Industrial Truck Ass'n, Inc. v. Henry

• Decision Date: 29 September 1997
• Docket Number: No. 95-56405,95-56405
• Citation: 125 F.3d 1305
• Parties: 28 Envtl. L. Rep. 20,169, 18 O.S.H. Cas. (BNA) 1033, 1997 O.S.H.D. (CCH) P 31,425, 97 Cal. Daily Op. Serv. 7709, 97 Daily Journal D.A.R. 12,376 INDUSTRIAL TRUCK ASSOCIATION, INCORPORATED, a District of Columbia corporation; Mitsubishi Caterpillar Forklift America Inc., a Delaware corporation, Plaintiffs-Appellants, v. Carol HENRY, Dr., Director of the Office of Environmental Health Hazard Assessment; Daniel E. Lungren, Attorney General, for the State of California, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1305

125 F.3d 1305

28 Envtl. L. Rep. 20,169, 18 O.S.H. Cas. (BNA) 1033,

1997 O.S.H.D. (CCH) P 31,425,

97 Cal. Daily Op. Serv. 7709,

97 Daily Journal D.A.R. 12,376

INDUSTRIAL TRUCK ASSOCIATION, INCORPORATED, a District of

Columbia corporation; Mitsubishi Caterpillar

Forklift America Inc., a Delaware

corporation, Plaintiffs-Appellants, v. Carol HENRY, Dr., Director of the Office of Environmental

Health Hazard Assessment; Daniel E. Lungren,

Attorney General, for the State of

California, Defendants-Appellees.

No. 95-56405.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Dec. 11, 1996.

Decided Sept. 29, 1997.

Gary E. Cross, Dunaway & Cross, Washington, DC, for plaintiffs-appellants.

Dennis A. Ragen, Deputy Attorney General, San Diego, California, for defendants-appellees.

Appeal from the United States District Court for the Southern District of California. John S. Rhoades, Sr., District Judge, Presiding. D.C. No. CV-94-01738-JSR.

Before: FARRIS, BEEZER and TASHIMA, Circuit Judges.

TASHIMA, Circuit Judge:

This case presents a narrow but complex question of preemption. California has promulgated occupational safety regulations as part of its implementation of Proposition 65, the Safe Drinking Water and Toxic Enforcement Act, Cal. Health & Safety Code, §§ 25249.5-25249.13 ("Proposition 65"). We must decide whether California may enforce these regulations against manufacturers of industrial trucks under the authority of that portion of the state regulations which the state did not incorporate into the state plan it submitted to the federal Occupational Health and Safety Administration ("OSHA"). We hold that the parts of the state regulations not submitted to OSHA, insofar as they apply to industrial trucks, are preempted under the Occupational Safety and Heath Act of 1970, 29 U.S.C. §§ 651-678, and by OSHA's Hazard Communication Standard, 29 C.F.R. § 1910.1200.

I. BACKGROUND

A. The Hazard Communication Standard and California's State Plan.

The Occupational Safety and Health Act authorizes the Secretary of Labor to promulgate federal occupational safety and health standards. 29 U.S.C. § 655. ¹ Pursuant to this authority, OSHA promulgated the Hazard Communication Standard to protect workers from hazardous chemicals in the workplace. The Hazard Communication Standard applies to all sectors of the economy. It establishes rules for both the identification and evaluation of hazardous chemicals. 29 C.F.R. § 1910.1200(d). It also seeks to inform and educate employees about these chemicals by requiring employers to conduct employee training and to disseminate information in the workplace. See 29 C.F.R. § 1910.1200(b), (e)-(h).

Although the Occupational Safety and Health Act authorizes OSHA to promulgate uniform federal standards like the Hazard Communication Standard, it also permits states to assume and maintain regulatory responsibility for areas in which OSHA has promulgated a federal standard. To do so, a state must submit to OSHA a "state plan" with proposed state standards. 29 U.S.C. § 667(b). If the state plan is approved by OSHA, the standards in the state plan displace applicable federal standards. Id. The Occupational Safety and Health Act and the regulations promulgated thereunder provide for implementation, oversight, and modification of these state plans. See 29 U.S.C. § 667(c)-(h); 29 C.F.R. §§ 1902, 1952.1-1952.11, 1953-1956. Currently, over 20 states and territories, including California, have approved plans. See 29 C.F.R. § 1952.

California's state plan (the "State Plan") was first approved by OSHA in 1973 and has since been amended and modified several times with OSHA's approval. See 29 C.F.R. § 1952.175. The State Plan is administered by the California Department of Industrial Relations, 29 C.F.R. § 1952.175(b); Cal. Lab.Code §§ 50.7, 6302(a), and it is required to make the State Plan consistent with state laws governing occupational safety and health. Cal. Lab.Code § 50.7. Occupational safety and health standards in the State Plan are promulgated by the California Occupational Safety and Health Standards Board (Cal-OSH Standards Board), an agency within the Department of Industrial Relations. Id. §§ 140, 142.3.

