California Lab. Federation v. Occupational Safety & Health Stds. Bd., AFL-CIO

• Decision Date: 12 July 1990
• Docket Number: No. A048574,AFL-CIO,A048574
• Citation: 271 Cal.Rptr. 310,221 Cal.App.3d 1547
• Court: California Court of Appeals Court of Appeals
• Parties: , 1990 O.S.H.D. (CCH) P 29,071 CALIFORNIA LABOR FEDERATION,et al., Petitioners, v. CALIFORNIA OCCUPATIONAL SAFETY AND HEALTH STANDARDS BOARD, Respondent.

Page 310

271 Cal.Rptr. 310

221 Cal.App.3d 1547, 1990 O.S.H.D. (CCH) P 29,071

CALIFORNIA LABOR FEDERATION, AFL-CIO et al., Petitioners, v. CALIFORNIA OCCUPATIONAL SAFETY AND HEALTH STANDARDS BOARD, Respondent.

No. A048574.

Court of Appeal, First District, Division 2, California.

July 12, 1990.

Review Denied Oct. 18, 1990.

Stephen P. Berzon, Michael Rubin, Altshuler & Berzon, Charles P. Scully, II, Donald C. Carroll, Law Offices of Charles P. Scully, Inc., P.C., Ralph Santiago Abascal, California Rural Legal Assistance, Inc., Albert H. Meyerhoff, Natural Resources Defense Council, San Francisco, David B. Roe, Environmental Defense Fund, Oakland, Laurence Gold, Washington, D.C., for petitioners.

Charles A. Barrett, Janet K. Goldsmith, William E. Hvidsten, Stephen H. Goldberg, Kronick, Moskovitz, Tiedemann & Girard, Sacramento, for respondent.

I. Introduction

SMITH, Associate Justice.

In this case we consider whether respondent California Occupational Safety and Health Standards Board (the Board) has a duty under Proposition 97 (the State Occupational Safety and Health Plan Initiative) to include the warning and enforcement provisions of Proposition 65 (the Safe Drinking Water and Toxic Enforcement Act of 1986) in the state plan for occupational safety and health (the state plan). We conclude that the Board does have such a duty.

Petitioners ¹ ask this court to invoke its original jurisdiction and issue a writ of mandamus ordering the Board to include in the state plan the warning and enforcement provisions of Proposition 65. (Health & Saf.Code, § 25249.5 et seq.) ² They contend that the Board has a ministerial duty to include Proposition 65 in the state plan under Proposition 97 which, inter alia, amended Labor Code section 50.7, subdivision (a), to, in petitioners' view, require the Board to avoid federal preemption of state laws governing occupational safety and health by ensuring that the state plan is consistent with all such laws. Petitioners urge that if Proposition 65 is not included in the state plan, it may be preempted and rendered unenforceable in part by provisions of the federal Occupational Safety and Health Act. (29 U.S.C. § 651 et seq.) They filed a petition for rulemaking with the Board, seeking such incorporation, which was denied on July 27, 1989. Petitioners contend here that this court should exercise its original jurisdiction because this case raises important issues of statewide significance and does not involve the need for a factual hearing before a trial court.

II. The Statutory Framework

A. Proposition 65

On November 4, 1986, the voters approved Proposition 65, which provides in pertinent part: "No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10." ³ (§ 25249.6.) " 'Person in the course of doing business' " is defined to exclude an employer having fewer than 10 employees and public employers. (§ 25249.11, subd. (b).) Pursuant to section 25249.12, the Governor has designated the California Health and Welfare Agency (the Agency) as the lead agency to implement the provisions of Proposition 65. The Agency has promulgated regulations governing warnings under Proposition 65. (Cal.Code Regs., tit. 22, § 12601.)

B. Fed/OSHA

In 1970, Congress enacted the Occupational Safety and Health Act (Fed/OSHA), which provides for the adoption of minimum national health and safety standards. (29 U.S.C. § 651 et seq.) Fed/OSHA provides, however, that any state which desires to assume responsibility for development and enforcement of occupational safety and health standards with respect to which a federal standard has been promulgated may do so under certain conditions. Two prerequisites to such regulation are that the state law be "at least as effective" as the federal standard covering the same subject matter and that the state law be incorporated in a state plan submitted to and approved by the federal Secretary of Labor (the Secretary). (29 U.S.C. §§ 667(b), 667(c).) The Secretary is not required to approve such a plan unless in her judgment "standards, when applicable to products which are distributed or used in interstate commerce, are required by compelling local conditions and do not unduly burden interstate commerce." (29 U.S.C. § 667(c)(2).) The parties here agree that unless a state occupational safety and health law is incorporated in an approved state plan, it will be preempted to the extent it covers subject matter as to which there is a federal standard. (See 29 U.S.C. §§ 667(a), 667(b), 667(c); United Air Lines, Inc. v. Occupational Safety & Health Appeals Bd. (1982) 32 Cal.3d 762, 772, 187 Cal.Rptr. 387, 654 P.2d 157.)

