Petition for Writ of Certiorari — Emerson Electric Co., et al., Petitioners v. Superior Court of California, Orange County, et al.

APPENDIX

APPENDIX A

IN THE SUPREME COURT OF CALIFORNIA

_________________

SOLUS INDUSTRIAL

INNOVATIONS, LLC, et al.,

Petitioners,

v.

THE SUPERIOR COURT OF

ORANGE COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

_________________

S222314

_________________

Filed 2/8/2018

_________________

The Orange County District Attorney brought an

action for civil penalties under this state’s unfair

competition law (UCL; Bus. & Prof. Code, § 17200)

and fair advertising law (FAL; id., § 17500) against an

employer. The action alleged the employer violated

workplace safety standards established by the state

occupational safety and health law (Cal/OSHA; Lab.

(1a)

2a

Code, § 6300 et seq.) and attendant regulations. The

employer contended, and the Court of Appeal

concluded, that the district attorney’s action was

preempted by the federal Occupational Safety and

Health Act of 1970 (federal OSH Act; 29 U.S.C. § 651

et seq.).

For the reasons set forth below, we conclude that

the federal act does not preempt unfair competition

and consumer protection claims based on workplace

safety and health violations when, as in California,

there is a state plan approved by the federal Secretary

of Labor. The district attorney’s use of UCL and FAL

causes of action does not encroach on a field fully

occupied by federal law, nor does it stand as an

obstacle to the accomplishment of the federal

objective of ensuring a nationwide minimum

standard of workplace protection. In addition, the

federal act’s structure and language do not reflect a

clear purpose of Congress to preempt such claims.

Therefore, we reverse the judgment of the Court of

Appeal.

I. Background

A. Factual and procedural history

Our statement of facts and procedure is based

largely on the opinion of the Court of Appeal.

Solus Industrial Innovations, LLC (Solus)

manufactures plastics at its Orange County facility.

In 2007, it installed at the facility an electric water

heater that was designed for residential use. In

March 2009, the water heater exploded, killing two

employees.

3a

The Division of Occupational Safety and Health1

investigated and “determined the explosion had been

caused by a failed safety valve and the lack of ‘any

other suitable safety features on the heater’ due to

‘manipulation and misuse.’ ” In an administrative

proceeding, the agency charged Solus with five

violations of state occupational safety and health

regulations. (Cal. Code Regs., tit. 8, § 467, subd. (a)

[failure to provide a proper safety valve]; id., § 3328,

subds. (a) [permitting unsafe operation of machinery

and equipment], (b) [improper maintenance of

machinery and equipment], (f) [failing to use good

engineering practices], (h) [permitting unqualified

and untrained personnel to operate and maintain

machinery and equipment].) The Division also cited

Solus with a willful violation for failing to maintain

the water heater in a safe condition.

In addition, because two employees had died and

there was evidence of violations of law, the Division

forwarded the investigation results to the District

Attorney of Orange County. (See Lab. Code, § 6315,

subd. (g).) In March 2012, the district attorney filed

criminal charges against Solus’s plant manager and

its maintenance supervisor for felony violations of

Labor Code section 6425, subdivision (a).

The district attorney also filed the present civil

action against Solus. The complaint alleged four

causes of action, “all based on the same worker health

1 The Division of Occupational Safety and Health (sometimes

hereafter Division) functions within the state Department of

Industrial Relations. Sometimes referred to as Cal/OSHA, the

Division holds general authority to enforce the state

occupational safety and health law. (See p. 9, post.)

4a

and safety standards placed at issue in the

administrative proceedings.” Only two of the causes

of action are at issue here. One “allege[d] that Solus’s

failure to comply with workplace safety standards

amount[ed] to an unlawful, unfair and fraudulent

business practice under Business and Professions

Code section 17200, and the district attorney

request[ed] imposition of civil penalties as a

consequence of that practice, in the amount of up to

$2,500 per day, per employee, for the period from

November 29, 2007, through March 19, 2009.” The

second was a claim that Solus “made numerous false

and misleading representations concerning its

commitment to workplace safety and its compliance

with all applicable workplace safety standards, and

as a result of those false and misleading statements,

Solus was allegedly able to retain employees and

customers in violation of Business and Professions

Code section 17500.” The district attorney requested

imposition of civil penalties in the same amount for

the same period.2

2 The other two causes of action were for:

(1) recovery of civil

penalties under Labor Code section 6428 for “serious violations”

of workplace safety standards and (2) recovery of civil penalties

under Labor Code section 6429 for “willful violation” of

workplace safety standards. The trial court sustained Solus’s

demurrer without leave to amend with respect to these claims.

The Court of Appeal summarily denied the district attorney’s

petition for writ of mandate challenging this order. This court

granted review and transferred the matter back to the Court of

Appeal. In a separate opinion the Court of Appeal affirmed,

agreeing with the trial court that the district attorney lacked

standing to bring those two claims. (People v. Superior Court

(Solus Industrial Innovations, LLC) (2014) 224 Cal.App.4th 33.)

5a

Solus demurred on the ground that the two causes

of action were preempted by the federal OSH Act. (29

U.S.C. § 651 et seq.) The trial court overruled the

demurrer. Solus challenged the order and the Court

of Appeal summarily denied Solus’s petition for writ

of mandate. This court granted the petition for review

filed by the district attorney and transferred the

matter back to the Court of Appeal with directions to

issue an order to show cause.

The Court of Appeal issued its order to show cause

and concluded that the federal OSH Act preempted

the district attorney’s UCL and FAL claims. Its

conclusion was based in part on a misapprehension

concerning the date that unfair competition penalty

provisions were enacted compared with the date the

federal Secretary of Labor approved California’s

occupational safety and health plan. This court

granted review and transferred the matter back to the

Court of Appeal for reconsideration in light of former

section 3370.1 of the Civil Code, a provision enacted

in 1972. As the Court of Appeal acknowledged in its

second opinion, this statute, which provided penalties

for unfair competition, “was in effect when

California’s plan was approved” by the federal

Secretary of Labor. The Court of Appeal nonetheless

concluded that the UCL and FAL claims were

preempted by the federal statute. In its view, federal

law preempted any state occupational safety and

health standard or method of enforcing such a

standard that did not appear in the California

occupational safety and health plan submitted to and

approved by the federal Secretary of Labor.

6a

This court granted the district attorney’s petition

for review.

B. Relevant federal and state laws

1. Federal law

As explained below, the federal OSH Act (29

U.S.C. § 651 et seq.) provides that the federal

Secretary of Labor shall adopt standards for

occupational safety and health, but federal law does

not preempt state authority when (1) there is no

federal standard or (2) there is a state plan for

occupational safety and health that has been

approved at the federal level.

It is settled that the purpose of the 1970 federal

enactment was to supply a nationwide floor of

protection for workers. (29 U.S.C. § 651(b) [Congress’s

intent was “to assure so far as possible every working

man and woman in the Nation safe and healthful

working conditions”]; United Air Lines, Inc. v.

Occupational Safety & Health Appeals Bd. (1982) 32

Cal.3d 762, 772 (United Air Lines) [the federal act

intended “to address the problem of uneven and

inadequate state protection of employee health and

safety” and “establish a nationwide ‘floor’ of

minimally necessary safeguards”].)

The federal OSH Act grants the federal

Department of Labor the authority to provide and

enforce mandatory national standards. (29 U.S.C.

§ 651(b)(3); see also id., § 655 [calling for promulgation

of standards].) The federal Secretary of Labor has

delegated certain authority to the federal

Occupational Safety and Health Administration

(hereafter sometimes federal OSHA) to adopt

7a

standards.

(Gade v. National Solid Wastes

Management Ass’n (1992) 505 U.S. 88, 92 (Gade)

(plur. opn. of O’Connor, J.).) If the Secretary of Labor

has not promulgated a federal standard with respect

to an occupational safety or health issue, states may

supply their own standards. (29 U.S.C. § 667(a)

[“Nothing in this chapter shall prevent any State

agency or court from asserting jurisdiction under

State law over any occupational safety or health issue

with respect to which no standard is in effect under

section 655 of this title”].)3

3 Solus has identified several standards that it contends apply

to the facts of this case. (29 C.F.R. § 1910, subpts. H, M (2017);

id., § 1910.147 (2017).) Section 1910, subpart H, entitled

“Hazardous Materials,” concerns, in part, the handling, storage,

and use of compressed gas cylinders and tanks (29 C.F.R.

§§ 1910.101-1910.121 (2017)), but these provisions do not appear

to have any application to the allegations of the complaint, which

assert that Solus removed a water heater’s safety features to

force it to operate beyond its capacity. Nor does section 1910,

subpart M, entitled “Compressed Gas and Compressed Air

Equipment,” which applies to “compressed air receivers, and

other equipment used in providing and utilizing compressed air

for performing operations such as cleaning, drilling, hoisting,

and chipping” (29 C.F.R. § 1910.169(a) (2017)), appear to apply

to these allegations. Finally, the provisions of 29 Code of Federal

Regulations section 1910.147 (2017) set forth steps that must be

taken to control hazardous energy during maintenance of a

machine, but it appears from the complaint that the explosion

occurred as workers arrived to address a problem, before any

maintenance procedures were undertaken.

Solus also cites federal OSHA’s general duty clause, which

states that an employer “(1) shall furnish . . . employment and a

place of employment which are free from recognized hazards

that are causing or are likely to cause death or serious physical

harm to his employees.” (29 U.S.C. § 654(a).) However, the

8a

Moreover, even when there are federal standards

on an issue relating to occupational safety and health,

a state may assume responsibility for developing and

enforcing state standards on such issues by

developing and submitting to the Secretary of Labor

a plan to “preempt” federal standards. In a provision

entitled “Submission of State plan for development

and enforcement of State standards to preempt

applicable Federal standards,” the federal OSH Act

states: “Any State which, at any time, desires to

assume responsibility for development and

enforcement therein of 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).)

The Secretary of Labor is required to approve a

state’s plan or any modification of its plan if, in the

Secretary’s judgment, a number of conditions are met.

(29 U.S.C. § 667(c).) First, approval is conditioned on

the plan designating a state agency or agencies to

administer the plan throughout the state. (Id.,

§ 667(c)(1).) Second, approval is conditioned on the

standards to which 29 United States Code section 667,

subdivision (a) refers are those promulgated by the federal

Secretary of Labor under 29 United States Code section 655; the

general duty clause is not such a “standard.”

Although we are skeptical that the cited standards apply

here, we note that the case has been litigated based on the view

that a federal standard applies to the allegations, and we will

assume without deciding that there is a federal standard

relevant to the claims.

9a

plan providing standards and enforcement at least as

effective as parallel federal standards. (Id., § 667(c)(2)

[the state plan “provides for the development and

enforcement of safety and health standards relating to

one or more safety or health issues, which standards

(and the enforcement of which standards) are or will

be at least as effective in providing safe and healthful

employment and places of employment as the

standards promulgated under section 655 which

relate to the same issues, and which 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”].) Other conditions include that the state

plan contain satisfactory assurances that the

designated administrative agency or agencies “have or

will have the legal authority and qualified personnel

necessary for . . . enforcement,” and that the state will

devote adequate funds to administration and

enforcement. (Id., § 667(c)(4) & (5).) The Secretary

must give adequate notice and an opportunity for a

hearing before rejecting a state plan. (Id., § 667(d).)

The Secretary of Labor retains some ongoing

authority over state plans.

For example, the

Secretary must “make a continuing evaluation of the

manner in which each State having a plan . . . is

carrying out such plan.” (29 U.S.C. § 667(f).) If the

Secretary finds, after “due notice and opportunity for

a hearing,” that the state has failed to “comply

substantially” with its plan, the Secretary “shall

notify the State agency of [the] withdrawal of

approval of such plan . . . .” (Ibid.; see also id., subd.

(g) [judicial review of withdrawal of approval].) A

10a

federal regulation adds that states must submit

changes to their plans to the Secretary of Labor for

approval. (29 C.F.R. § 1953.4(d) (2017).)

Finally, the federal OSH Act contains a broad

savings clause: “Nothing in this chapter shall be

construed to supersede or in any manner affect any

workmen’s compensation law or to enlarge or

diminish or affect in any other manner the common

law or statutory rights, duties, or liabilities of

employers and employees under any law with respect

to injuries, diseases, or death of employees arising out

of, or in the course of, employment” (29 U.S.C.

§ 653(b)(4).)

2. Cal/OSHA

Long before the federal enactment, California

regulated occupational safety and health. (United Air

Lines, supra, 32 Cal.3d at p. 766.) As we have

recounted: “ ‘In 1913 . . . the Legislature enacted a . . .

bill creating the Industrial Accident Commission, and

vested that body, inter alia, with broad authority to

adopt regulations relating to the safety and welfare of

employees.’ ” (Ibid.) That “ ‘broad authority to

regulate safety in places of employment’ ” was

transferred to another body in 1945 and then, “[i]n

1973, as part of a comprehensive revision of

California’s occupational health and safety statutes in

response to the Federal Occupational Safety and

Health Act of 1970, the [regulatory board] was

reconstituted . . . and the division of Occupational

Safety and Health was designated as the

administrative entity.” (Ibid.)

11a

The 1973 legislation largely mirrored earlier state

enactments. (Lab. Code, § 6300 et seq.; United Air

Lines, supra, 32 Cal.3d at p. 767.) The declared

purpose was to permit California to “assume

responsibility for development and enforcement of

occupational safety and health standards under a

state plan pursuant to [the federal enactment].”

(Stats. 1973, ch. 993, § 107, pp. 1954-1955; see United

Air Lines, supra, 32 Cal.3d at p. 766; California Lab.

Federation v. Occupational Safety & Health Stds. Bd.

(1990) 221 Cal.App.3d 1547, 1552 (Cal. Labor Fed.).)

The Department of Industrial Relations

(Department) was assigned the overall task of

administering the state plan for “development and

enforcement of occupational safety and health

standards” relating to issues covered by the federal

OSH Act standards (Lab. Code, § 50.7, subd. (a); see

id., § 6302), and the state plan was to be “consistent

with the provisions of state law governing

occupational safety and health, including, but not

limited to [Cal/OSHA legislation].” (Id., § 50.7, subd.

(a).) Within the Department, the Occupational Safety

and Health Standards Board (Board) has authority to

adopt, amend, or repeal standards (id., § 142.3), and

the Board’s authority to adopt occupational safety and

health standards is exclusive. (Id., § 142.3, subd.

(a)(1).) Also within the Department is the Division of

Occupational Safety and Health. The Division is

required to study federal standards, propose

modifications of California standards to the Board,

evaluate proposed standards for the Board, and, on

issues not covered by federal standards, “maintain

surveillance, determine the necessity for standards,

12a

[and] develop and present proposed standards to the

board.” (Id., § 147.1, subd. (c); see id., subds. (a), (b),

(d).) The Division also holds general enforcement

powers over any “place of employment.” (Id., § 6307,

see also id., §§ 142, 6308.)

The state law includes various enforcement and

civil and criminal penalty provisions. (See Lab. Code,

§§ 6317 [citations, abatement, civil penalties], 6425

[criminal penalties for violations causing death or

serious impairment], 6428 [civil penalties for serious

violations], 6429 [civil penalties for willful or repeated

violations]; 6430 [civil penalties for failure to

correction violations].) State regulations include

those governing water heaters.

The Division’s authority over “places of

employment” is not exclusive, and does not include

places “where the health and safety jurisdiction is

vested by law in, and actively exercised by, any state

or federal agency other than the division.” (Lab. Code,

§ 6303, subd. (a); see also United Air Lines, supra, 32

Cal.3d at pp. 767, 770-771 [Lab. Code, § 6303, subd.

(a) divests the division of jurisdiction solely when

another agency is under a mandate to provide for

worker protection].)

Cal/OSHA provisions also

recognize some concurrent local entity jurisdiction.

