation," and focuses on "whether the new company has acquired substantial assets of its predecessor and continued, without interruption or substantial change, the predecessor's business operations." Id. at 43. OSHA believes that Mittal satisfies this test because it understands that Mittal is making the same products, using the same processes and employing the same workers. Thus, Mittal is a "successor employer" for the purposes of the recordkeeping requirements noted above. To the extent that the asset purchase agreement between Weirton and Mittal provides differently, it is not binding on either NIOSH or OSHA.

OSHA does not believe that the bankruptcy court's order alters this obligation in any way. The duty imposed on Mittal by the recordkeeping rules is independent of Weirton's obligations under the rules. While Weirton was obligated to transfer the records to the successor employer, the rules place a distinct obligation on Mittal to "receive and maintain" the records. [29 CFR §1910.1020(h)(1); 29 CFR §1910.1029(m)(4)(i)]. Mittal's responsibility is not derivative of Weirton's, and Mittal is not being held responsible for anything Weirton did or failed to do.

Thus, Mittal's obligation to receive and maintain the records falls within the language of the bankruptcy court's order that it does not affect "liability to any governmental entity under police or regulatory requirements that any entity would be subject to as owner or operator of property after the Closing." Mittal is subject to these recordkeeping obligations as "operator of the property after the Closing," and, therefore, the bankruptcy court does not affect them. Further, because Mittal's obligation is not derivative of Weirton's, it is not affected by the order's determination that Mittal assumes no "Claims, Liens, encumbrances and other interests . . . "arising in any way in connection with any agreements, acts or failures to act of [Weirton]." In any event, OSHA does not believe that a bankruptcy court has the authority to terminate a buyer's prospective regulatory obligations of the sort involved here.

For these reasons, OSHA believes that Mittal is a "successor employer" for purposes of 29 CFR §§1910.1020(h)(1) and 29 CFR §§1910.129(m)(4)(i), and, therefore, is responsible for receiving and maintaining all of Weirton's employee exposure and medical records, not just those of the former Weirton employees that Mittal currently employs.

Currently, there is a Standards Improvement Project (SIPs III) proposal that is in review that does address records sent to NIOSH as required by most of OSHA's health standards. NIOSH has provided comments to the SIPs III docket, requesting that OSHA remove these requirements. If you have further questions on the SIPs III project, you can contact the Directorate of Standards and Guidance directly at 202-693-2143.

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 interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov. If you have any further questions, please feel free to contact the Office of Health Enforcement at 202-693-2190.

Sincerely,



Richard E. Fairfax, Director
Directorate of Enforcement Programs