VOLUME I Chapter 15 Occupational Safety and Health

• Jurisdiction: South Carolina

Chapter 15 Occupational Safety and HealthElizabeth B. PartlowLaw Offices of Elizabeth B. Partlow, LLC

I. The Occupational Safety and Health Act of 1970 and the South Carolina Occupational Safety and Health Acts of 1972 and 1973

Congress summarized the purpose of the Occupational Safety and Health Act of 1970 (the OSH Act) in its Preamble:

To assure safe and healthful working conditions for working men and women by authorizing enforcement of the standards developed under the Act; by assisting and encouraging the states in their efforts to assure safe and healthful working conditions; by providing for research information, education and training in the field of occupational safety and health; and for other purposes.¹

The Occupational Safety and Health Act, like many statutes, reflects that Congress values both national uniformity of standards and state participation in administration and enforcement of those standards. Thus, it establishes both national standards and an option for state enforcement.

Section 18 of the OSH Act of 1970 authorizes States to petition the United States Department of Labor (USDOL) for approval to assume responsibility for enforcement of the safety and health inspection requirements of the Act by a state agency.² The State of South Carolina enacted its own Occupational Safety and Health statute in 1971.³ In 1972, South Carolina became the first state to be approved by the USDOL as a certified state Occupational Safety and Health Administration (OSHA) program.⁴

South Carolina initially placed administration of its state plan in the Department of Labor. As part of government restructuring in 1994, the program was moved to the newly created South Carolina Department of Labor, Licensing and Regulation (LLR). Within LLR the Office of Occupational Safety and Health is responsible for ensuring that employers comply with all safety and health standards adopted by LLR. Since South Carolina has adopted its own state OSHA program, the OSH Act requires it to adopt standards that are "at least as effective" as the federal OSH Act standards. Most of the South Carolina OSHA standards are identical to the federal OSH Act standards. To ensure compliance, inspectors from the Office of Occupational Safety and Health conduct periodic inspections of workplaces throughout the state.

In addition to its enforcement activities, LLR supports the state's employers with a variety of services to improve health and safety conditions in the workplace. These services include training and consultation at no cost to the employer. Small businesses of fewer than 50 employees and public sector employers are given preference for these services.

A. Coverage and Exemptions

The Director of LLR is authorized to "promulgate, modify or revoke rules and regulations . . . for the purpose of attaining the highest degree of health and safety protection for any and all employees working within the State of South Carolina, whether employed in the public or private sector."⁵ Despite this inclusive language, the state does not regulate some employers.

1. Section 4(b)(1) Exemptions

Section 4(b)(1) of the OSH Act states that when federal agencies have exercised statutory authority to prescribe or enforce standards or regulations affecting occupational safety and health, such exercise preempts OSHA regulation.⁶ An employer may be exempt from coverage under both the state and federal OSH Act if the employer can show that another federal agency has exercised actual authority for employee safety and health at its workplace. The USDOL has entered into interagency agreements recognizing preemption by agencies such as the Mine Safety and Health Administration and the Nuclear Regulatory Commission. Court cases have established preemption for some workplaces regulated by the Environmental Protection Agency, the Coast Guard, the Federal Railway Administration, the Federal Aviation Administration and the U.S. Department of Transportation. This preemption can be utilized as a defense to an OSHA citation to an employer, but the employer must affirmatively raise the defense.

2. Federal Employment

The OSH Act made special provision for establishing and maintaining safety and health programs for federal employees.⁷ Additional requirements have been imposed by Executive Order. The South Carolina state plan does not enforce these requirements, which are solely under the jurisdiction of federal OSHA.

3. Federal Enclave

South Carolina has chosen not to exercise its regulatory authority on military bases, the Savannah River site, or other federally owned facilities.⁸ The authority to regulate such facilities remains with federal OSHA.