(See Lab. Code, § 6316 [except as otherwise provided

in Cal/OSHA, the governing bodies of local

government entities generally are not deprived of

“any power or jurisdiction over or relative to any place

of employment”]; see id., § 144, subds. (a) [authority

of agencies other than the Division to “assist in the

administration or enforcement” of standards “shall be

contained in a written agreement with the

13a

Department . . . .”], (e) [no limitation on local agency

authority “as to any matter other than the

enforcement of occupational safety and health

standards”]; Coyle v. Alland & Company, Inc. (1958)

158 Cal.App.2d 664, 669-670.) Consistent with this

concurrent jurisdiction, the Division’s Bureau of

Investigations

ordinarily

must

forward

its

investigative results to local prosecutors in cases of

serious injury or death. (Lab. Code, § 6315, subds. (g),

(i).)

The Department submitted a Cal/OSHA plan to

the federal Secretary of Labor, and it was approved in

May 1973. (29 C.F.R. § 1952.7(a) (2017).) 4 Descriptions of the California plan and amendments that

4 The

federal regulation provides: “(a) The California State

plan received initial approval on May 1, 1973. [¶] (b) [federal]

OSHA entered into an operational status agreement with

California. [¶] (c) The plan covers all private-sector employers

and employees, with several notable exceptions, as well as State

and Local government employers and employees, within the

State. For current information on these exceptions and for

additional details about the plan, please visit [a federal

Department of Labor website].” (29 C.F.R. § 1952.7 (2017).)

The referenced website contains a very brief summary of the

plan, noting that the Division “implements the California State

Plan’s enforcement . . . .” (U.S. Dept. of Labor, OSHA Plans

<http://www.osha.gov/dcsp/osp/stateprogs/california.html> [as

of February 8, 2018].)

The referenced “operational status agreement” notes that

the Division “is designated as the state agency responsible for

administering the State Plan,” that, with certain limited

exceptions, “concurrent federal enforcement authority was

suspended with regard to federal occupational safety and health

standards in issues covered by the State Plan,” and that

“concurrent federal enforcement authority would not be initiated

with regard to any federal occupational safety and health

14a

formerly appeared in federal regulations (see 29

C.F.R. former § 1952.170 (1999)5 have been removed

by federal OSHA in an effort at streamlining. (Text

removed by 80 Fed.Reg. 78977 (Dec. 18, 2015)

(approving proposal of federal OSHA Aug. 18, 2015);

80 Fed.Reg. 49897 (Aug. 18, 2015) [“This document

. . . amends OSHA regulations to remove the detailed

descriptions of State plan coverage, purely historical

data, and other unnecessarily codified information

. . . . The purpose of these revisions is to eliminate the

unnecessary codification of material in the Code of

Federal Regulations . . . .”].) There appears to be no

dispute, however, that the Cal/OSHA standards, the

violation of which was the basis for the district

attorney’s UCL and FAL claims, were part of the

approved California plan, nor does there appear to be

any dispute that use of UCL and FAL claims by local

prosecutors pursuing civil actions was not mentioned

in the plan’s enforcement provisions. (See, e.g., Cal.

Code Regs., tit. 8, § 344.50 [Division of Occupational

Safety and Health compliance personnel conduct civil

inspections and enforcement actions but lack

authority to initiate criminal proceedings].)

standards in issues covered by the State Plan.” (82 Fed.Reg.

25631 (June 2, 2017).)

5 The former provision referred to enforcement by the Division,

and noted that then-existing state safety and health standards

would be “continued unless amended by a State occupational

safety and health standards board to be created.” (29 C.F.R.

former § 1952.170(a) (1999).) It observed that the state plan “set

out goals” and acknowledged that certain enabling legislation

was still to be enacted by the state Legislature. (Id., former

§ 1952.170(e) (1999).)

15a

Cal/OSHA standards have undergone revisions

that were submitted for and secured federal approval.

For example, in response to a state court action by

labor representatives, the state Board amended the

state standards to reflect the requirements of the

state’s then-newly adopted Safe Drinking Water and

Toxic Enforcement Act of 1986. (Health & Saf. Code

§ 25249.5 et seq.; see Cal. Labor Federation, supra,

221 Cal.App.3d at pp. 1554, 1557-1559; see Dept. of

Labor, Supplement to California State Plan;

Approval, 62 Fed.Reg. 31159 (June 6, 1997).)

In 1987, the Governor of California attempted to

reassign exclusive control over occupational safety

and health matters to the federal government. He

notified the federal Secretary of Labor of his intent

and reduced the Department’s budget. (See Cal.

Labor Federation, supra, 221 Cal.App.3d at p. 1552.)

The voters, however, in 1988 approved a proposition

that defeated the Governor’s plan and affirmed the

central role of state law in these matters. (Lab. Code,

§ 50.7, subd. (a), enacted by Prop. 97, as approved by

voters, Gen. Elec. (Nov. 8, 1988).) The proposition’s

preamble stated the enactment’s goal: “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, state

jurisdiction over worker safety and health should not

be limited, eliminated or otherwise restricted, unless

absolutely required by the federal Constitution.”

(Ballot Pamp. Gen. Elec. (Nov. 8, 1988) text of Prop.

97, p. 75.)

16a

C. General preemption principles

“ ‘The supremacy clause of the United States

Constitution establishes a constitutional choice-oflaw rule, makes federal law paramount, and vests

Congress with the power to preempt state law.’

[Citations.]

Similarly, federal agencies, acting

pursuant to authorization from Congress, can issue

regulations that override state requirements.

[Citations.] Preemption is foremost a question of

congressional intent: did Congress, expressly or

implicitly, seek to displace state law?” (Quesada v.

Herb Thyme Farms, Inc. (2015) 62 Cal.4th 298, 307308 (Quesada).)

We “conduct[] the search for congressional intent

through the lens of a presumption against

preemption. [Citations.] The presumption is founded

on ‘respect for the States as “independent sovereigns

in our federal system’ ”; that respect requires courts

‘to assume that “Congress does not cavalierly preempt state-law causes of action.’ ” [Citation.] The

strength of the presumption is heightened in areas

where the subject matter has been the long-standing

subject of state regulation in the first instance; where

federal law touches ‘a field that “ ‘has been

traditionally occupied by the States,’ ”’ the party

seeking to show preemption ‘bear[s] the considerable

burden of overcoming “the starting presumption that

Congress does not intend to supplant state law.”’”

(Quesada, supra, 62 Cal.4th at pp. 312-313, see also

id. at p. 315 [Rice v. Santa Fe Elevator Corp. (1947)

331 U.S. 218, 230, which first recognized the

assumption that the historic police powers of the state

are not superseded, remains good law].)

The

17a

presumption applies to the scope as well as the

existence of preemption. (Olszewski v. Scripps Health

(2003) 30 Cal.4th 798, 815 (Olszewski); see also Brown

v. Mortensen (2011) 51 Cal.4th 1052, 1064.)

“We have identified several species of preemption.

Congress may expressly preempt state law through

an explicit preemption clause, or courts may imply

preemption under the field, conflict, or obstacle

preemption doctrines.” (Quesada, supra, 62 Cal.4th

at p. 308.) Implied preemption, for its part, may be

found “(i) when it is clear that Congress intended, by

comprehensive legislation, to occupy the entire field of

regulation, leaving no room for the states to

supplement federal law [citation]; (ii) when

compliance with both federal and state regulations is

an impossibility [citation]; or (iii) when state law

‘stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of

Congress.’ ” (Bronco Wine Co. v. Jolly (2004) 33

Cal.4th 943, 955, italics added; see also Farm Raised

Salmon Cases (2008) 42 Cal.4th 1077, 1087.) Because

preemption questions turn on Congressional intent, a

reviewing court begins with the text of the federal

statute, “the source of the best evidence concerning

the breadth of Congress’s preemptive intent.”

(Quesada, supra, 62 Cal.4th at p. 308.)

D. Federal OSH Act preemption principles

announced by the high court

The United States Supreme Court examined the

preemptive effect of the federal OSH Act in Gade,

supra, 505 U.S. 88. The high court’s plurality and

concurring opinions offer helpful interpretive

18a

guidance, but as explained below, in Gade, there was

no approved state plan, so the extent to which an

approved state plan displaces federal authority was

not at issue.

In Gade, Illinois state laws imposed special

requirements for persons working with hazardous

waste, including training and licensing requirements.

There was a federal occupational safety and health

standard in effect concerning training and

certification of persons working with hazardous

wastes. The stated purpose of the Illinois laws was

to “ ‘promote job safety’ ” and “ ‘protect life, limb and

property.’ ” (Gade, supra, 505 U.S. at p. 91 (plur. opn.

of O’Connor, J.).) Two issues were raised by those

laws. The first was whether, in the absence of an

approved state plan, the federal OSH Act preempted

efforts by the state to supplement the existing and

applicable federal occupational safety and health

standards. The second issue was whether state

statutes having an asserted dual purpose of

protecting public as well as worker safety would be

preempted. A majority of the court concluded that

the state law was preempted, but there was

disagreement

whether

implied

or

express

preemption was involved. (Id., at pp. 91-109 (plur.

opn. of O’Connor, J.); id., at pp. 109-114 (conc. opn.

of Kennedy, J.).)

The high court’s plurality opinion used an implied

preemption analysis. The plurality found that when

a federal occupational safety and health standard

exists and the state has not presented a plan to the

Secretary of Labor and obtained approval, the

application of a state occupational safety and health

19a

standard would be an obstacle to achieving Congress’s

goal that only a single regime of occupational safety

and health regulation should apply. The plurality

held that “nonapproved state regulation of

occupational safety and health issues for which a

federal standard is in effect is impliedly pre-empted

as in conflict with the full purposes and objectives of

the OSH Act. [Citation.] The design of the statute

persuades us that Congress intended to subject

employers and employees to only one set of

regulations, be it federal or state, and that the only

way a State may regulate a [federally]-regulated

occupational safety and health issue is pursuant to an

approved state plan that displaces the federal

standards.” (Gade, supra, 505 U.S. at pp. 98-99.)

The plurality opinion relied on 29 United States

Code section 667(b), specifically the subdivision’s

language directing that a state “shall” submit a plan

for federal approval if a state wishes to “assume

responsibility” for development and enforcement of

occupational safety and health standards when a

federal standard already exists. (Gade, supra, 505

U.S. at p. 99.) “The unavoidable implication of this

provision is that a State may not enforce its own

occupational safety and health standards without

obtaining the Secretary’s approval . . . .” (Ibid.) In

the plurality’s view, the federal OSH Act as a whole

indicated that “a State may develop an occupational

safety and health program tailored to its own needs,

but only if it is willing completely to displace the

applicable federal regulations.” (Id., at p. 100, italics

added.)

20a

The plurality opinion also pointed to 29 United

States Code section 667(a)—which acknowledges the

authority of states to exercise jurisdiction where there

is no federal standard—reasoning that the

subdivision’s “preservation of state authority in the

absence of a federal standard presupposes a

background preemption of all state occupational

safety and health standards whenever a federal

standard governing the same issue is in effect.”

(Gade, supra, 505 U.S. at p. 100, italics added.) And

pointing to 29 United States Code section 667(c),

which establishes conditions for plan approval, the

Gade decision observed that the conditions would be

nullified if states could simply adopt their own

standards without going through the approval

process. (Id., at p. 100.)

Subdivisions (f) and (h) of 29 United States Code

section 667 also confirmed the plurality’s view that

states cannot act when there is no approved state plan

but a federal standard does exist.

Because

subdivision (f) of section 667 gave the federal

Secretary of Labor the power to withdraw approval of

a state plan, the decision reasoned that “[o]nce

approval is withdrawn, the plan ‘cease[s] to be in

effect’ and the State is permitted to assert jurisdiction

under its occupational health and safety law only for

those cases ‘commenced before the withdrawal of the

plan.’ ” (Gade, supra, 505 U.S. at p. 101.) This

language “assumes that the State loses the power to

enforce all of its occupational safety and health

standards once approval is withdrawn.” (Ibid.) And

the plurality saw the “same assumption of exclusive

federal jurisdiction in the absence of an approved

21a

state plan” in subdivision (h), which permits states to

enter temporary agreements to enforce their own

laws in the two years following the passage of the

federal OSH Act. (Id., at pp. 101-102.)

From these provisions, the plurality “conclude[d]

that the OSH Act precludes any state regulation of an

occupational safety or health issue with respect to

which a federal standard has been established, unless

a state plan has been submitted and approved

pursuant to [29 United States Code section 667](b).

Our review of the Act persuades us that Congress

sought to promote occupational safety and health

while at the same time avoiding duplicative, and

possibly counterproductive, regulation.

It thus

established a system of uniform federal occupational

health and safety standards, but gave States the

option of pre-empting federal regulations by

developing their own occupational safety and health

programs.” (Gade, supra, 505 US. at p. 102, italics

added.)

Addressing the separate question whether

preemption—still in the absence of an approved state

plan—reached state laws that directly regulated

occupational safety and health but also were intended

to protect public safety, the plurality concluded that

the preemptive effect of the federal law extended to

such “dual impact” state laws. (Gade, supra, 505 U.S.

at pp. 104-105.) The state argued that its laws, which

imposed requirements regarding training, testing,

and licensing of crane and hazardous waste site

workers, were intended to promote both public and

worker safety, and therefore should not be preempted.

The plurality disagreed, declaring that “dual impact

22a

state regulation cannot avoid OSH Act pre-emption

simply because the regulation serves several

objectives rather than one.” (Id. at p. 106.) Rather,

“[w]hatever the purpose or purposes of the state law,

pre-emption analysis cannot ignore the effect of the

challenged state action on the pre-empted field. The

key question is thus at what point the state regulation

sufficiently interferes with federal regulation that it

should be deemed pre-empted . . . .” (Id. at p. 107,

italics added.) The decision concluded that state law

that “ ‘constitutes, in a direct, clear and substantial

way, regulation of worker health and safety’ ” would be

preempted, whereas “state laws of general

applicability (such as laws regarding traffic safety or

fire safety) that do not conflict with [federal]

standards and that regulate the conduct of workers

and nonworkers alike would generally not be preempted. Although some laws of general applicability

may have a ‘direct and substantial’ effect on worker

safety, they cannot fairly be characterized as

‘occupational’ standards, because they regulate

workers simply as members of the general public.”

(Ibid., italics added.)

“In sum, a state law requirement that directly,

substantially, and specifically regulates occupational

safety and health is an occupational safety and health

standard within the meaning of the [federal OSH]

Act. . . . If the State wishes to enact a dual impact law

that regulates an occupational safety or health issue

for which a federal standard is in effect, . . . the Act

requires that the State submit a plan for the approval

of the Secretary.” (Gade, supra, 505 U.S. at pp. 107108, italics added.)

23a

The concurring opinion by Justice Kennedy

concluded that the federal law expressly preempts

state occupational safety and health standards when

a federal standard is in effect and the state has not

submitted a plan for approval, but vigorously opposed

the plurality’s finding of implied preemption. (Gade,

supra, 505 U.S. at pp. 109-114 (conc. opn. of Kennedy,

J.).) In his view, the plurality’s analysis failed to

surmount the “high threshold” required for a finding

that a law is preempted because it conflicts with the

purpose of a federal law. (Id. at p. 110.) He added

that such preemption “should be limited to state laws

which impose prohibitions or obligations which are in

direct contradiction to Congress’ primary objectives,

as conveyed with clarity in the federal legislation.”

(Ibid.) The concurrence observed no such direct

contradiction between federal standards and a

“concurrent, supplementary state scheme.” (Ibid.)

Rather, all the inferences from 29 United States Code

section 667(b)’s express terms direct the preemption of

state occupational safety standards in the absence of

a state plan approved by the Secretary of Labor.

Absent those express terms, Justice Kennedy “would

not say that state supplementary regulation conflicts

with the purposes of the federal OSH Act[] or that it

“ ‘interferes with the methods by which the federal

statute was designed to reach [its] goal.’ ” [Citation.]”

