The opinion of the court was delivered by: Paul L. Friedman, District Judge.
Plaintiffs brought this lawsuit to challenge the approval by the
Occupational Safety and Health Administration ("OSHA") of an amendment to
the California state plan for the development and enforcement of
occupational safety and health standards and to challenge OSHA's policy
of letting California enforce the amendment before receiving approval.
Upon consideration of the parties' cross-motions for summary judgment, the
Court concludes that plaintiffs' challenge to OSHA's pre-approval
enforcement policy is moot and therefore is no longer properly before the
Court. With regard to plaintiffs' challenge to the approval of the
amendment, the Court finds that OSHA's actions were not arbitrary,
capricious or contrary to law. It therefore will grant summary judgment
in favor of defendants.
Under the Occupational Safety and Health Act ("OSHAct"), states are
generally preempted from regulating any health or safety issue that is
governed by a federal OSHA requirement. The sole means by which a state
may regulate such issues is for the state to submit a "state plan" to
OSHA and for the plan to receive OSHA approval. Under the OSHAct:
Any State which, at any time, desires to assume
responsibility for development and enforcement therein
of the occupational safety and health standards
relating to any occupational safety or health issue
with respect to which a Federal standard has been
promulgated under section 655 of this title shall
submit a State plan for the development of such
standards and their enforcement.
29 U.S.C. § 667 (b). Upon approval by OSHA, the state plan
"pre-empt[s] federal regulation entirely." Gade v. National Solid Wastes
Management Ass'n, 505 U.S. 88, 97, 112 S.Ct. 2374, 120 L.Ed.2d 73
Criteria for the approval of state plans, and any amendments thereto,
are found in Section 18(c) of the OSHAct. See 29 U.S.C. § 667 (c).
of relevance in this case is Section 18(c)(2), which provides that no
plan or amendment can be approved unless it is "at least as effective" in
protecting safety and health as the statutes and enforcement regimen of
OSHA itself. 29 U.S.C. § 667 (c)(2). In addition, if the plan or
amendment applies to products that "are distributed or used in interstate
commerce," state standards that differ from federal standards must be
"required by compelling local conditions" and may not "unduly burden
interstate commerce." Id.
OSHA initially approved California's state plan in 1973. In 1986,
California voters passed Proposition 65, entitled the Safe Drinking Water
and Toxic Enforcement Act, requiring new state regulation of toxic
chemicals. Among other things, Proposition 65 required that any person
doing business in California must give a "clear and reasonable warning"
before exposing any individual to "a chemical known to cause cancer."
CAL. HEALTH & SAFETY CODE § 25249.6 (West 1999). The provisions of
Proposition 65 could be enforced through civil actions brought by the
California attorney general, district attorneys, and city attorneys, as
well as by private citizens. Id. § 25249.7.
Proposition 65 took effect in February 1988, but initially was not made
part of California's state plan. In 1990, however, the California Court of
Appeals held that the provisions of Proposition 65 must be incorporated
into California's state plan. See California Labor Federation, AFL-CIO
v. Occupational Safety & Health Standards Bd., 221 Cal.App.3d 1547,
271 Cal.Rptr. 310 (1990). California then drafted an amendment to its
state plan incorporating the provisions of Proposition 65 and submitted
the amendment to OSHA for approval. Pursuant to long-standing OSHA
policy, California was allowed to enforce the modifications to its state
prior to OSHA's review and approval of the amendment.
After over four years of discourse between OSHA and the state regarding
the proposal, OSHA sought public comment regarding the amendment's
approval in late 1996. After receiving and reviewing over 200 public
comments, OSHA approved the amendment to the plan in a lengthy decision
issued on June 6, 1997 — with three conditions: (1) that the
existing methods of providing warnings under federal or state hazard
communication provisions could be used to provide any necessary warnings
under Proposition 65; (2) that the state would take action to ensure that
court decisions brought by private citizens would not result in a
standard that is less effective than the federal standard; and (3) that
the standard would not be enforced against out-of-state manufacturers.
See 62 Fed.Reg. 31,180 (1997). Plaintiffs immediately filed this lawsuit
challenging OSHA's decision.
Plaintiffs have moved for summary judgment on three grounds, arguing
that OSHA acted unlawfully because: (1) its policy of allowing a state to
enforce modifications before approval was not adopted properly under the
Administrative Procedure Act and is contrary to the OSHAct; (2) OSHA
incorrectly found that the Proposition 65 amendment met the criteria of
the OSHAct; and (3) the Proposition 65 amendment improperly regulates
maritime employers in violation of the Admiralty Clause of the United
States Constitution. Defendants have filed a cross-motion for summary
judgment. The Attorney General of California and the California Division
of Occupational Health intervened as defendants to contest plaintiff's
position. The Court will address each argument in turn.
A. Enforcement Before Approval
Plaintiffs first argue that California should not have been permitted
to enforce the amendment to the plan prior to OSHA approval. In
particular, plaintiffs contend that OSHA's policy of allowing pre-approval
enforcement is a legislative rule that should have been promulgated using
notice and comment procedures. Plaintiffs also contend that the policy is
contrary to the clear and unambiguous language of the OSHAct. The Court
will not reach either of ...