C. Cal/OSHA and Proposition 97

In 1973, the Legislature enacted the California Occupational Safety and Health Act (Cal/OSHA). (Lab.Code, § 6300 et seq.) Section 107 of Cal/OSHA states in pertinent part: "The purpose of this act is to allow the State of California to assume responsibility for development and enforcement of occupational safety and health standards under a state plan pursuant to Section 18 [29 United States Code section 667] of the Federal Occupational Safety and Health Act of 1970 (Public Law 91-596) which was enacted December 29, 1970." (Stats.1973, ch. 993, § 107, pp. 1954-1955.) "It was in response to [29 United States Code] section 667 that the California Legislature enacted the California Occupational Safety and Health Act of 1973. ( [Lab.Code,] § 6300 et seq.)" (United Air Lines, Inc. v. Occupational Safety & Health Appeals Bd., supra, 32 Cal.3d 762, 772, 187 Cal.Rptr. 387, 654 P.2d 157.) The Department of Industrial Relations (DIR) is the state agency charged with administering the state plan. (Lab.Code, §§ 50.7, subd. (a); 6302.)

In February 1987, the Governor advised the Secretary of his intent to withdraw the state plan and to return exclusive control over the administration and enforcement of occupational safety and health law in California in the private sector to the federal government. Thereafter, the Governor reduced the amount of funds appropriated to DIR in the 1987 budget bill by $7 million for the announced purpose of terminating California's enforcement of its private sector responsibilities under Cal/OSHA. In October 1987, the Court of Appeal for the Third Appellate District held the Governor's action to be ineffective as an improper exercise of his item veto power. (Ixta v. Rinaldi (Oct. 26, 1987) C002805.) On January 21, 1988, the California Supreme Court granted a petition for review in that case. Following the approval of Proposition 97, the Supreme Court dismissed the cause as moot on March 23, 1989.

On November 8, 1988, the voters approved Proposition 97. This measure amended Labor Code section 50.7, subdivision (a), to read as follows: "The Department of Industrial Relations is the state agency designated to be responsible for administering the state plan for the development and enforcement of occupational safety and health standards relating to issues covered by corresponding standards promulgated under the federal Occupational Safety and Health Act of 1970 (Public Law 91-596.) The state plan shall be consistent with the provisions of state law governing occupational safety and health, including, but not limited to, Chapter 6 (commencing with Section 140) and Chapter 6.5 (commencing with Section 148) of Division 1, and Division 5 (commencing with Section 6300), of this code [the provisions added by Cal/OSHA]." (Italics added.) The preamble to Proposition 97 states in pertinent part: "It is the purpose of this Act to restore California control over private sector safety and health, which the state has provided for since 1913, and has administered since 1973 through Cal/OSHA. Pursuant to Article XIV, Section 4, of the California Constitution, ⁴ state jurisdiction over worker safety and health should not be limited, eliminated or otherwise restricted, unless absolutely required by the Federal Constitution." (Prop. 97, § 1, subd. (10).)

D. The Role of the Board

The Board is in DIR and consists of seven members appointed by the Governor. (Lab.Code, § 140.) Pursuant to Labor Code section 142.3, subdivision (a), the "board shall be the only agency in the state authorized to adopt occupational safety and health standards" and it "shall adopt standards at least as effective as the federal standards for all issues for which federal standards have been promulgated ... within six months of the effective date of the federal standards and which, when applicable to products which are distributed or used in interstate commerce, are required by compelling local conditions and do not unduly burden interstate commerce."

III. The Possibility of Federal Preemption

The possibility of federal preemption arises because in August 1987 the Hazard Communication Standard (HCS) under Fed/OSHA was amended to require employers to warn employees of potential exposure to certain hazardous materials in the work place. (29 C.F.R. § 1910.1200.) Since the HCS covers the general subject area of employee warnings for exposure to hazardous substances, Proposition 65 might be deemed preempted under 29 United States Code section 667 unless it is included as a part of the state plan. (Cf. United Steelworkers of America v. Auchter (3d Cir.1985) 763 F.2d 728, 733-734.)

IV. The Petition to the Board

On February 7, 1989, petitioners herein filed a petition for rulemaking with the Board. They requested that the Board "amend its existing regulations, or adopt such other regulations, and otherwise take all such action as is necessary to assure that the California State Plan for Occupational Safety and Health ('state OSHA plan') includes and is consistent with the 'clear and reasonable warning' requirement, and other pertinent...