(Id. at p. 111.)

According to the concurrence, the plurality opinion

failed to comply with a presumption that “ ‘historic

police powers of the States’ ” are not preempted

“ ‘unless that was the clear and manifest purpose of

Congress.’ ” (Gade, supra, 505 U.S. at p 111.) In

24a

addition, Justice Kennedy criticized the plurality’s

method of inferring the congressional purpose, saying

that a “freewheeling judicial inquiry into whether a

state statute is in tension with federal objectives

would undercut the principle that it is Congress

rather than the courts that pre-empts state law.”

(Ibid.)

Although Justice Kennedy disagreed with the

plurality’s conclusion that preemption was implied,

he concluded that the plurality’s analysis “amply

demonstrates” express preemption. (Gade, supra, 505

U.S. at p. 112.) In his view, although 29 United

States Code section 667(b), which authorizes a state

to assume responsibility for occupational safety and

health issues, lacked the “magic words” of preemption

(Gade, supra, 505 U.S. at p. 112), “[t]he statute is

clear: When a State desires to assume responsibility

for an occupational safety and health issue already

addressed by the Federal Government, it must submit

a state plan. The most reasonable inference from this

language is that when a State does not submit and

secure approval of a state plan, it may not enforce

occupational safety and health standards in that

area.” (Id. at pp. 112-113 [also reading the language

of 29 U.S.C. 667(b) in conjunction with section 667(a),

(c), and (f)].)

Justice Kennedy found it unnecessary to “reiterate

the plurality’s persuasive discussion on this point.”

(Gade, supra, 505 U.S. at p. 113.) The plurality

similarly observed that although the two opinions

disagreed concerning the category of preemption, they

agreed on federal OSHA’s preemptive scope, based on

25a

the language of 29 United States Code section 667.

(Id. at p. 104, fn. 2.)

II. Discussion

The Court of Appeal held that the UCL and FAL

claims are preempted by the federal OSH Act both

expressly and through application of the principles of

implied preemption. It concluded that Congress has

essentially occupied the entire field of workplace

safety regulation and enforcement other than

workers’ compensation and the precise provisions of

an approved state plan. It reasoned that “[b]ecause

the [federal] OSH Act allows a state to avoid federal

preemption only if it obtains federal approval of its

own plan, it necessarily follows that a state has no

authority to enact and enforce laws governing

workplace safety which fall outside of that approved

plan.” In its view, the district attorney’s use of UCL

and FAL actions based upon violations of approved

Cal/OSHA standards was an attempt to govern

workplace safety without securing approval by the

federal Secretary of Labor.

As the Court of Appeal observed, the federal OSH

Act expressly states what is not preempted—state

laws governing workers’ compensation, a broad

category of statutory and common law actions

touching on worker safety, and any occupational

safety or health issue as to which there is no federal

standard.

(29 U.S.C. §§ 653(b)(4) [workers’

compensation and other laws related to worker

safety], 667(a) [no federal standard].) As the Court of

Appeal’s analysis further reflects, the federal OSH

Act does not expressly describe what state regulation

26a

is preempted. This omission does not preclude a

finding of explicit preemption; as Justice Kennedy

noted in Gade, the high court has “never required any

particular magic words” to establish express

preemption. (Gade, supra, 505 U.S. at p. 112.) But as

illustrated by Justice Kennedy’s concurring opinion,

when a court attempts to discern from a statutory

scheme the expression of an intent to displace state

law, the analysis may be substantially similar to an

implied preemption analysis. Therefore, we will first

address whether preemption of the UCL and FAL

claims is implied. As will be seen, this analysis also

resolves the issue of whether the federal scheme

explicitly preempts these claims.

A. No implied preemption of UCL and FAL

claims

1. Field preemption

a. The field preempted is narrow

In enacting the federal OSH Act, Congress entered

“a field that traditionally had been occupied by the

States. Federal regulation of the workplace was not

intended to be all encompassing, however.” (Gade,

supra, 505 U.S. at p. 96 (plur. opn. of O’Connor, J.);

see United Air Lines, supra, 32 Cal.3d at p. 772

[“Despite a broad authorization to [the federal OSH

Act] . . . , the act did not foreclose other federal

agencies or states from exercising . . . jurisdiction”

over occupational safety and health].) Unlike some

federal statutes, 29 United States Code section 667

does not employ broad language preempting all state

regulation, laws, or remedies relating to, concerning,

or merely touching on the issue at hand, namely

27a

occupational safety and health. (See, e.g., 21 U.S.C.

§ 360k(a) [except as specifically provided, “no State

. . . may establish or continue in effect with respect to

[medical devices] any requirement . . . different from,

or in addition to, any requirement [under the specific

federal law]”; 29 U.S.C. § 1144(a) [ERISA preempts

“any and all State laws insofar as they may now or

hereafter relate to any employee benefit plan”];

49 U.S.C. § 14501(c)(1) [“[A] State . . . may not enact

or enforce a law, regulation, or other provision having

the force and effect of law related to a price, route, or

service of any motor carrier . . . with respect to the

transportation of property”]; id., § 41713(a)(4)(A) [“[A]

State . . . may not enact or enforce a law . . . related to

a rate, route, or service of an air carrier”].)

Moreover, various elements of the federal OSH Act

convince us that the preempted field is narrow. First,

we have seen that when there is no federal standard,

there is no preemption. (29 U.S.C. § 667(a).) This

provision acknowledges that federal authority does

not occupy the entire field. Rather, states retain

authority freely to apply their own law in the field of

occupational safety or health when the Secretary has

not promulgated an applicable federal standard.

Second, even when there are federal standards,

states may “assume responsibility for development

and enforcement” of state occupational safety and

health standards, provided the state submits and

gains approval for a state plan. (29 U.S.C. § 667(b).)

Under the terms of the statute, an approved state

plan “preempts” federal standards.

(29 U.S.C.

§ 667(b) [entitled “Submission of State plan for

development and enforcement of State standards to

28a

preempt applicable Federal standards”]; see also

Gade, supra, 505 U.S. at p. 119 (dis. opn. of Souter, J.)

[this heading was “enacted as part of the statute and

properly [may be] considered under our canons of

construction”].) In other words, once the state plan is

adopted and approved, state law has the effect of

broadly preempting parallel federal law. (See Gade,

supra, 505 U.S. at pp. 96-97 (plur. opn. of O’Connor,

J.) [observing that 29 U.S.C. § 667(b) “gave the States

the option of pre-empting federal regulation

entirely”]; United Air Lines, supra, 32 Cal.3d at p. 772

[adoption of an approved plan “removes federal

preemption so that the state may exercise its own

sovereign powers over occupational safety and

health”].) In addition, states can provide greater

protection if they adopt their own plans with

standards and enforcement that are at least as

protective as federal law. (29 U.S.C. § 667(c)(2).)

We acknowledge that the Secretary of Labor has

authority to approve modifications to a state’s plan

(29 U.S.C. § 667(c)) and “shall . . . make a continuing

evaluation of the manner in which each State having

a plan . . . is carrying out such plan.” (Id., § 667(f).)

Notwithstanding these provisions, the federal OSH

Act as a whole does not suggest that the preempted

field encompasses all means of enforcement not

specifically included in the state’s approved plan. On

the contrary, the federal OSH Act encourages states

to “assume the fullest responsibility for the

administration and enforcement of their occupational

safety and health laws.” (29 U.S.C. § 651(b)(11).) In

addition, it directs that the Secretary “shall” approve

a conforming state plan or modification, and places

29a

administrative limits on the Secretary of Labor’s

discretion to reject state plans. (Id., § 667(d).) And as

we have observed, once a state plan is approved, it is

federal, not state, law that must give way. (29 C.F.R.

§ 1953.3(a) (2017) [federal approval of a state plan “in

effect removes the barrier of Federal preemption, and

permits the State to adopt and enforce State

standards,” including adopting and implementing

modifications].) Finally, even if any new enforcement

method that is related to an existing approved

standard should be submitted to the Secretary—a

question we need not answer—it does not follow that

the new method is preempted until approved. State

modifications to an approved plan go into effect

immediately, subject to a review by the Secretary. (67

Fed.Reg. 60122 (Sept. 25, 2002); see also 62 Fed.Reg.,

supra, at p. 31165 [a modification “takes effect prior

to and pending OSHA review of the modification”].)

Third, the federal OSH Act’s savings clause (29

U.S.C. § 653(b)(4)) leads us to infer a narrow field of

implied preemption. That provision disclaims any

intent to interfere with state law in a broad domain

affecting occupational safety and health, whether or

not there is an approved state plan. Specifically,

notwithstanding the existence of federal standards,

not only are state workers’ compensation actions not

preempted, but state tort claims and criminal

prosecutions also survive, although they may be

based on duties established by state occupational

safety and health standards. (See Pedraza v. Shell

Oil Co. (1st Cir. 1991) 942 F.2d 48, 53-54, and cases

cited [tort claims not preempted: “[W]e find no

warrant whatever for an interpretation which would

30a

preempt enforcement in the workplace of private

rights and remedies traditionally afforded by state

laws of general application”]; State v. Far West Water

& Sewer (Ariz. 2010) 228 P.3d 909, 919, and cases

cited [no preemption of prosecution under state

criminal law punishing conduct that is also governed

by federal occupational safety and health standards,

the existence of some criminal penalties within the

federal act itself notwithstanding]; People v. Pymm

(N.Y. 1990) 563 N.E.2d 1, 4 [referring to “continued

viability of State statutory and common-law duties”].)

Indeed, section 653(b)(4) has been interpreted as a

uniquely broad savings clause (In re Welding Fume

Products Liability Litigation (N.D.Ohio 2005) 364

F.Supp.2d 669, 687, & fn. 21), and broad savings

clauses may be seen as an indication that the field

preempted is narrow. (See Viva! Internat. Voice for

Animals v. Adidas Promotional Retail Operations,

Inc. (2007) 41 Cal.4th 929, 944.)

Finally, the provisions we have discussed indicate

that the federal OSH Act contemplates a cooperative

system of workplace safety regulation, not an

exclusively federal one.

When federal schemes

involve cooperation and concurrent jurisdiction, this

circumstance also suggests that the scope of

preemption was not intended to be broad. (Olszewski,

supra, 30 Cal.4th at p. 816 [“ ‘Where . . . coordinate

state and federal efforts exist within a

complementary administrative framework, and in the

pursuit of common purposes, the case for federal preemption becomes a less persuasive one’ ”].)

31a

b. The UCL and FAL claims do not fall within

this narrow field of preemption

Laws of general application are not ordinarily

preempted by the federal act. (Gade, supra, 505 U.S.

at p. 107 (plur. opn. of O’Connor, J.); id. at p. 114

(conc. opn. of Kennedy, J.).) As explained below,

under state law, actions under the UCL or FAL are

not considered to be a means of enforcing the law

claimed to have been violated; rather, they provide a

remedy for economic damage suffered as a result of

violations of a wide array of other laws. Furthermore,

to the extent these claims may be a considered an

enforcement mechanism with respect to the state

plan’s substantive standards, these claims merely

supplement enforcement of state standards. Federal

OSHA’s provisions related to the enforcement of state

plans are concerned with ensuring enforcement that

is at least as effective as the federal standards;

nothing in the federal act suggests a concern with

enforcement that exceeds federal requirements.

The UCL concerns unfair competition, a term that

“mean[s] and include[s] any unlawful, unfair or

fraudulent business act or practice and unfair,

deceptive, untrue or misleading advertising and any

act prohibited by [the false advertising law].” (Bus. &

Prof. Code, § 17200.) The purpose of the UCL “is to

protect both consumers and competitors by promoting

fair competition in commercial markets for goods and

services.” (Kasky v. Nike, Inc. (2002) 27 Cal.4th 939,

949.) As we have said, “the act provides an equitable

means through which both public prosecutors and

private individuals can bring suit to prevent unfair

business practices and restore money or property to

32a

victims of these practices.” (Zhang v. Superior Court

(2013) 57 Cal.4th 364, 371, italics added.) The FAL,

for its part, makes actionable “untrue or misleading”

statements made to “induce the public to enter into

any obligation” to purchase goods and services. (Bus.

& Prof. Code, § 17500.) Actions to enforce the UCL or

FAL, which may be brought by government officials

and by individuals who have suffered injury in fact

(Bus. & Prof. Code, § 17203), address the

“ ‘“overarching legislative concern . . . to provide a

streamlined procedure for the prevention of ongoing

or threatened acts of unfair competition.” [Citation.]’ ”

(Zhang, supra, 57 Cal.4th at p. 371, italics added.)

And the remedies are “cumulative . . . to the remedies

or penalties available under all other laws of this

state.” (Bus. & Prof. Code, § 17205.)

As noted above, under state law, these actions are

not considered on their face to be a means of enforcing

the underlying law. “ ‘By proscribing “any unlawful”

business practice, “[the UCL] ‘borrows’ violations of

other laws and treats them as unlawful practices”

that the [UCL] makes independently actionable.

[Citations.]’ ” (Rose v. Bank of America, N.A. (2013)

57 Cal.4th 390, 396.) We have explained that “by

borrowing requirements from other statutes, the UCL

does not serve as a mere enforcement mechanism. It

provides its own distinct and limited equitable

remedies for unlawful business practices, using other

laws only to define what is ‘unlawful.’ [Citation.] The

UCL reflects the Legislature’s intent to discourage

business practices that confer unfair advantages in

the marketplace to the detriment of both consumers

and law-abiding competitors.” (Id. at p. 397; see

33a

People ex rel. Harris v. Pac Anchor Transportation,

Inc. (2014) 59 Cal.4th 772, 783 [Federal Aviation

Administration Act does not on its face preempt UCL

claims against motor carriers for misclassification of

drivers]; In re Tobacco Cases II (2007) 41 Cal.4th

1257, 1272 [a federal law governing cigarette sales to

minors on its face did not expressly preempt the UCL,

which “is a law of general application, and it is not

based on concerns about smoking and health”]; Korea

Supply Co. v. Lockheed Martin Corp. (2003) 29

Cal.4th 1134, 1150; Cel-Tech Communications, Inc. v.

Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th

163, 180; Stop Youth Addiction, Inc. v. Lucky Stores,

Inc. (1998) 17 Cal.4th 553, 560, 566 576.) Thus, the

UCL and FAL are laws of general application.

We acknowledge that in some instances, a UCL

claim may fall within a field of preemption. For

example, in In re Tobacco Cases II, supra, 41 Cal.4th

1257, a UCL claim based on advertising activities

alleged to violate Penal Code section 308 (prohibiting

sale of tobacco products to minors and possession of

such products by minors) was preempted as applied

under the particular terms of a federal law governing

cigarette labeling and advertising. (Id. at pp. 12721273.) Under the federal law involved, preemption

turned on whether the particular UCL claim would

impose a duty necessarily and inherently based on

concerns about smoking and health. (Id. at p. 1273.)

But here, the UCL and FAL claims are based on

standards set forth in an approved state plan, and

which therefore preempt any federal standards.

Because these claims do not impose any duty on

employers that is subject to federal preemption, they

34a

do not come within the principles articulated in

Tobacco Cases II.

We also recognize that the federal OSH Act is

concerned not only with a state’s substantive

standards, but also with its enforcement. (29 U.S.C.

§ 667(b) [a state that wants to assume responsibility

for “development and enforcement” of standards must

submit a state plan for “development of such

standards and their enforcement”].) Therefore, when

UCL and FAL claims are premised on violations of a

state’s plan, the UCL and FAL arguably come within

the high court’s description of an occupational safety

and health standard in the context of the federal OSH

Act:

“a state law requirement that directly,

substantially, and specifically regulates occupational

safety and health.” (Gade, supra, 505 U.S. at pp. 107

(plur. opn. of O’Connor, J.); id. at p. 114 (conc. opn. of

Kennedy, J.).)