B. Proposition 65.

In 1986, California voters approved Proposition 65. It requires the State to publish and maintain a list of chemicals known to cause cancer, birth defects or other reproductive harm. Cal. Health & Safety Code § 25249.8. It also prohibits any person doing business in the State from intentionally exposing individuals to these chemicals without a clear and reasonable warning prior to exposure. Id. § 25249.6. Civil actions enforcing Proposition 65 may be initiated by the California Attorney General, district attorneys, city attorneys, or by citizen suits. Id. § 25249.7.

California's Office of Environmental Health Hazard Assessment ("OEHHA") promulgated regulations that provide the specific warning methods required by Proposition 65. Cal.Code Regs., tit. 22, §§ 12000 et. seq. ("OEHHA Regs."). ² An "occupational exposure," which is an exposure "in the workplace of the employer causing the exposure to any employee," requires either warning labels attached to products or warning signs in the workplace. Id. § 12601(c). A third acceptable form of warning is "a warning to the exposed employee about the chemical in question which fully complies with all information, training, and labeling requirements" of the federal Hazard Communication Standard or California's Hazard Communication Standard. Id. § 12601(c)(1)(C). The OEHHA Regs. went into effect in 1988 and 1989.

In 1990, several labor and environmental groups sought a writ of mandamus from the California Court of Appeal ordering the Cal-OSH Standards Board to incorporate the provisions of Proposition 65 into the State Plan and to submit the amended State Plan to OSHA for approval. California Labor Fed'n v. California Occupational Safety and Health Standards Bd., 221 Cal.App.3d 1547, 271 Cal.Rptr. 310 (1990). At the time, the State Plan provided for "warnings in accordance with the HCS but [made] no reference to Proposition 65." Id. at 1558, 271 Cal.Rptr. at 317. The labor and environmental groups were concerned that if Proposition 65 were not incorporated into the State Plan, Proposition 65's provisions relating to occupational safety and health would be preempted by the Hazard Communication Standard. Id. at 1550, 1553-54, 271 Cal.Rptr. at 312, 314. ³

The Court of Appeal granted the writ. Id. at 1556-59, 271 Cal.Rptr. at 316-18. It held that Proposition 65 governed occupational safety and health. The Court of Appeal further held that the State Plan's current incorporation of the Hazard Communication Standard did not make the inclusion of Proposition 65 superfluous because the two regulatory schemes were not identical. Id. at 1558, 271 Cal.Rptr. at 317. The court directed the Cal-OSH Standards Board to include Proposition 65's worker safety provisions in the State Plan. Id. at 1559, 271 Cal.Rptr. at 318.

To comply with the state court's order, the Cal-OSH Standards Board issued regulations seeking to incorporate Proposition 65 and the OEHHA Regs. into the State Plan. Cal.Code Regs., tit. 8, § 5194(b)(6) ("Title 8 Regs."). This addition to the State Plan, went into effect on December 17, 1991. On January 30, 1992, California submitted the Proposition 65 amendments to the State Plan to OSHA. ⁴ In September, 1996, OSHA requested public comment on whether it should approve California's modified State Plan. Supplement to California State Plan; Request for Public Comment, 61 Fed.Reg. 48,443 (1996). Recently, OSHA approved the Proposition 65 modifications to the State Plan, subject to certain conditions. Approval; California State Standard on Hazard Communication Incorporating Proposition 65, 62 Fed.Reg. 31,159 (Jun. 20, 1997) ("Approval Decision "). Thus, California currently has on its books two sets of regulations dealing with Proposition 65 warnings: the Title 8 Regs. in the State Plan and the OEHHA Regs.

C. District Court Proceedings.

Plaintiffs are Mitsubishi Caterpillar Forklift America Inc., a manufacturer and distributor of industrial trucks, and Industrial Truck Association, Incorporated, a trade association of industrial truck manufacturers. Industrial trucks, commonly known as forklifts, are designed solely for use in the workplace. They emit diesel fuel exhaust that contains components on the Proposition 65 hazard list. In this action, plaintiffs alleged that enforcement of the warning provisions of Proposition 65 and the OEHHA Regs. against industrial truck manufacturers was preempted under the Occupational Safety and Health Act by the Hazard Communication Standard. They sought declaratory and injunctive relief against defendants the Attorney General of California and the Director of OEHHA (collectively the "State").

Plaintiffs contended that the Title 8 Regs. did not include all of the occupational provisions of the OEHHA Regs. As a result, according to plaintiffs, although manufacturers and distributors of forklifts are not subject to regulation under the State Plan, they may be subject to lawsuits or other enforcement proceedings under the OEHHA Regs. Plaintiffs argued specifically that the Title 8 Regs. in the State Plan expressly apply Proposition 65's warning requirements only to "employers" of California workers. See Cal.Code Regs., tit. 8, § 5194(b)(6)(A) (applying Proposition 65's warning provisions to "an employer which is a person in the course of doing business within the meaning of Health and Safety Code Section 25249.11(a) and (b)"); see also id. § 5194(b)(6)(B), (C) (referring to any "employee" subject to Proposition 65); id. § 5194(b)(1) (distinguishing between manufacturers and employers). Thus, plaintiffs asserted that the State Plan does not apply warning requirements to manufacturers or distributors of industrial trucks beyond imposing an obligation to warn their...