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Industrial Truck Ass'n v. Henry

ELR Citation: 28 ELR 20169
Nos. 95-56405, 125 F.3d 1305/(9th Cir., 09/29/1997)

The court holds that, as applied to industrial truck manufacturers and distributors, the Occupational Safety and Health Act (OSH Act) and the Occupational Safety and Health Administration's (OSHA's) hazard communication standard (HCS) preempt enforcement of the occupational warning requirements under California's Proposition 65 and state regulations not contained in the state's OSHA-approved plan. The court first holds that under the OSH Act, when OSHA promulgates a federal standard, that standard completely occupies the field within the "issue" of that regulation and preempts all state occupational safety and health laws relating to that issue, conflicting or not, unless they are included in the state plan. Thus, by including some occupational safety issues in a state plan, a state is not freed from the preemptive grasp of federal standards for occupational safety issues not within the plan. Next, the court holds that any portions of Proposition 65 and the state regulations not included as part of the state plan relate to the issue of the federal HCS and, therefore, are preempted. The broad language contained in the HCS' purpose section demonstrates that the occupational safety requirement of Proposition 65 and the state regulations operate squarely within the issue of the HCS. Proposition 65 and the state regulations are state laws that require both evaluating the potential hazards of chemicals and communicating information concerning hazards. And this definition of issue contains no limitation on whom a state may require to communicate information or to eliminate chemicals. Any legal requirement of a state regarding the evaluation of hazards and the communication of those hazards to employees is preempted. Here, the state seeks to impose hazardous chemical warning requirements using methods directly and comprehensively addressed by the HCS. Thus, the state regulations are preempted. And all supplementary regulations are preempted, whether they conflict or not. The court next holds that even if the state regulations did not fall directly within the issue of the HCS, they would still be preempted, because they "relate to" that issue. Two sets of regulations relate to the same issue when they both directly govern occupational safety and health, and compliance with the substantive requirements of one expressly satisfies the substantive requirements of the other. The court, therefore, reverses the lower court's decision.

Counsel for Plaintiffs
Gary E. Cross
Dunaway & Cross
1146 19th St. NW, Ste. 400, Washington DC 20036
(202) 862-9700

Counsel for Defendants
Dennis A. Ragen, Deputy Attorney General
Attorney General's Office
110 W. "A" St., Ste. 1100, San Diego CA 92186
(619) 645-2001

Before Farris and Beezer, JJ.