Notably, however, the federal OSH Act’s concern

regarding enforcement is only that states provide

enforcement “at least as effective” as required under

the federal OSH Act. (29 U.S.C. § 667(c)(2); see 29

C.F.R. § 1902.3(d) (2017).) Its focus on adequate

enforcement, and its silence with respect to

enforcement that is more than adequate or is pursued

through mechanisms other than those set forth in a

state’s plan, lead us to conclude that the federal OSH

Act’s scheme is not “ ‘“so pervasive as to make

reasonable the inference that Congress left no room

for the States to supplement it.”’ ” (Gade, supra, 505

U.S. at p. 98 (plur. opn. of O’Connor, J.).) California

has provided adequate enforcement provisions

through its plan, and there is no “unavoidable

35a

implication” to be derived from the federal OSH Act

that where a state has met this federal requirement,

Congress intended to preclude supplemental

enforcement of approved standards. (Id. at p. 99.)

Our conclusion is consistent with the decision of

the federal Department of Labor approving

California’s Hazard Communication Standard

(Standard), which incorporated provisions from

Proposition 65, the Safe Drinking Water and Toxic

Enforcement Act. (Health & Saf. Code, §§ 25249.5 et

seq.; 62 F.R. § 31159-01.) In addition to adopting the

substantive standards of Proposition 65, “the

Cal/OSHA standard incorporate[d] the enforcement

mechanism of Proposition 65, which provides for

supplemental judicial enforcement by allowing the

State Attorney General, district attorneys, city

attorneys, city prosecutors, or ‘any person in the

public interest’ to file civil lawsuits against alleged

violators.” (62 Fed.Reg., supra, at p. 31161.) Some

comments regarding the proposed Standard

contended that Proposition 65’s private right of action

violated the federal requirement that an agency be

designated to enforce the state plan. The Board’s

decision noted that “[i]f a State standard is not

identical to Federal standards, the State standard

(and its enforcement) must be at least as effective as

the comparable Federal standard.” (62 Fed.Reg,

supra,. at p. 31160.) It also observed, “Although [the

federal OSH Act] does not authorize private

enforcement, OSHA State plans do not operate under

a delegation of Federal authority but under a system

which allows them to enact and enforce their own

laws and standards under State authority. Therefore,

36a

nothing in the Act prevents States with approved

plans from legislating such a supplemental private

right of action in their own programs. . . . [¶] In the

case of Proposition 65, private enforcement is

supplemental to, not a substitute for, enforcement by

Cal/OSHA. Private enforcement, therefore, should

not detract from Cal/OSHA’s responsibilities to

enforce State standards.” (Id., p. 31167.)

The federal Department’s consideration of

Proposition 65 occurred in the context of an approval

of a plan amendment, but Congress has not specified

(as it has elsewhere) that any amendments to the

state plan—even as to substantive standards—must

be submitted to the Secretary of Labor for approval

before they are implemented. (See, e.g., 7 U.S.C.

§ 6507(c)(2) [in context of changes to federallyapproved supplemental state requirements for

organic food certification, governing state official,

“prior to implementing any substantive change to

programs approved under this subsection, shall

submit such change to the Secretary for approval”].)

In addition, as explained above, the federal OSH Act’s

provisions related to the authority of the Secretary of

Labor to approve modifications to a state plan and to

evaluate a state’s execution of its plan (29 U.S.C.

§ 667(c), (f)) raise the potential that a modification may

be rejected or that approval of a plan may be

withdrawn, but these provisions leave the state plan

intact and do not preempt state law before a

modification is rejected or approval is withdrawn.

There is no indication in these provisions that any

state deviation from the formally approved plan is, by

some self-executing feature, without effect until it is

37a

brought to the Secretary’s notice and formally

approved as an amendment.

Federal regulations and commentary are in accord

that changes to state plans may be implemented

immediately, prior to any action by the Secretary of

Labor or that officer’s designee, federal OSHA:

“Federal OSHA approval of a State plan . . . in effect

removes the barrier of Federal preemption, and

permits the State to adopt and enforce State

standards and other requirements regarding

occupational safety or health issues regulated by

OSHA. A State with an approved plan may modify or

supplement the requirements contained in its plan,

and may implement such requirements under State

law, without prior approval of the plan change by

Federal OSHA. Changes to approved State plans are

subject to subsequent OSHA review. If OSHA finds

reason to reject a State plan change, and this

determination is upheld after an adjudicatory

proceeding, the plan change would then be excluded

from the State’s Federally-approved plan.” (29 C.F.R.

§ 1953.3(a) (2017).) Federal OSHA explained that

this regulation reflects the agency’s “longstanding

interpretation of the Act to the effect that States

which have submitted and obtained Federal approval

of a State plan under [the federal OSH Act] may adopt

modifications to their State plan (such as new

standards, regulations, amendments to State OSHA

legislation, or revised enforcement procedures) and

may implement these modifications upon adoption,

without prior approval of each particular

modification. . . . OSHA has always viewed its

enabling

statute

as

not

requiring

pre-

38a

enforcement/pre-implementation Federal approval

. . . .” (67 Fed.Reg., supra, at p. 60123, italics added;

see also 62 Fed.Reg., supra, at p. 31165 [“A

modification to an approved State plan takes effect

prior to and pending OSHA review of the

modification” and the burden of proof rests on the

party opposing the modification]; see Florida Citrus

Packers v. California (N.D.Cal. 1982) 545 F.Supp.

216, 219 [upholding federal OSHA’s pre-approval

enforcement policy]; see also Shell Oil Co. v. U.S.

Dept. of Labor (D.D.C. 2000) 106 F.Supp.2d 15, 18

[noting in passing that federal OSHA routinely

applies this pre-approval enforcement policy].)6

6 We are aware of Industrial Truck Ass’n v. Henry (9th Cir.

1997) 125 F.3d 1305, in which the court read the Gade plurality’s

implied preemption analysis relatively broadly, and concluded

that the state regulations promulgated to implement

California’s Safe Drinking Water and Toxic Enforcement Act

were preempted by the federal OSH Act in the workplace context

until the regulations were included in the existing state OSHA

standards and approved by the Secretary of Labor. In the

Industrial Truck Ass’n case, unlike here, it was undisputed that

the challenged regulations themselves constituted occupational

safety and health standards, and that there were inconsistent

federal standards on the same issue; that case did not present a

situation implicating mere additional enforcement measures for

existing, approved standards. Moreover, as the Ninth Circuit

recognized, “[a]n agency’s interpretation of the preemptive effect

of its regulations is entitled to deference where Congress has

delegated authority to the agency, the agency’s interpretation is

not contrary to a statute, and agency expertise is important to

determining preemption.” (Id. at p. 1311.) In light of this

principle, the Ninth Circuit should have given deference to the

federal Department of Labor’s decision approving California’s

incorporation of provisions from Proposition 65 into a standard

under the state plan. (62 Fed.Reg, supra.) As noted above, that

39a

Finally, we reiterate the strong presumption

against preemption, arising both from the fact that

the federal legislation addresses an area that has

been the long-standing subject of state regulation and

from the fact that California has assumed

responsibility under the federal OSH Act to regulate

worker safety and health, thereby preempting federal

law. In light of the cooperative character of the

federal OSH Act, the authority the federal OSH Act

grants states that have assumed responsibility for

worker safety and health, the nature of UCL and FAL

claims, and the strong presumption against

preemption, we find no implied preemption of the

claims in this case.

2. Obstacle preemption

To recall, “Obstacle preemption permits courts to

strike state law that stands as ‘an obstacle to the

accomplishment and execution of the full purposes

and objectives of Congress.’ [Citations.] It requires

proof Congress had particular purposes and

objectives in mind, a demonstration that leaving state

law in place would compromise those objectives, and

decision reflects the federal agency’s view that a state may

modify its enforcement mechanisms without prior federal

approval.

(62 Fed.Reg., supra, at p. 31165.)

Proper

consideration of the federal Department’s decision would have

led to a narrower reading of the federal OSH Act’s preemptive

effect. (See also National Cable & Telecommunications Ass’n v.

Brand X Internet Services (2005) 545 U.S. 967, 982 [a subsequent

agency construction is entitled to deference under Chevron

U.S.A. Inc. v. Natural Resources Defense Council, Inc. (1984) 467

U.S. 837 unless the court’s prior construction was based on a

conclusion that the terms of the statute were unambiguous,

leaving no room for the agency’s construction].)

40a

reason to discount the possibility the Congress that

enacted the legislation was aware of the background

tapestry of state law and content to let that law

remain as it was.” (Quesada, supra, 62 Cal.4th at

p. 312.) We “conduct our analysis from the starting

point of a presumption that displacement of state

regulation in areas of traditional state concern was

not intended absent clear and manifest evidence of a

contrary congressional intent.” (Id. at p. 315; see also

Iskanian v. CLS Transportation Los Angeles, LLC

(2014) 59 Cal.4th 348, 388 [a high threshold must be

surmounted before obstacle preemption will be

found].)

The principal goal of the federal OSH Act’s

enactment was to “address the problem of uneven and

inadequate state protection of employee health and

safety” by supplying a minimum level of protection

throughout the country—a federal “nationwide ‘floor’

of minimally necessary safeguards.” (United Air

Lines, supra, 32 Cal.3d at p. 772.) Federal approval

of the California plan indicates that this goal has been

met in this state. Even if we view UCL and FAL

actions based on Cal/OSHA violations as having a

substantial impact on occupational safety and health

issues, that impact is not an obstacle to achieving the

congressional

purpose,

nor

are

additional

enforcement mechanisms an obstacle to establishing

at least a minimum level of worker protection.7

7 The congressional purpose recognized by the plurality opinion

in Gade, supra, 505 U.S. 88, that there be but a single standard

of conduct to which employers must adhere (id. at p. 99) was at

issue in Gade because there was no approved state plan that

displaced the federal law. In contrast, the sole applicable

41a

Similarly, UCL and FAL claims that are premised

on Cal/OSHA violations do not conflict with the

federal OSH Act’s provision that when state

standards are applicable to products in interstate

commerce, the Secretary of Labor must determine

that the standards “are required by compelling local

conditions and do not unduly burden interstate

commerce.” (29 U.S.C. § 667(c)(2).) Such claims

involve the same substantive standards that have

been approved by the Secretary, and therefore do not

impose any greater substantive burdens on interstate

commerce.

Even if the availability of greater

penalties should be incorporated into the state plan

and submitted to the Secretary of Labor for review of

any impact on interstate commerce, it does not follow

that any change that has not yet been incorporated

and approved is preempted in the meantime.

Neither do the UCL or FAL claims obstruct

another of the federal OSH Act’s purposes, namely to

encourage the States “to assume the fullest

responsibility for the administration and enforcement

of their occupational safety and health laws.”

(29 U.S.C. § 651(b)(11); see also 29 C.F.R. § 1902.1(a)

(2017), see id. § 1902.1(c)(1) (2017) [after an approved

plan gains successful review the year following its

initial approval, the federal “enforcement authority

shall not apply with respect to any occupational safety

or health issue covered by the plan”].) “OSHA has

relevant standards in this state are the California standards.

The Secretary of Labor retains the authority to audit the state’s

enforcement of its standards and to withdraw federal approval,

but until that happens, only the California standards govern

employer conduct.

42a

interpreted the OSH Act to recognize that States with

approved State plans retain broad power to fashion

State standards” and to experiment. (62 Fed.Reg.,

supra, p. 31160, italics added.) The federal OSH Act

“reflects [a] ‘search for enlightened public policy’ . . .

by removing the bar of preemption through plan

approval and, thus, allowing States to administer

their own workers’ protection laws so long as they

meet the floor established by the Federal OSHA

program.” (Ibid.) We can identify no evidence that

Congress had a “particular purpose[] and objective[]”

to restrict state authority to the exact terms of the

state’s approved state plan. (See Quesada, supra, 62

Ca1.4th at p. 312.)

Finally, there is no reason to “discount” Congress’s

awareness and acceptance of the “background

tapestry” of state law in this area. (Quesada, supra,

62 Cal.4th at p. 312) In the federal OSH Act’s savings

clause, Congress explicitly recognized the continuing

applicability of state law in the field. (See 29 U.S.C.

§ 653(b)(4).) Under that clause, tort litigation could

produce large civil awards and penalties despite the

existence of a more modest state administrative

enforcement plan, but such litigation is not

preempted. Therefore, the magnitude of the potential

UCL and FAL penalties compared with the lesser

administrative penalties imposed under the state

plan are not inconsistent with the federal scheme.

Under the circumstances, there is no “clear and

manifest evidence” (Quesada, supra, 62 Cal.4th at

p. 315) of a congressional intent to displace state

authority over unfair competition and consumer

claims that are premised on Cal/OSHA standards.

43a

B. No express preemption of UCL and FAL

claims

As noted above, the federal OSH Act does not state

that claims such as UCL and FAL claims or that

enforcement actions beyond those specified in a state

plan are preempted until they are included in a plan

and approved by the Secretary of Labor. However,

despite the absence of such a statement, express

preemption may be found where an act’s structure

and language reflect a clear purpose of Congress to

preempt state law. (See Gade, supra, 505 U.S. at

pp. 112-113 (conc. opn. of Kennedy, J.) [express

preemption of state law established by federal OSH

Act provisions that allow state regulation where there

is no relevant federal standard, require a state to

submit a plan in order to assume responsibility for

worker safety and health, set forth conditions for

approval of a plan, and require continuing evaluation

of a plan by the Secretary of Labor].)

As our discussion above of implied preemption

reflects, when a state has obtained approval of a state

plan for the regulation of worker safety and health,

state law preempts federal law. Moreover, with

respect to the enforcement of safety and health

standards, the federal OSH Act requires enforcement

at least as effective as under the federal act; there is

no indication in the language or structure of the

federal OSH Act that states with approved plans

cannot supplement enforcement of federally-approved

standards by means of unfair business practice

claims. (See Farm Raised Salmon Cases, supra, 42

Cal.4th at p. 1090 [permitting UCL claim to proceed

and finding it significant that nothing in the federal

44a

Food, Drug and Cosmetic Act said anything

restricting the range of remedies states could

provide].) Finally, the federal OSH Act allows a state

with an approved plan to implement modifications or

additions without prior approval of the plan change

by Federal OSHA.

In the absence of a clear and manifest

congressional purpose to preempt claims such as the

UCL and FAL claims asserted in this action, such

claims are encompassed in the presumption against

preemption that arises upon a state’s assumption of

responsibility under the federal OSH Act to regulate

worker safety and health. (See Quesada, supra, 62

Cal.4th at p. 315.)

45a

III. Disposition

The judgment of the Court of Appeal is reversed,

and the matter is remanded to the Court of Appeal

with directions to vacate its order granting the

petition for writ of mandate and instead to deny the

petition for writ of mandate, and to remand the

matter to the trial court for further proceedings not

inconsistent with this opinion.

CANTIL-SAKAUYE, C. J.

WE CONCUR:

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

MIHARA, J.*

Associate Justice of the Court of Appeal, Sixth Appellate

District, assigned by the Chief Justice pursuant to article VI,

section 6 of the California Constitution.

*

46a

APPENDIX B

IN THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

____________________

SOLUS INDUSTRIAL INNOVATIONS,

LLC, et al.,

Petitioners,

v.

THE SUPERIOR COURT OF ORANGE

COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

____________________

G047661

____________________

Filed September 22, 2014

As Modified on Denial of Rehearing October 16,

2014

____________________

OPINION

____________________

47a

In this case we are called on to determine whether

federal law preempts the effort by a district attorney

to recover civil penalties under California’s Unfair

Competition Law (UCL) (Bus. & Prof. Code, § 17200

et seq.) based on an employer’s alleged violation of

workplace safety standards.

Petitioners Solus

Industrial

Innovations,

Emerson

Power

Transmission Corp., and Emerson Electric Co.

