Home » Case Summaries » 1997 » Industrial Truck Ass'n v. Henry


Industrial Truck Ass'n v. Henry



This case concerned preemption of state health and safety statute provisions and implementing regulations by federal Hazard Communications Standards (HCS)[1] under the Occupational Safety and Health Act (OSHA).[2] A truck manufacturer brought an action against the State of California seeking declaration that California Safe Drinking Water and Toxic Enforcement Act (Proposition 65)[3] and its regulations were preempted by the federal HCS regarding warning requirements imposed on manufacturers and distributors of industrial trucks (forklift trucks).

OSHA authorizes the Secretary of Labor to promulgate federal occupational health and safety standards such as the HCS to protect workers from hazardous chemicals in the workplace. This standard applies to all sectors of the economy and establishes rules for the identification and evaluation of such chemicals as well as training procedures for handling them. OSHA also permits states to assume and maintain regulatory responsibility for areas covered by a federal standard promulgated under the Act, but to do so, a state must submit to the Occupational Safety and Health Administration (Administration) a “state plan” with proposed state standards. If the state plan is approved by the agency, the state standards displace applicable federal standards; if not approved, the state plan is preempted by the federal statute.

California’s plan was first approved in 1973 and has since been modified and approved by the Administration several times. In 1986, California voters approved Proposition 65, which required the state to publish and maintain a list of chemicals known to cause cancer, birth defects, or other reproductive harm, and also prohibited any person doing business in the state from intentionally exposing individuals to those chemicals without a clear and reasonable warning prior to exposure. To implement this piece of legislation, the California Office of Environmental Health Hazard Assessment (OEHHA) promulgated regulations that provided specific warning methods (OEHHA Regs).[4] These regulations went into effect in 1988 and 1989.

In 1990, labor and environmental groups concerned that the HCS promulgated under OSHA would preempt Proposition 65 successfully sought a writ of mandamus from the California Court of Appeals ordering the California Occupational Safety and Health (Cal-OSH) Standards Board to incorporate the provisions of Proposition 65 into the State Plan and to submit the amended plan to the Administration for approval. To comply with the court’s order, the board issued regulations seeking to incorporate Proposition 65 and the OEHHA Regs into the state plan (Title 8 Regs),[5] which went into effect in 1991. The Administration recently approved the Proposition 65 modification to the state plan, subject to certain conditions. Therefore, California currently has two sets of regulations on its books dealing with Proposition 65 warnings: Title 8 Regs in the state plan and the OEHHA Regs.

In this action the plaintiffs, manufacturers and distributors of forklift trucks, alleged that enforcement of the warning provisions of Proposition 65 and the OEHHA Regs against industrial truck manufacturers was preempted under OSHA by the HCS, and sought declaratory and injunctive relief against the defendants, the Attorney General of California and the Director of OEHHA. The plaintiffs argued that the Title 8 Regs did not include all of the occupational provisions of the OEHHA Regs because Title 8 Regs expressly apply Proposition 65’s warning requirements to “employers” of California workers, as compared to the OEHHA Regs, which apply to “any person in the course of doing business.”[6] Plaintiffs argued that under the Title 8 Regs, the State Plan does not apply warning requirements to manufacturers or distributors of industrial trucks beyond imposing an obligation to warn their own employees, while the OEHHA Regs do apply to such entities. Therefore, plaintiffs argued that the broader language of the OEHHA Regs and Proposition 65 itself is preempted by the HCS standard under OSHA, because the Title 8 language submitted and approved by the Administration in the state plan did not incorporate the broader language. Plaintiffs moved for summary judgment against enforcement of the nonapproved provisions. Defendants moved to dismiss, arguing that Title 8 Regs did include all of the warning requirements of Proposition 65 and the OEHHA Regs through incorporation by reference in an appendix to the Title 8 Regs, and therefore there was no preemption argument. The district court granted the defendants’ motion to dismiss, but did not address whether Proposition 65 and the OEHHA Regs had been fully incorporated into the state plan. In addition, the court held that even if the regulations were not included in the state plan, the OEHHA Regs would not be preempted by the federal HCS standard. The Ninth Circuit reversed on appeal, holding that OSHA and the HCS do preempt Proposition 65 and the OEHHA Regs.