4. Maritime

In general, federal OSHA has jurisdiction over occupational safety and health on navigable waters. In South Carolina, the state exercises jurisdiction over state and local employees working in the ports.⁹

B. The General Duty Clause

Congress determined that OSHA would not be able to promulgate standards to cover all potential health and safety hazardous within the workplace. In order to allow the Secretary of Labor to ensure protection of employees whether or not a standard has been promulgated, Congress provided in the OSH Act what is now commonly known as the "General Duty Clause." The General Duty Clause states that each employer: "(1) Shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."¹⁰ South Carolina Code Section 41-15-80 (1) is substantially identical.¹¹

To prove a violation of the General Duty Clause, OSHA must establish by a preponderance of evidence that: (1) workers were exposed to a hazard in the workplace; (2) the hazard was a "recognized" hazard; (3) the hazard was causing or was likely to cause death or serious physical harm; and (4) the hazard was correctable, which means there was a feasible way for the employer to eliminate or materially reduce the hazard.¹²

Generally, courts and the Occupational Safety and Health Review Commission have agreed that, in order to show that a hazard was "recognized," OSHA must demonstrate the employer's own recognition of the hazard or recognition by the employer's industry or a consensus standard setting body. OSHA may use industry publications; studies performed at the request of that specific industry; other federal, state and local laws; or consensus standards such as those issued by the American National Standards Institute or the National Fire Protection Association.

Although the scope of the General Duty Clause is broad, courts have generally held that a citation is proper only if no specific safety and health standard applies to the hazard cited. A defense can be raised against a general duty citation if the employer can demonstrate that the hazard cited by OSHA is in fact covered by a specific safety or health standard and that the employer complied with that standard.

This defense is not absolute, however. In 1987, the Court of Appeals for the D.C. Circuit reversed the Occupational Safety and Health Review Commission and reinstated a General Duty Clause citation where workers were exposed to Freon at levels below the permissible exposure limit set in the regulation. In that case, the court ruled that OSHA had proved the employer knew the specific standard was inadequate to protect its workers against the hazard.¹³ In 2013, OSHA for the first time cited an employer for a General Duty Clause violation based on an industry's voluntary limit on exposure to styrene. Employees allegedly were exposed to styrene below the regulatory level of 100 parts per million but above the styrene industry's voluntary limit of 50 parts per million. OSHA initially issued ten citations with penalties of $49,500. OSHA and the company settled the matter in 2014 with one citation, a penalty of $2,000, and the company's agreement to reduce styrene levels.¹⁴

C. Standards and Regulations

The Secretary of Labor used the authority of Section 6(a) of the OSH Act to adopt numerous federal laws and consensus standards and certify them as OSHA standards prior to 1973. The South Carolina Department of Labor adopted these certified standards at the time it established its state plan.

After that date, the Secretary of Labor was authorized to promulgate new permanent regulations and standards following notice and comment procedures. OSHA publishes in the Federal Register a notice of proposed rule-making and in some cases, an "advance notice of proposed rule-making." The "advance notice" is frequently used to solicit information necessary to help in preparing a proposed standard. In the notice of proposed rule-making, OSHA typically sets forth the proposed standard, outlines the hazards to be protected against, and provides a period of time for public comment on the proposed rule. Interested parties, including individuals, labor unions, trade associations, and affected employers, may submit written comments and in some cases may present oral testimony at a public hearing. After the close of the comment period and the public hearing, OSHA is required to publish in the Federal Register the final text of any standard amended or adopted and the date it will become effective as a final rule.

As an authorized state, South Carolina must adopt an equally effective standard within six months after federal OSHA notifies the state that the federal change will require a corresponding change in state regulations.¹⁵ LLR generally promulgates the substantive language of the federal standard using the procedure set forth at Section 41-15-220, which does not require review under the state Administrative Procedures Act. On occasion, when the federal standard does not address issues of concern to South Carolina, LLR will promulgate a modified version of the standard using the procedures set forth in Sections 1-23-110 et seq.¹⁶

1. Standards

The OSH Act defines the...