(collectively Solus) contend the trial court erred by

overruling their demurrer to two causes of action filed

against them by Respondent, the Orange County

District Attorney, alleging a right to recover such

penalties. Solus argues that federal workplace safety

law (Fed/OSHA) preempts any state law workplace

safety enforcement mechanism which has not been

specifically incorporated into the state workplace

safety plan approved by the U.S. Secretary of Labor

(the Secretary).

The district attorney contends that once a state

workplace safety plan has been approved by the

Secretary, as California’s was, the state retains

significant discretion to determine how it will enforce

the safety standards incorporated therein, and thus

the state may empower prosecutors to enforce those

standards through whatever legal mechanism is

available when such a case is referred to them.

The trial court agreed with the district attorney

and consequently overruled Solus’s demurrer to the

two causes of action based on the UCL. But the court

also certified this issue as presenting a controlling

issue of law suitable for early appellate review under

Code of Civil Procedure section 166.1. Solus then filed

a petition for writ of mandate with this court, asking

48a

us to review the trial court’s ruling. After we

summarily denied the petition, the Supreme Court

granted review and transferred the case back to us

with directions to issue an order to show cause.

We issued the order to show cause and then an

initial opinion concluding the trial court’s ruling was

incorrect on the merits. We reasoned that under

controlling law, any part of a state plan not expressly

approved is preempted, and that California’s

workplace safety plan, as approved by the Secretary,

does not include any provision for civil enforcement of

workplace safety standards by a prosecutor through a

cause of action for penalties under the UCL. In the

course of our opinion, we noted that the UCL, in its

current form, was not even in effect when California’s

plan was approved.

The California Supreme Court then granted

review, and transferred the matter back to this court

with directions to reconsider the matter in light of

former Civil Code section 3370.1 (former section

3370.1) repealed by stats. 1977, ch. 299, § 3, p. 1204—

which was in effect when California’s plan was

approved—providing for the imposition of similar

penalties based on acts of unfair competition. Having

done so, we again conclude that the district attorney’s

reliance on the UCL to address workplace safety

violations is preempted.

FACTS

As is typical when we review the propriety of the

trial court’s ruling on a demurrer, “‘we treat the

demurrer as admitting all material facts properly

pleaded, but do not assume the truth of contentions,

49a

deductions or conclusions of law.’” (West v. JPMorgan

Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 792.)

Solus makes plastics at an Orange County

manufacturing facility. In 2007, Solus installed an

electric water heater intended for residential use at

the facility. In March 2009, that water heater

exploded, killing two workers instantly in what

district attorney refers to as an “untimely and horrific

death.”

After the incident, California’s Division of

Occupational Safety and Health (Cal/OSHA) opened

an investigation and determined the explosion had

been caused by a failed safety valve and the lack of

“any other suitable safety feature on the heater” due

to “manipulation and misuse.” Based on Cal/OSHA’s

investigation, it charged Solus with five “‘[s]erious’”

violations of Title 8 of the California Code of

Regulations in an administrative proceeding,

including violations of: “(1) section 467(a) for failure

to provide a proper safety valve on the heater; (2)

section 3328(a) for permitting the unsafe operation of

the water heater; (3) section 3328(b) for improperly

maintaining the water heater; (4) section 3328(f) for

failing to use good engineering practices when

selecting and using the unfit residential water heater

in the extrusion operations; and (5) section 3328(h) for

permitting unqualified and untrained personnel to

operate and maintain the water heater.” Cal/OSHA

also cited Solus with one “‘[w]illful’” violation of the

same regulation, based on its “willful failure to

maintain the residential water heater in a safe

operating condition.”

50a

Because the incident involved the death of two

employees, and there was evidence that a violation of

law had occurred, Cal/OSHA’s Bureau of

Investigation forwarded the results of its internal

investigation to the district attorney as required by

Labor Code section 6315, subdivision (g). In March

2012, the district attorney filed criminal charges

against two individuals, including Solus’s plant

manager and its maintenance supervisor, for felony

counts of violating Labor Code section 6425,

subdivision (a). (See People v. Faulkinbury (Super.

Ct. Orange County, 2012, No. 12CF0698).) No party

challenges the district attorney’s standing to bring

these or other appropriate criminal prosecutions.

The district attorney also filed the instant civil

action against Solus. The complaint contains four

causes of action, all based on the same worker health

and safety standards placed at issue in the

administrative proceedings.

The first two causes of action are not at issue in

this writ proceeding. The third cause of action alleges

that Solus’s failure to comply with workplace safety

standards amounts to an unlawful, unfair and

fraudulent business practice under Business and

Professions Code section 17200, and the district

attorney requests imposition of civil penalties as a

consequence of that practice, in the amount of up to

$2,500 per day, per employee, for the period from

November 29, 2007 through March 19, 2009.

The fourth cause of action alleges Solus made

numerous false and misleading representations

concerning its commitment to workplace safety and

its compliance with all applicable workplace safety

51a

standards, and as a result of those false and

misleading statements, Solus was allegedly able to

retain employees and customers in violation of

Business and Professions Code section 17500. Again,

the district attorney requests imposition of civil

penalties as a consequence of this alleged misconduct,

in the amount of up to $2,500 per day, per employee,

for the period from November 29, 2007 through March

19, 2009.

Solus demurred to these two causes of action,

contending they were preempted under Fed/OSHA,

because a prosecutor’s pursuit of civil penalties under

the UCL is not part of California’s workplace safety

plan approved by the Secretary. The trial court

disagreed, and overruled the demurrer to the district

attorney’s two causes of action based on violations of

the UCL.

The trial court subsequently granted a request to

certify the preemption issue as appropriate for early

appellate review under Code of Civil Procedure

section 166.1, finding “the federal preemption issue

raised in [Solus’s] demurrer as to the Third and

Fourth Causes of Action in the Complaint presents a

controlling question of law as to which there are

substantial grounds for difference of opinion and that

appellate resolution of this issue may materially

advance the conclusion of the litigation.”

Solus filed a petition for writ of mandate with this

court, which we summarily denied. After our denial,

the Supreme Court granted review and transferred

the case back to us with directions to issue an order

to show cause. On May 10, 2013, we issued the order

to show cause.

52a

DISCUSSION

1. Standard of Review

“We apply a de novo standard of review because

this case was resolved on demurrer [citation] and

because federal preemption presents a pure question

of law [citation].” (Farm Raised Salmon Cases (2008)

42 Cal.4th 1077, 1089, fn. 10.) However, “[i]t is well

established that the party who asserts that a state

law is preempted bears the burden of so

demonstrating.” (Id. at p. 1088.) And further, “[t]he

interpretation of the federal law at issue here is

further informed by a strong presumption against

preemption.” (Ibid.)

2. The Fed/OSHA Preemption

“‘The basic rules of preemption are not in dispute:

Under the supremacy clause of the United States

Constitution (art. VI, cl. 2), Congress has the power to

preempt state law concerning matters that lie within

the authority of Congress. [Citation.] In determining

whether federal law preempts state law, a court’s task

is to discern congressional intent.

[Citation.]

Congress’s express intent in this regard will be found

when Congress explicitly states that it is preempting

state authority. [Citation.] Congress’s implied intent

to preempt is found (i) when it is clear that Congress

intended, by comprehensive legislation, to occupy the

entire field of regulation, leaving no room for the

states to supplement federal law [citation]; (ii) when

compliance with both federal and state regulations is

an impossibility [citation]; or (iii) when state law

“stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of

53a

Congress.” [Citations.]’” (Farm Raised Salmon Cases,

supra, 42 Cal.4th at p. 1087.)

On the matter of workplace safety regulation, the

federal government’s intent to preempt is clear: The

federal Occupational Safety and Health Act of 1970

(29 U.S.C. § 651 et seq; (OSH Act)), and the standards

promulgated thereunder by Fed/OSHA were designed

“‘to assure so far as possible every working man and

woman in the Nation safe and healthful working

conditions.’

[Citation.]

To that end, Congress

authorized the Secretary of Labor to set mandatory

occupational safety and health standards applicable

to all businesses affecting interstate commerce, 29

U.S.C. § 651(b)(3), and thereby brought the Federal

Government into a field that traditionally had been

occupied by the States.” (Gade v. National Solid

Wastes Management Association (1992) 505 U.S. 88,

96 [112 S.Ct. 2374, 120 L.Ed.2d 73] (Gade).)

However, “Congress expressly saved two areas

from federal pre-emption. . . . [T]he Act does not

‘supersede or in any manner affect any workmen’s

compensation law [and] the Act does not ‘prevent any

State agency or court from asserting jurisdiction

under State law over any occupational safety or

health issue with respect to which no [federal]

standard is in effect.’” (Gade, supra, 505 U.S. at pp.

96-97.)

Moreover, Congress also gave states the option of

side-stepping federal preemption entirely, by

allowing any state which “desires to assume

responsibility for development and enforcement

therein of occupational safety and health standards

relating to any occupational safety or health issue [to]

54a

submit a State plan for the development of such

standards and their enforcement.” (29 U.S.C. § 667(b),

italics added; Gade, supra, 505 U.S. at p. 97.) “The

section . . . removes federal preemption so that the

state may exercise its own sovereign powers over

occupational safety and health.” (United Air Lines,

Inc. v. Occupational Safety & Health Appeals Bd.

(1982) 32 Cal.3d 762, 772.)

But “[t]wo prerequisites to such [state] 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). [Citation.]” (California Lab.

Federation v. Occupational Safety & Health Stds. Bd.

(1990) 221 Cal.App.3d 1547, 1551 (California Labor

Federation).) However, if the proposed state plan

incorporates standards which are distinct from the

federal ones, “[t]he Secretary is not required to

approve such a plan unless in her judgment [the

state] ‘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.’” (Id. at

pp. 1551-1552.) The state plan must designate “a

[s]tate agency or agencies as the agency or agencies

responsible for administering the plan throughout the

[s]tate” (29 U.S.C. § 667(c)(1)) and “contain[]

satisfactory assurances that such agency or agencies

have or will have the legal authority and qualified

personnel necessary for the enforcement of such

standards.” (29 U.S.C. § 667(c)(4).)

55a

Further, the Secretary may rescind approval of the

state plan “[w]henever the Secretary finds, after

affording due notice and opportunity for a hearing,

that in the administration of the State plan there is a

failure to comply substantially with any provision of

the State plan (or any assurance contained therein)

. . . .” (29 U.S.C. § 667(f).)

Finally, if the state makes changes to its

occupational safety and health laws, those changes

must be formally incorporated into its approved

workplace safety plan or be preempted. (California

Lab. Federation v. Occupational Safety and Health

Stds. Bd., supra, 221 Cal.App.3d at p. 1559 [writ

issued to compel the Department of Industrial

Relations to formally incorporate the provisions of

Proposition 65 into its plan, and submit it to the

Secretary for approval, to avoid preemption of those

provisions as applied to the workplace]; see 29 C.F.R.

§ 1952.175, listing federally approved changes made

to California’s approved plan.)

3. The Cal/OSHA Workplace Safety Plan

As explained in California Labor Federation, “In

1973, the Legislature enacted the California

Occupational Safety and Health Act (Cal/OSHA).

[Citation.]

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,

56a

1970.’ (Stats. 1973, ch. 993, § 107, pp. 1954-1955.)”

(California Lab. Federation v. Occupational Safety

and Health Stds. Bd., supra, 221 Cal.App.3d at

p. 1552.)

The federal regulation approving California’s

workplace safety plan is detailed, and describes the

plan as incorporating an enforcement component that

includes “prompt notice to employers and employees

of alleged violations of standards and abatement

requirements, effective remedies against employers,

and the right to review alleged violations, abatement

periods, and proposed penalties with opportunity for

employee participation in the review proceedings . . . .”

(29 C.F.R. 1952.170(c), italics added.) The approval

regulation also specifies “[t]he State’s program will be

enforced by the Division of Industrial Safety of the

Department

of

Industrial

Relations”

and

“[a]dministrative

adjudications

will

be

the

responsibility of the California Occupational Safety

and Health Appeals Board.” (29 C.F.R. 1952.170(a),

italics added.) The regulation does allow other

agencies to be involved in the enforcement effort, but

requires that “[i]nter-agency agreements to provide

technical support to the program will be fully

functioning within 1 year of plan approval” (29 C.F.R.

§ 1952.173(d).) It then confirms, pursuant to that

requirement, that “formal interagency agreements

were negotiated and signed between the Department

of Industrial Relations and the State Department of

Health (June 28, 1973) and between the State

Department of Industrial Relations and the State

Fire Marshal (August 14, 1973).”

(29 C.F.R.

§ 1952.174(b).)

57a

That plan description is entirely consistent with

Labor Code section 144, subdivision (a), which

expressly requires that “[t]he authority of any agency,

department, division, bureau or any other political

subdivision other than the Division of Occupational

Safety and Health to assist in the administration or

enforcement of any occupational safety or health

standard, order, or rule adopted pursuant to this

chapter shall be contained in a written agreement

with the Department of Industrial Relations or an

agency authorized by the department to enter into such

agreement.” (Ibid., italics added.)

4. The UCL

California’s “UCL defines ‘unfair competition’ as

‘any unlawful, unfair or fraudulent business act or

practice and unfair, deceptive, untrue or misleading

advertising.’

[Citation.]

By proscribing ‘any

unlawful’ business act or practice (ibid.), the UCL

‘“borrows”’ rules set out in other laws and makes

violations of those rules independently actionable.”

(Zhang v. Superior Court (2013) 57 Cal.4th 364, 370.)

Actions for relief under the UCL may be initiated

by a public prosecutor. (Bus. & Prof. Code, § 17204.)

Available remedies for violation of the UCL include

(1) restitution and injunctive relief, which can be

pursued by either a public prosecutor or a private

party who has suffered injury in fact, or (2) civil

penalties, which can only be pursued by a public

prosecutor. (Bus. & Prof. Code, §§ 17203, 17206, subd.

(a).) These UCL remedies are “cumulative . . . to the

remedies or penalties available under all other laws

of this state.” (Bus. & Prof. Code, § 17205.)

58a

The purpose of the UCL is to “provide[] an

equitable means through which both public

prosecutors and private individuals can bring suit to

prevent unfair business practices and restore money

or property to victims of these practices. . . . [T]he

‘overarching legislative concern [was] to provide a

streamlined procedure for the prevention of ongoing

or threatened acts of unfair competition.’ [Citation.]

Because of this objective, the remedies provided are

limited.” (Korea Supply Co. v. Lockheed Martin Corp.

(2003) 29 Cal.4th 1134, 1150.)

5. Preemption of the UCL Causes of Action in This

Case

Our assessment of whether the district attorney’s

UCL causes of action are preempted by federal law

begins with the observation that the UCL was

enacted in 1977 (Stats. 1977, ch. 299, § 1, p. 1202),

which is after the Secretary initially approved

California’s workplace safety plan. Hence, there is no

basis to infer that reliance on the UCL, in its current

form, could have been contemplated by the Secretary

as part of the initial decision approving California’s

plan. And while the district attorney points out that

former section 3370.1, which was in effect from 1972

to 1977 (added by stats. 1972, ch. 1004, § 2, p. 2021;

repealed by stats. 1977, ch. 299, §§ 3, 4, p. 1204.) also

provided for imposition of a similar civil penalty based

on acts of unfair competition, he makes no claim that

the availability of such a penalty, or its potential use

in connection with violations of workplace safety

laws, was ever brought to the attention of the

Secretary in connection with California’s plan.

59a

Indeed, after the Supreme Court’s transfer of this

case back to us, with directions to reconsider our

decision in light of former section 3370.1, we

requested that the parties provide us with

supplemental briefs addressing that specific issue, as

well as whether former section 3370.1 was ever

actually applied to penalize unfair competition

arising out of violations of workplace safety laws

(either before or after California’s workplace safety

plan was approved in 1973).