The court relied on the Supreme Court holding in Gade v. National Solid Waste Management Ass’n[7] that OSHA expressly manifests Congress’s intent to preempt state law. The Gade court quoted section 667(b) of OSHA in holding that unless a state plan is submitted to the Administration, OSHA preempts “all state occupational safety and health standards relating to any occupational safety or health issue with respect to which a Federal standard has been promulgated.”[8] Therefore, even if state regulations do not conflict with the federal scheme, as long as they relate to the issue of the federal standard, they are still preempted by the standard. Accordingly, if a state submits some regulations on a worker safety issue to the Administration as part of its state plan and omits other regulations relating to the same issue, the omitted regulations, even if complementary to OSHA’s scheme, will be preempted by the federal standard. Otherwise, state plan approval would be superfluous because states could pick and choose which occupational health and safety regulations to submit to the Administration.

The court then examined whether portions of Proposition 65 and the OEHHA Regs not included in the state plan related to the issue of the federal HCS. After justifying reasons for granting the Administration deference in interpreting the preemptive effects of its regulations, the court examined the agency’s definition of issue as it pertained to the HCS. The Administration stated in implementing regulations of the HCS that the standard was intended to address comprehensively the “issue of evaluating the potential hazards of chemicals, and communicating information concerning hazards and appropriate protective measures to employees, and to preempt any legal requirements of a state . . . pertaining to this subject.”[9] Therefore, the Ninth Circuit concluded that Proposition 65 and the OEHHA Regs fell “squarely within the ‘issue’ of the [HCS],” because both were state laws that required “evaluating the potential hazards of chemicals and communicating information concerning hazards.”[10] The defendant tried to counter this argument by stating that because the HCS did not impose a regulatory burden on plaintiffs, the standard could not preempt state regulations not applying to the plaintiff. However, the court disagreed, concluding that because the Administration defined the issue of the HCS on the basis of the type of regulation involved, rather than who bore the regulatory burden, the agency had completely occupied the field of hazard evaluation and communication.

The Ninth Circuit supported its conclusion that the state laws in question were preempted by the federal HCS by examining implementing regulations for section 18 of OSHA, which state that “no state . . . may adopt or enforce . . . any requirement relating to the issue addressed by this Federal standard, except pursuant to a Federally-approved state plan.”[11] Therefore, federal standards such as the HCS preempted not only state standards directly covering the same issue, but also the broader category of state laws relating to the federal issue. Because the OEHHA Regs and HCS both directly governed occupational health and safety, they were related to the same issue. Therefore, the court held that as applied to manufactures and distributors of industrial trucks, California’s Proposition 65 occupational warning requirements were preempted by OSHA and the HCS, except as contained within the California state plan.

[1]29 C.F.R. § 1910.1200 (1997).

[2]29 U.S.C. §§ 651-678 (1994).

[3]Cal. Health & Safety Code §§ 25249.5 – 25249.13 (West 1998).

[4]Cal. Code Regs. tit. 22, §§ 12000-12100 (1996).

[5]Cal. Code Regs. tit. 8, § 5194(b)(6) (1996).

[6]Id. § 5194(b)(6)(A).

[7]505 U.S. 88 (1992).

[8]Id. at 102 (emphasis in original).

[9]29 C.F.R. § 1910.1200(a)(2) (1997).

[10]Industrial Truck Ass’n v. Henry, 125 F.3d 1305, 1312 (9th Cir. 1997) (citing 29 C.F.R. § 1910.1200(a)(2) (1997)).

[11]29 C.F.R. § 1910.1200(a)(2) (1997).

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