In his brief, the district attorney first concedes

“[t]here are insufficient historical records” to

demonstrate that former section 3370.1 was ever

relied upon by prosecutors to penalize unfair

competition arising out of violations of the workplace

safety laws prior to 1973, when the Secretary

approved California’s workplace safety plan.

And while the district attorney does claim that

prosecutors relied on former section 3370.1 to

penalize unfair competition arising out of violations of

the workplace safety laws after the Secretary’s 1973

approval of California’s plan, he supports that

assertion solely by referencing a record of nonspecific

“civil actions taken by prosecutors following referrals

from the [Division of Occupational Safety and

Health’s Bureau of Investigations]” which even he

acknowledges dates back only to 1995—i.e., 18 years

after former section 3370.1 was superseded by the

current UCL in 1977. Thus, that evidence, even if it

were otherwise appropriate for us to consider, would

not support the district attorney’s contention.

Finally, in response to our query about whether

former section 3370.1 was ever brought to the

60a

attention of the Secretary in connection with

California’s proposed workplace safety plan, the

district attorney argues that the Secretary is

presumed to have known about it. That assertion,

however, suffers from several analytical flaws. First,

the presumption the district attorney relies upon is

that “[t]he legislature is presumed to know existing

law.” (Arthur Andersen v. Superior Court (1998) 67

Cal.App.4th 1481, 1500.) But that rule refers to our

own state legislature’s presumed knowledge of

existing California law when it enacts a new statute.

It does not establish that members of the federal

government’s executive branch are also presumed to

know the entirety of California law—let alone how

California’s laws of general application might be

employed to address workplace safety issues.

Second, the district attorney suggests the

Secretary would have been aware of the relevance of

former section 3370.1 to our state’s workplace safety

plan through our Supreme Court’s decision in Barquis

v. Merchants Collection Assn. (1972) 7 Ca1.3d. 94

(Barquis). But that case does not address the

potential use of unfair competition law in connection

with regulating workplace safety. Instead, the court

was concerned with the wholly unrelated issue of

whether a collection agency’s alleged practice of

knowingly and willfully filing actions in improper

counties would qualify as an unlawful business

practice. In the course of deciding that issue, the

court merely notes that California’s unfair

competition law was amended in 1963, “to add the

word ‘unlawful’ to the types of wrongful business

conduct that could be enjoined.” (Id. at p. 112.) The

61a

court then adds that “[a]lthough the legislative

history of [the 1963] amendment is not particularly

instructive, nevertheless, as one commentator has

noted ‘it is difficult to see any other purpose than to

extend the meaning of unfair competition to anything

that can properly be called a business practice and

that at the same time is forbidden by law.’ (Note,

Unlawful Agricultural Working Conditions as

Nuisance or Unfair Competition (1968) 19 Hastings

L.J. 398, 408-409.)” (Id. at pp. 112-113, fn. omitted.)

It is that commentator (a second year law student)—

not the Supreme Court—who suggests in the cited

law review article that California’s unfair competition

law might also be employed to address unlawful

working conditions.

The Supreme Court itself

expresses no opinion on that issue. Consequently

Barquis cannot be viewed as a basis for imputing

presumptive knowledge to the Secretary, back in 1973,

that former section 3370.1 could be relied upon as a

basis for imposing additional penalties on employers

that violate workplace safety laws.

And third, even if we agreed the Secretary could

fairly be taxed with presumptive knowledge that

former section 3370.1 might be relied upon by

prosecutors to impose additional penalties on

employers that violate California’s workplace safety

laws, we would still conclude that such knowledge is

insufficient to support an inference that the Secretary

had approved the imposition of those penalties as part

of California’s plan. As we have explained, a state

seeking to exempt itself from the federal preemption

over workplace safety regulation must specifically

inform the Secretary of its proposed plan, detailing

62a

both the “standards [to be employed] and their

enforcement.” (29 U.S.C. § 667(b), italics added; Gade,

supra, 505 U.S. at p. 97.) That requirement cannot be

fulfilled by simply asserting the Secretary is

presumed to be familiar with the entirely of the

California law and to understand how that law might

be employed in connection with regulating workplace

safety.

If it were, the Secretary’s presumed

knowledge would effectively relieve California of any

obligation to affirmatively disclose its plan.

Rather than claiming that reliance on UCL

penalties as an additional remedy for wrongs

associated with workplace safety violations was ever

specifically included in California’s approved plan,

the district attorney simply relies on the “strong

presumption against preemption” and argues Solus

failed to establish Congress had any specific intention

of “bar[ring] the People’s prosecution” of these UCL

causes of action. The district attorney asserts that the

underlying violations of the workplace safety laws are

“properly within the jurisdiction of the State of

California to remedy” and “[a]s such, these violations

are the proper subject matter” for him to prosecute as

authorized by California law under the UCL. We find

these contentions unpersuasive.

As we have already explained, Congress’s

intention to preempt essentially the entire field of

workplace safety regulation (other than workers’

compensation) was made clear when it passed the

OSH Act. (Gade, supra, 505 U.S. at p. 96.) While the

OSH Act does not preempt states from “‘asserting

jurisdiction under [s]tate law over any occupational

safety or health issue with respect to which no

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[federal] standard is in effect’” (id. at p. 97, italics

added), the district attorney has made no claim that

this case involves any such discrete issue.

Consequently, we conclude federal preemption has

been established.

The district attorney relies on Farm Raised

Salmon Cases, supra, 42 Cal.4th 1077, to support its

assertion that preemption is not established here.

But that case is distinguishable. As our Supreme

Court explained, the federal law at issue in Farm

Raised Salmon Cases preempted only those state laws

that “‘establish . . . any requirement for the labeling

of food . . . that is not identical to the requirement of’”

federal law. (Id. at p. 1086.) Thus, the court

concluded that to the extent California’s laws

established requirements which were identical to

those established by federal law, its enforcement of

those laws was not preempted. (Id. at p. 1083

[“plaintiffs’ claims for deceptive marketing of food

products are predicated on state laws establishing

independent state disclosure requirements ‘identical

to’ the disclosure requirements imposed by the FDCA,

something Congress explicitly approved”].) The same

cannot be said here.

By contrast to the federal law at issue Farm

Raised Salmon Cases, the OSH Act does not allow

states to independently establish workplace safety

laws, even if those laws mirror federal law

requirements.

Instead, the states’ authority to

establish and enforce any laws in this area is expressly

conditioned on submission of a proposed state plan to

the Secretary—a plan which reflects not only the

state’s establishment of appropriate workplace safety

64a

requirements, but also the manner in which those

requirements will be enforced and the remedies

provided—and the Secretary’s approval of that

specific plan. In fact, unlike the federal law at issue

in Farm Raised Salmon Cases, the OSH Act actually

contemplates that states could deviate from

established federal standards, as long as those

deviations are approved by the Secretary. The

Secretary retains explicit discretion to determine

whether a state plan is appropriate, and to reject any

state plan that, in the Secretary’s view, incorporates

standards which are either less effective than those

established by the OSH Act or unduly burdensome to

interstate commerce.

It is this retained federal power to approve or

disapprove the state’s laws which also distinguishes

the federal preemption scheme at issue here from the

one recently considered by our Supreme Court in Rose

v. Bank of America (2013) 57 Cal.4th 390. In Rose,

the issue was whether a private party’s cause of

action for restitution and injunctive relief under the

UCL, based upon the defendant’s alleged violations of

the federal Truth in Savings Act (TISA)—a law which

did not itself authorize any private enforcement—was

preempted. The Supreme Court held it was not,

because when Congress repealed TISA’s provision

allowing for private enforcement, it also “explicitly

approved the enforcement of state laws ‘relating to

the disclosure of yields payable or terms for

accounts . . . except to the extent that those laws are

inconsistent with the provisions of this subtitle, and

then only to the extent of the inconsistency.’” (Id. at

p. 395.) The court then concluded that a private right

65a

of action under the UCL, based on an alleged violation

of TISA, was not inconsistent with the provisions of

TISA. (Ibid.)

In this case, however, freedom from federal

preemption hinges not only on whether a state’s

proposed laws are “‘at least as effective’ as those

contained in the OSH act—a standard we might be

able to assess—but also on whether they are

“incorporated in a state plan submitted to and

approved by the federal Secretary of Labor (the

Secretary).”

(California Lab. Federation v.

Occupational Safety and Health Stds. Bd., supra, 221

Cal.App.3d at p. 1551.) That latter requirement is not

one we are empowered to dispose of.

Because the OSH Act allows a state to avoid

federal preemption only if it obtains federal approval

of its own plan, it necessarily follows that a state has

no authority to enact and enforce laws governing

workplace safety which fall outside of that approved

plan. The OSH Act expressly requires a state to

comply with its approved plan, and allows the

Secretary to rescind approval of the plan if the state

fails to do so. (29 U.S.C., § 667(f).) Under this

statutory scheme, we conclude the approved state

plan operates, in effect, as a “safe harbor” within

which the state may exercise its jurisdiction. It is only

when the state stays within the terms of its approved

plan, that its actions will not be preempted by federal

law.

The district attorney’s alternative argument is

that even assuming preemption is established in the

first instance, these UCL causes of action must be

viewed as falling within the safe harbor created by

66a

California’s approved state plan. As he explains, “the

California worker safety penalty statutes and

regulations [underlying these UCL claims] are fully

approved as part of California’s State Plan and any

action to enforce such laws is fully consistent with the

goals of the federal mandate.” We cannot agree.

First, while it may be true that the penalty

statutes and regulations underlying these UCL

claims are included in the approved state plan, the

district attorney is not seeking to directly enforce

those approved penalties and regulations. Instead, he

is seeking to enforce separate penalties under the UCL

which have not been approved for application in the

otherwise preempted area of workplace safety

regulation.

Second, the standard for assessing

whether reliance on the UCL as a tool of enforcing

workplace safety laws is preempted is not whether we

believe it appears “consistent with the goals” of the

OSH Act to do so. It is the Secretary, not this court,

which retains the discretion to determine whether

changes in the state’s already approved enforcement

plan are appropriate. Stated simply, avoidance of

federal preemption is dependent upon the Secretary’s

approval, not ours.

And finally, we reject the district attorney’s

implicit assertion that any opportunity for enhanced

enforcement of workplace safety regulations would

necessarily be met with the Secretary’s approval. As

we have already noted, one of the grounds for the

Secretary’s rejection of a plan is the determination

that some distinct state workplace safety provision

would unduly burden interstate commerce. Indeed,

as Solus points out, after the court in California Labor

67a

Federation issued a writ compelling the Department

of Industrial Relations to formally incorporate the

provisions of Proposition 65 into its workplace safety

plan, so as to avoid preemption (California Lab.

Federation v. Occupational Safety and Health Stds.

Bd., supra, 221 Cal.App.3d 1547), the Secretary’s

approval of the new law for application in the

workplace actually limited the scope of private

enforcement that would otherwise have been

permitted. As reflected in the analysis underlying

that decision, “[m]any [who submitted responses to

the Secretary’s request for comment on the proposed

modification] are companies which have experienced,

or fear experiencing, private enforcement lawsuits

under Proposition 65.” (62 Fed.Reg. 31159, 31162

(June 6, 1997).) And after consideration of the

concerns expressed by those commenters, the

Secretary concluded that private enforcement of the

substantive provisions included in Proposition 65

would be permissible only if restricted to in-state

manufacturers. (62 Fed.Reg. 31159, 31178 (June 6,

1997).)

Here, the district attorney proposes to utilize the

UCL as a means of imposing truly massive penalties

against Solus, based specifically upon its alleged

violation of workplace safety laws. Significantly, and

in contrast to Rose, this is not merely a private UCL

cause of action, brought by a litigant who has suffered

injury in fact as a result of defendant’s anticompetitive conduct, and who seeks restitution for

that injury and to enjoin such conduct in the future.

This is instead an action, available only to a

representative of the state, which is expressly

68a

intended to penalize a party for past misconduct.

(Bus. & Prof. Code, § 17206, subd. (a) [civil penalties

“shall be assessed and recovered in a civil action

brought in the name of the people of the State of

California by the Attorney General, by any district

attorney, by any county counsel . . . or . . . by a city

prosecutor”].)

Under each of these two UCL causes of action, the

district attorney seeks to recover penalties of up to

$2,500 per day, per employee, for the period from

November 29, 2007 to March 19, 2009.

That

represents a potential penalty in excess of $1 million

per employee, for each cause of action. And of course,

the penalties available under the UCL are

cumulative, and thus would be assessed in addition

to whatever penalties were directly provided for

under the Labor Code (and thus directly approved by

the Secretary as part of California’s state plan.) By

contrast, as the district attorney acknowledges, the

total penalty actually imposed by Cal/OSHA in the

stayed administrative action arising out of these same

violations was under $100,000.

It is not our place to assess whether such an

extraordinary jump in the potential civil penalty an

employer such as Solus might incur for workplace

safety violations through application of the UCL is a

good idea. For our purposes, it is enough to note that

it is an extraordinary jump. And because it is, we

conclude it will have to be the Secretary, and not this

court, who assesses its merits.

In light of our determination that state regulation

of workplace safety standards is explicitly preempted

by federal law under the OSH Act, and that

69a

consequently California is entitled to exercise its

regulatory power only in accordance with the terms of

its federally approved workplace safety plan, we

conclude the district attorney cannot presently rely on

the UCL to provide an additional means of penalizing

an employer for its violation of workplace safety

standards.

DISPOSITION

The petition for writ of mandate is granted. The

superior court is directed to vacate the portion of its

October 3, 2012 order which overruled Solus’s

demurrer to the district attorney’s third and fourth

causes of action, and enter a new order sustaining

Solus’s demurrer to those two causes of action. Solus

is to recover its costs in this writ proceeding.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

BEDSWORTH, J.

THOMPSON, J.

70a

APPENDIX C

IN THE SUPERIOR COURT OF THE

STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF ORANGE

CIVIL COMPLEX CENTER

____________________

THE PEOPLE OF THE

STATE OF CALIFORNIA,

Plaintiff,

v.

SOLUS INDUSTRIAL INNOVATIONS,

LLC; EMERSON POWER TRANSMISSION

CORPORATION; EMERSON ELECTRIC

CO.; and DOES 1-10,

Defendant.

____________________

Case No. 30-2012-00581868-CU-MC-CXC

[Filed Nov. 14, 2012]

____________________

JOINTLY SUBMITTED ORDER GRANTING EX

PARTE APPLICATION FOR ORDER UNDER

CODE OF CIVIL PROCEDURE SECTION 166.1

____________________

The Court having read and considered the Ex

Parte application (the “Application”) of defendants

Solus Industrial Innovations, LLC, Emerson Power

Transmission Corporation and Emerson Electric Co.

(collectively, “Defendants”) for an Order under Code

71a

of Civil Procedure section 166.1 with respect to the

preemption issue raised in Defendants’ demurrer to

the Third and Fourth Causes of Action in the

Complaint of plaintiff the People of the State of

California (“Plaintiff”), having read and considered

Plaintiff’s Opposition to the Application and

Plaintiff’s request therein for an Order under Code of

Civil Procedure section 666.1 with respect to the

Court’s ruling sustaining Defendants’ demurrer as to

the First and Second Causes of Action in the

Complaint, and good cause appearing,

IT IS HEREBY ORDERED that the Application is

granted.

The Court hereby indicates that in its belief the

federal preemption issue raised in Defendants’

demurrer as to the Third and Fourth Causes of Action

in the Complaint presents a controlling question of

law as to which there are substantial grounds for

difference of opinion and that appellate resolution of

this issue may materially advance the conclusion of

the litigation.

The Court further indicates that in its belief the

issue of Plaintiff’s standing to bring the First and

Second Causes of Action in the Complaint also

presents a controlling question of law as to which

there are substantial grounds for difference of opinion

and that appellate resolution of this issue may

materially advance the conclusion of the litigation.

Dated: November 14, 2012

/s/

Kim G. Dunning

JUDGE OF THE SUPERIOR COURT

72a

APPENDIX D

SUPERIOR COURT OF CALIFORNIA,

COUNTY OF ORANGE

CIVIL COMPLEX CENTER

____________________

MINUTE ORDER

____________________

The People of the State of California

vs.

Solus Industrial Innovations, LLC.

____________________

DATE: 10/03/2012

JUDICIAL OFFICER PRESIDING:

Kim G. Dunning

CASE NO: 30-2012-00581868-CU-MC-CXC

____________________

APPLICATION TO ADMIT PATRICK D. MCVEY

PRO HAC VICE

DEMURRER TO COMPLAINT

MOTION

TO

COMPLAINT

STRIKE

PORTIONS

OF

Tentative Ruling posted on the Internet.

Application to Admit Patrick D. McVey Pro Hac Vice is

GRANTED

73a

Application of Patrick D. McVey for admission to the

Bar of this court Pro Hac Vice and appear as counsel

for defendants Emerson Electric Co., Emerson

Power Transmission Corporation, and Solus

Industrial Innovations, LLC is granted.

As to the Demurrer, the Court sustains without

leave to amend as to the 1st and 2nd causes of

action. Overruled as to the 3rd and 4th causes

of action.

The Court denies the Motion to Strike the

paragraphs that are identified in the 3rd and

4th causes of action.

The Court is rejecting

Preemption argument.

defendant’s

Federal

Plaintiff to amend by 10/17/12.

Status Conference is currently set for 10/24/12. If all

counsel agree to a Status Conference continuance

date, they can notify the courtroom.

Court orders Frederick D. Friedman, counsel for the

defendant to give notice.

74a

APPENDIX E

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS

1. U.S. Const. art. VI, cl. 2 provides:

This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof; and all

Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme

Law of the Land; and the Judges in every State shall

be bound thereby, any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding.

2. 29 U.S.C. § 653 provides in pertinent part:

Geographic applicability; judicial enforcement;

applicability to existing standards; report to Congress

on duplication and coordination of Federal laws;

workmen’s compensation law or common law or

statutory rights, duties, or liabilities of employers and

employees unaffected

*

*

*

*

*

*

(b)

(4) Nothing in this chapter shall be construed to

supersede or in any manner affect any workmen’s

compensation law or to enlarge or diminish or affect

in any other manner the common law or statutory

rights, duties, or liabilities of employers and

employees under any law with respect to injuries,

diseases, or death of employees arising out of, or in

the course of, employment.

75a

3. 29 U.S.C. § 655 provides in pertinent part:

Standards

*

*

*

(b) Procedure for promulgation, modification, or

revocation of standards

The Secretary may by rule promulgate, modify, or

revoke any occupational safety or health standard in

the following manner:

(1) Whenever the Secretary, upon the basis of

information submitted to him in writing by an

interested person, a representative of any

organization of employers or employees, a nationally

recognized standards-producing organization, the

Secretary of Health and Human Services, the

National Institute for Occupational Safety and

Health, or a State or political subdivision, or on the

basis of information developed by the Secretary or

otherwise available to him, determines that a rule

should be promulgated in order to serve the objectives

of this chapter, the Secretary may request the

recommendations of an advisory committee appointed

under section 656 of this title. The Secretary shall

provide such an advisory committee with any

proposals of his own or of the Secretary of Health and

Human Services, together with all pertinent factual

information developed by the Secretary or the

Secretary of Health and Human Services, or

otherwise available, including the results of research,

demonstrations, and experiments. An advisory

committee shall submit to the Secretary its

recommendations regarding the rule to be

promulgated within ninety days from the date of its

76a

appointment or within such longer or shorter period

as may be prescribed by the Secretary, but in no event

for a period which is longer than two hundred and

seventy days.

(2) The Secretary shall publish a proposed rule

promulgating, modifying, or revoking an occupational

safety or health standard in the Federal Register and

shall afford interested persons a period of thirty days

after publication to submit written data or comments.

Where an advisory committee is appointed and the

Secretary determines that a rule should be issued, he

shall publish the proposed rule within sixty days after

the submission of the advisory committee’s

recommendations or the expiration of the period

prescribed by the Secretary for such submission.

(3) On or before the last day of the period provided

for the submission of written data or comments under

paragraph (2), any interested person may file with the

Secretary written objections to the proposed rule,

stating the grounds therefor and requesting a public

hearing on such objections. Within thirty days after

the last day for filing such objections, the Secretary

shall publish in the Federal Register a notice

specifying the occupational safety or health standard

to which objections have been filed and a hearing

requested, and specifying a time and place for such

hearing.

(4) Within sixty days after the expiration of the

period provided for the submission of written data or

comments under paragraph (2), or within sixty days

after the completion of any hearing held under

paragraph (3), the Secretary shall issue a rule

promulgating, modifying, or revoking an occupational

77a

safety or health standard or make a determination

that a rule should not be issued. Such a rule may

contain a provision delaying its effective date for such

period (not in excess of ninety days) as the Secretary

determines may be necessary to insure that affected

employers and employees will be informed of the

existence of the standard and of its terms and that

employers affected are given an opportunity to

familiarize themselves and their employees with the

existence of the requirements of the standard.

*

*

*

4. 29 U.S.C. § 667 provides:

State jurisdiction and plans

(a) Assertion of State standards in absence of

applicable Federal standards

Nothing in this chapter shall prevent any State

agency or court from asserting jurisdiction under

State law over any occupational safety or health issue

with respect to which no standard is in effect under

section 655 of this title.

(b) Submission of State plan for development and

enforcement of State standards to preempt applicable

Federal standards

Any State which, at any time, desires to assume

responsibility for development and enforcement

therein of 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.

78a

(c) Conditions for approval of plan

The Secretary shall approve the plan submitted by

a State under subsection (b), or any modification

thereof, if such plan in his judgment-(1) designates a State agency or agencies as the

agency or agencies responsible for administering

the plan throughout the State,

(2) provides for the development and

enforcement of safety and health standards

relating to one or more safety or health issues,

which standards (and the enforcement of which

standards) are or will be at least as effective in

providing safe and healthful employment and

places of employment as the standards

promulgated under section 655 of this title which

relate to the same issues, and which 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,

(3) provides for a right of entry and inspection

of all workplaces subject to this chapter which is

at least as effective as that provided in section 657

of this title, and includes a prohibition on advance

notice of inspections,

(4) contains satisfactory assurances that such

agency or agencies have or will have the legal

authority and qualified personnel necessary for

the enforcement of such standards,

(5) gives satisfactory assurances that such

State will devote adequate funds to the

79a

administration

standards,

and

enforcement

of

such

(6) contains satisfactory assurances that such

State will, to the extent permitted by its law,

establish and maintain an effective and

comprehensive occupational safety and health

program applicable to all employees of public

agencies of the State and its political subdivisions,

which program is as effective as the standards

contained in an approved plan,

(7) requires employers in the State to make

reports to the Secretary in the same manner and

to the same extent as if the plan were not in effect,

and

(8) provides that the State agency will make

such reports to the Secretary in such form and

containing such information, as the Secretary

shall from time to time require.

(d) Rejection of plan; notice and opportunity for

hearing

If the Secretary rejects a plan submitted under

subsection (b), he shall afford the State submitting

the plan due notice and opportunity for a hearing

before so doing.

(e) Discretion of Secretary to exercise authority over

comparable standards subsequent to approval of

State plan; duration; retention of jurisdiction by

Secretary upon determination of enforcement of plan

by State

After the Secretary approves a State plan

submitted under subsection (b), he may, but shall not

80a

be required to, exercise his authority under sections

657, 658, 659, 662, and 666 of this title with respect

to comparable standards promulgated under section

655 of this title, for the period specified in the next

sentence. The Secretary may exercise the authority

referred to above until he determines, on the basis of

actual operations under the State plan, that the

criteria set forth in subsection (c) are being applied,

but he shall not make such determination for at least

three years after the plan’s approval under subsection

(c). Upon making the determination referred to in the

preceding sentence, the provisions of sections

654(a)(2), 657 (except for the purpose of carrying out

subsection (f) of this section), 658, 659, 662, and 666

of this title, and standards promulgated under section

655 of this title, shall not apply with respect to any

occupational safety or health issues covered under the

plan, but the Secretary may retain jurisdiction under

the above provisions in any proceeding commenced

under section 658 or 659 of this title before the date

of determination.

(f) Continuing evaluation by Secretary of State

enforcement of approved plan; withdrawal of

approval of plan by Secretary; grounds; procedure;

conditions for retention of jurisdiction by State

The Secretary shall, on the basis of reports

submitted by the State agency and his own

inspections make a continuing evaluation of the

manner in which each State having a plan approved

under this section is carrying out such plan.

Whenever the Secretary finds, after affording due

notice and opportunity for a hearing, that in the

administration of the State plan there is a failure to

81a

comply substantially with any provision of the State

plan (or any assurance contained therein), he shall

notify the State agency of his withdrawal of approval

of such plan and upon receipt of such notice such plan

shall cease to be in effect, but the State may retain

jurisdiction in any case commenced before the

withdrawal of the plan in order to enforce standards

under the plan whenever the issues involved do not

relate to the reasons for the withdrawal of the plan.

(g) Judicial review of Secretary’s withdrawal of

approval or rejection of plan; jurisdiction; venue;

procedure; appropriate relief; finality of judgment

The State may obtain a review of a decision of the

Secretary withdrawing approval of or rejecting its

plan by the United States court of appeals for the

circuit in which the State is located by filing in such

court within thirty days following receipt of notice of

such decision a petition to modify or set aside in whole

or in part the action of the Secretary. A copy of such

petition shall forthwith be served upon the Secretary,

and thereupon the Secretary shall certify and file in

the court the record upon which the decision

complained of was issued as provided in section 2112

of title 28. Unless the court finds that the Secretary's

decision in rejecting a proposed State plan or

withdrawing his approval of such a plan is not

supported by substantial evidence the court shall

affirm the Secretary’s decision. The judgment of the

court shall be subject to review by the Supreme Court

of the United States upon certiorari or certification as

provided in section 1254 of title 28.

82a

(h) Temporary enforcement of State standards

The Secretary may enter into an agreement with

a State under which the State will be permitted to

continue to enforce one or more occupational health

and safety standards in effect in such State until final

action is taken by the Secretary with respect to a plan

submitted by a State under subsection (b) of this

section, or two years from December 29, 1970,

whichever is earlier.

5. 29 C.F.R. § 1902.3 provides in pertinent part:

Specific criteria.

(a) General. A State plan must meet the specific

criteria set forth in this section.

*

*

*

(d) Enforcement. (1) The State plan shall provide a

program for the enforcement of the State standards

which is, or will be, at least as effective as that

provided in the Act, and provide assurances that the

State’s enforcement program will continue to be at

least as effective as the Federal program. Indices of

the effectiveness of a State’s enforcement plan against

which the Assistant Secretary will measure the State

plan in determining whether it is approvable are set

forth in § 1902.4(c).

(2) The State plan shall require employers to

comply with all applicable State occupational safety

and health standards covered by the plan and all

applicable rules issued thereunder, and employees to

83a

comply with all standards, rules, and orders

applicable to their conduct.

*

*

*

6. 29 C.F.R. § 1902.4 provides in pertinent part:

Indices of effectiveness.

(a) General. In order to satisfy the requirements of

effectiveness under § 1902.3 (c)(1) and (d)(1), the State

plan shall:

(1) Establish the same standards, procedures,

criteria and rules as have been established by the

Assistant Secretary under the Act, or;

(2) Establish alternative standards, procedures,

criteria, and rules which will be measured against

each of the indices of effectiveness in paragraphs (b)

and (c) of this section to determine whether the

alternatives are at least as effective as the Federal

program with respect to the subject of each index. For

each index the State must demonstrate by the

presentation of factual or other appropriate

information that its plan is or will be at least as

effective as the Federal program.

*

*

*

(c) Enforcement. (1) The indices for measurement

of a State plan with regard to enforcement follow in

paragraph (c)(2) of this section. The Assistant

Secretary will determine whether the State plan

satisfies the requirements of effectiveness with

regard to each index as provided in paragraph (a) of

this section.

84a

(2) The Assistant Secretary will determine

whether the State plan:

(i) Provides for inspection of covered workplaces in

the State, including inspections in response to

complaints, where there are reasonable grounds to

believe a hazard exists, in order to assure, so far as

possible, safe and healthful working conditions for

covered employees, by such means as providing for

inspections under conditions such as those provided

in section 8 of the Act.

(ii) Provides an opportunity for employees and

their representatives, before, during, and after

inspections, to bring possible violations to the

attention of the State agency with enforcement

responsibility in order to aid inspections, by such

means as affording a representative of the employer

and a representative authorized by employees an

opportunity to accompany the State representative

during the physical inspection of the workplace, or

where there is no authorized representative, by

providing for consultation by the State representative

with a reasonable number of employees.

(iii) Provides for the notification of employees, or

their representatives, when the State decides not to

take compliance action as a result of violations alleged

by such employees or their representatives and

further provides for informal review of such decisions,

by such means as written notification of decisions not

to take compliance action and the reasons therefor,

and procedures for informal review of such decisions

and written statements of the disposition of such

review.

85a

(iv) Provides that employees be informed of their

protections and obligations under the Act, including

the provisions of applicable standards, by such means

as the posting of notices or other appropriate sources

of information.

(v) Provides necessary and appropriate protection

to an employee against discharge or discrimination in

terms and conditions of employment because he has

filed a complaint, testified, or otherwise acted to

exercise rights under the Act for himself or others, by

such means as providing for appropriate sanctions

against the employer for such actions and by

providing for the withholding, upon request, of the

names of complainants from the employer.

(vi) Provides that employees have access to

information on their exposure to toxic materials or

harmful physical agents and receive prompt

information when they have been or are being

exposed to such materials or agents in concentrations

or at levels in excess of those prescribed by the

applicable safety and health standards, by such

means as the observation by employees of the

monitoring or measuring of such materials or agents,

employee access to the records of such monitoring or

measuring, prompt notification by an employer to any

employee who has been or is being exposed to such

agents or materials in excess of the applicable

standards, and information to such employee of

corrective action being taken.

(vii) Provides procedures for the prompt restraint

or elimination of any conditions or practices in

covered places of employment which could reasonably

be expected to cause death or serious physical harm

86a

immediately or before the imminence of such danger

can be eliminated through the enforcement

procedures otherwise provided for in the plan, by such

means as immediately informing employees and

employers of such hazards, taking steps to obtain

immediate abatement of the hazard by the employer,

and where appropriate, authority to initiate

necessary legal proceedings to require such

abatement.

(viii) Provides adequate safeguards to protect

trade secrets, by such means as limiting access to

such trade secrets to authorized State officers or

employees concerned with carrying out the plan and

by providing for the issuance of appropriate orders to

protect the confidentiality of trade secrets.

(ix) Provides that the State agency (or agencies)

will have the necessary legal authority for the

enforcement of standards, by such means as

provisions for appropriate compulsory process to

obtain necessary evidence or testimony in connection

with inspection and enforcement proceedings.

(x) Provides for prompt notice to employers and

employees when an alleged violation of standards has

occurred, including the proposed abatement

requirements, by such means as the issuance of a

written citation to the employer and posting of the

citation at or near the site of the violation; further

provides for advising the employer of any proposed

sanctions, by such means as a notice to the employer

by certified mail within a reasonable time of any

proposed sanctions.

87a

(xi) Provides effective sanctions against employers

who violate State standards and orders, such as those

set forth in the Act, and in 29 CFR 1903.15(d).

(xii) Provides for an employer to have the right of

review of violations alleged by the State, abatement

periods, and proposed penalties and for employees or

their representatives to have an opportunity to

participate in review proceedings, by such means as

providing for administrative or judicial review, with

an opportunity for a full hearing on the issues.

(xiii) Provides that the State will undertake

programs to encourage voluntary compliance by

employers and employees by such means as

conducting training and consultation with employers

and employees.

*

*

*

7. 29 C.F.R. § 1952.7 provides:

California.

(a) The California State plan received initial

approval on May 1, 1973.

(b) OSHA entered into an operational status

agreement with California.

(c) The plan covers all private-sector employers

and employees, with several notable exceptions, as

well as State and local government employers and

employees, within the State. For current information

on these exceptions and for additional details about

the plan, please visit http://www.osha.gov/dcsp/

osp/stateprogs/california.html.

88a

8. 29 C.F.R. § 1953.3 provides:

General policies and procedures.

(a) Effectiveness of State plan changes under State

law. Federal OSHA approval of a State plan under

section 18(b) of the OSH Act in effect removes the

barrier of Federal preemption, and permits the State

to adopt and enforce State standards and other

requirements regarding occupational safety or health

issues regulated by OSHA. A State with an approved

plan may modify or supplement the requirements

contained in its plan, and may implement such

requirements under State law, without prior approval

of the plan change by Federal OSHA. Changes to

approved State plans are subject to subsequent OSHA

review. If OSHA finds reason to reject a State plan

change, and this determination is upheld after an

adjudicatory proceeding, the plan change would then

be excluded from the State’s Federally-approved plan.

(b) Required State plan notifications and

supplements. Whenever a State makes a change to its

legislation, regulations, standards, or major changes

to policies or procedures, which affect the operation of

the State plan, the State shall provide written

notification to OSHA. When the change differs from a

corresponding Federal program component, the State

shall submit a formal, written plan supplement.

When the State adopts a provision which is identical

to a corresponding Federal provision, written

notification, but no formal plan supplement, is

required. However, the State is expected to maintain

the necessary underlying State document (e.g.,

legislation or standard) and to make it available for

89a

review upon request. All plan change supplements or

required documentation must be submitted within 60

days of adoption of the change. Submission of all

notifications and supplements may be in electronic

format.

(c) Plan supplement availability. The underlying

documentation for identical plan changes shall be

maintained by the State. Annually, States shall

submit updated copies of the principal documents

comprising the plan, or appropriate page changes, to

the extent that these documents have been revised.

To the extent possible, plan documents will be

maintained and submitted by the State in electronic

format and also made available in such manner.

(d) Advisory opinions. Upon State request, OSHA

may issue an advisory opinion on the approvability of

a proposed change which differs from the Federal

program prior to promulgation or adoption by the

State and submission as a formal supplement.

(e) Alternative procedures. Upon reasonable notice

to interested persons, the Assistant Secretary may

prescribe additional or alternative procedures in

order to expedite the review process or for any other

good cause which may be consistent with the

applicable laws.

9. 29 C.F.R. § 1953.4 provides in pertinent part:

Submission of plan supplements.

*

*

*

(d) State-initiated changes. (1) A State-initiated

change is any change to the State plan which is

undertaken at a State’s option and is not necessitated

90a

by Federal requirements. State-initiated changes

may include legislative, regulatory, administrative,

policy or procedural changes which impact on the

effectiveness of the State program.

(2) A State-initiated change supplement is

required whenever the State takes an action not

otherwise covered by this part that would impact on

the effectiveness of the State program. The State shall

notify OSHA as soon as it becomes aware of any

change which could affect the State’s ability to meet

the approval criteria in parts 1902 and 1956 of this

chapter, e.g., changes to the State’s legislation, and

submit a supplement within 60 days. Other State

initiated supplements must be submitted within 60

days after the change occurred. The State supplement

shall contain a copy of the relevant legislation,

regulation, policy or procedure and documentation on

how the change maintains the “at least as effective as”

status of the plan. If the State fails to notify OSHA of

the change or fails to submit the required supplement

within the specified time period, OSHA shall notify

the State that a supplement is required and set a time

period for submission of the supplement, generally

not to exceed 30 days.

10. Cal. Bus. & Prof. Code § 17200 provides:

As used in this chapter, unfair competition shall

mean and include any unlawful, unfair or fraudulent

business act or practice and unfair, deceptive, untrue

or misleading advertising and any act prohibited by

Chapter 1 (commencing with Section 17500) of Part 3

of Division 7 of the Business and Professions Code.

91a

11. Cal. Bus. & Prof. Code § 17205 provides:

Unless otherwise expressly provided, the remedies

or penalties provided by this chapter are cumulative

to each other and to the remedies or penalties

available under all other laws of this state.

12. Cal. Bus. & Prof. Code § 17206 provides in

pertinent part:

Civil Penalty for Violation of Chapter

(a) Any person who engages, has engaged, or

proposes to engage in unfair competition shall be

liable for a civil penalty not to exceed two thousand

five hundred dollars ($2,500) for each violation, which

shall be assessed and recovered in a civil action

brought in the name of the people of the State of

California by the Attorney General, by any district

attorney, by any county counsel authorized by

agreement with the district attorney in actions

involving violation of a county ordinance, by any city

attorney of a city having a population in excess of

750,000, by any city attorney of any city and county,

or, with the consent of the district attorney, by a city

prosecutor in any city having a full-time city

prosecutor, in any court of competent jurisdiction.

(b) The court shall impose a civil penalty for each

violation of this chapter. In assessing the amount of

the civil penalty, the court shall consider any one or

more of the relevant circumstances presented by any

of the parties to the case, including, but not limited to,

the following: the nature and seriousness of the

misconduct, the number of violations, the persistence

of the misconduct, the length of time over which the

92a

misconduct occurred, the willfulness of the

defendant’s misconduct, and the defendant’s assets,

liabilities, and net worth.

(c) If the action is brought by the Attorney

General, one-half of the penalty collected shall be paid

to the treasurer of the county in which the judgment

was entered, and one-half to the General Fund. If the

action is brought by a district attorney or county

counsel, the penalty collected shall be paid to the

treasurer of the county in which the judgment was

entered. Except as provided in subdivision (e), if the

action is brought by a city attorney or city prosecutor,

one-half of the penalty collected shall be paid to the

treasurer of the city in which the judgment was

entered, and one-half to the treasurer of the county in

which the judgment was entered. The aforementioned

funds shall be for the exclusive use by the Attorney

General, the district attorney, the county counsel, and

the city attorney for the enforcement of consumer

protection laws.

*

*

*

13. Cal. Bus. & Prof. Code § 17500 provides:

It is unlawful for any person, firm, corporation or

association, or any employee thereof with intent

directly or indirectly to dispose of real or personal

property or to perform services, professional or

otherwise, or anything of any nature whatsoever or to

induce the public to enter into any obligation relating

thereto, to make or disseminate or cause to be made

or disseminated before the public in this state, or to

make or disseminate or cause to be made or

disseminated from this state before the public in any

93a

state, in any newspaper or other publication, or any

advertising device, or by public outcry or

proclamation, or in any other manner or means

whatever, including over the Internet, any statement,

concerning that real or personal property or those

services, professional or otherwise, or concerning any

circumstance or matter of fact connected with the

proposed performance or disposition thereof, which is

untrue or misleading, and which is known, or which

by the exercise of reasonable care should be known, to

be untrue or misleading, or for any person, firm, or

corporation to so make or disseminate or cause to be

so made or disseminated any such statement as part

of a plan or scheme with the intent not to sell that

personal property or those services, professional or

otherwise, so advertised at the price stated therein, or

as so advertised. Any violation of the provisions of this

section

is

a

misdemeanor

punishable

by

imprisonment in the county jail not exceeding six

months, or by a fine not exceeding two thousand five

hundred dollars ($2,500), or by both that

imprisonment and fine.

14. Cal. Lab. Code § 50.7 provides in pertinent

part:

(a) 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

94a

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.

*

*

*

15. Cal. Lab. Code § 142 provides:

The Division of Occupational Safety and Health shall

enforce all occupational safety and health standards

adopted pursuant to this chapter, and those

heretofore adopted by the Industrial Accident

Commission or the Industrial Safety Board. General

safety orders heretofore adopted by the Industrial

Accident Commission or the Industrial Safety Board

shall continue to remain in effect, but they may be

amended or repealed pursuant to this chapter.

16. Cal. Lab. Code § 144 provides in pertinent

part:

(a) The authority of any agency, department,

division, bureau or any other political subdivision

other than the Division of Occupational Safety and

Health to assist in the administration or enforcement

of any occupational safety or health standard, order,

or rule adopted pursuant to this chapter shall be

contained in a written agreement with the

Department of Industrial Relations or an agency

95a

authorized by the department to enter into such

agreement.

(b) No such agreement shall deprive the Division

of Occupational Safety and Health or other state

agency to which authority has been delegated of any

power or authority of the state agency.

*

*

*

(e) Nothing in this section shall affect or limit the

authority of any state or local agency as to any matter

other than the enforcement of occupational safety and

health standards adopted by the board; however,

nothing herein shall limit or reduce the authority of

local agencies to adopt and enforce higher standards

relating to occupational safety and health for their

own employees.

17. Cal. Lab. Code § 6307 provides:

The division has the power, jurisdiction, and

supervision over every employment and place of

employment in this state, which is necessary

adequately to enforce and administer all laws and

lawful standards and orders, or special orders

requiring such employment and place of employment

to be safe, and requiring the protection of the life,

safety, and health of every employee in such

employment or place of employment.

18. Cal. Lab. Code § 6315 provides:

(a) There is within the division a Bureau of

Investigations. The bureau is responsible for

directing accident investigations involving violations

of standards, orders, special orders, or Section 25910

96a

of the Health and Safety Code, in which there is a

serious injury to five or more employees, death, or

request for prosecution by a division representative.

The bureau shall review inspection reports involving

a serious violation where there have been serious

injuries to one to four employees or a serious

exposure, and may investigate those cases in which

the bureau finds criminal violations may have

occurred. The bureau is responsible for preparing

cases for the purpose of prosecution, including

evidence and findings.

(b) The division shall provide the bureau with all

of the following:

(1) All initial accident reports.

(2) The division’s inspection report for any

inspection involving a serious violation where there is

a fatality, and the reports necessary for the bureau’s

review required pursuant to subdivision (a).

(3) Any other documents in the possession of the

division requested by the bureau for its review or

investigation of any case or which the division

determines will be helpful to the bureau in its

investigation of the case.

(c) The supervisor of the bureau is the

administrative chief of the bureau, and shall be an

attorney.

(d) The bureau shall be staffed by as many

attorneys and investigators as are necessary to carry

out the purposes of this chapter. To the extent

possible, the attorneys and investigators shall be

experienced in criminal law.

97a

(e) The supervisor of the bureau and bureau

representatives designated by the supervisor have a

right of access to all places of employment necessary

to the investigation, may collect any evidence or

samples they deem necessary to an investigation, and

have all of the powers enumerated in Section 6314.

(f) The supervisor of the bureau and bureau

representatives designated by the supervisor may

serve all processes and notices throughout the state.

(g) In any case where the bureau is required to

conduct an investigation, and in which there is a

serious injury or death, the results of the

investigation shall be referred in a timely manner by

the bureau to the appropriate prosecuting authority

having jurisdiction for appropriate action, unless the

bureau determines that there is legally insufficient

evidence of a violation of the law. If the bureau

determines that there is legally insufficient evidence

of a violation of the law, the bureau shall notify the

appropriate prosecuting authority, if the prosecuting

authority requests notice.

(h) The bureau may communicate with the

appropriate prosecuting authority at any time the

bureau deems appropriate.

(i) Upon the request of a county district attorney,

the department may develop a protocol for the

referral of cases that may involve criminal conduct to

the appropriate prosecuting authority in lieu of or in

cooperation with an investigation by the bureau. The

protocol shall provide for the voluntary acceptance of

referrals after a review of the case by the prosecuting

authority. In cases accepted for investigation by the

98a

prosecuting authority, the protocol shall provide for

cooperation between the prosecuting authority, the

division, and the bureau. Where a referral is declined

by the prosecuting authority, the bureau shall comply

with subdivisions (a) to (h), inclusive.

19. Cal. Lab. Code. § 6317 provides:

If, upon inspection or investigation, the division

believes that an employer has violated Section 25910

of the Health and Safety Code or any standard, rule,

order, or regulation established pursuant to Chapter

6 (commencing with Section 140) of Division 1 of the

Labor Code, or any standard, rule, order, or

regulation established pursuant to this part, it shall

with reasonable promptness issue a citation to the

employer. Each citation shall be in writing and shall

describe with particularity the nature of the violation,

including a reference to the provision of the code,

standard, rule, regulation, or order alleged to have

been violated. In addition, the citation shall fix a

reasonable time for the abatement of the alleged

violation. The period specified for abatement shall not

commence running until the date the citation or

notice is received by certified mail and the certified

mail receipt is signed, or if not signed, the date the

return is made to the post office. If the division

officially and directly delivers the citation or notice to

the employer, the period specified for abatement shall

commence running on the date of the delivery.

A “notice” in lieu of citation may be issued with

respect to violations found in an inspection or

investigation which meet either of the following

requirements:

99a

(1) The violations do not have a direct relationship

upon the health or safety of an employee.

(2) The violations do not have an immediate

relationship to the health or safety of an employee,

and are of a general or regulatory nature. A notice in

lieu of a citation may be issued only if the employer

agrees to correct the violations within a reasonable

time, as specified by the division, and agrees not to

appeal the finding of the division that the violations

exist. A notice issued pursuant to this paragraph shall

have the same effect as a citation for purposes of

establishing repeat violations or a failure to abate.

Every notice shall clearly state the abatement period

specified by the division, that the notice may not be

appealed, and that the notice has the same effect as a

citation for purposes of establishing a repeated

violation or a failure to abate. The employer shall

indicate agreement to the provisions and conditions of

the notice by his or her signature on the notice.

Under no circumstances shall a notice be issued in

lieu of a citation if the violations are serious, repeated,

willful, or arise from a failure to abate.

The director shall prescribe guidelines for the

issuance of these notices.

The division may impose a civil penalty against an

employer as specified in Chapter 4 (commencing with

Section 6423) of this part. A notice in lieu of a citation

may not be issued if the number of first instance

violations found in the inspection (other than serious,

willful, or repeated violations) is 10 or more

violations.

100a

No citation or notice shall be issued by the division

for a given violation or violations after six months

have elapsed since occurrence of the violation.

The director shall prescribe procedures for the

issuance of a citation or notice.

The division shall prepare and maintain records

capable of supplying an inspector with previous

citations and notices issued to an employer.

20. Cal. Lab. Code § 6428 provides:

Any employer who violates any occupational

safety or health standard, order, or special order, or

Section 25910 of the Health and Safety Code, if that

violation is a serious violation, shall be assessed a

civil penalty of up to twenty-five thousand dollars

($25,000) for each violation. Employers who do not

have an operative injury prevention program shall

receive no adjustment for good faith of the employer

or history of previous violations as provided in

paragraphs (3) and (4) of subdivision (c) of Section

6319.

21. Cal. Lab. Code § 6429 provides in pertinent

part:

(a)(1) Any employer who willfully or repeatedly

violates any occupational safety or health standard,

order, or special order, or Section 25910 of the Health

and Safety Code, may be assessed a civil penalty of

not more than one hundred twenty-four thousand

seven hundred nine dollars ($124,709) for each

violation, but in no case less than eight thousand nine

101a

hundred eight dollars ($8,908) for each willful

violation.

(2) Commencing on January 1, 2018, and each

January 1 thereafter, the penalty amounts specified

in this section shall be increased based on the

percentage increase in the Consumer Price Index for

All Urban Consumers (CPI-U), not seasonally

adjusted, for the month of October immediately

preceding the date of the adjustment, as compared to

the prior year’s October CPI-U. Any regulation issued

pursuant to this section increasing penalty amounts

based on the annual increase in the CPI-U shall be

exempt from the rulemaking provisions of the

Administrative Procedure Act (Chapter 3.5

(commencing with Section 11340) of Part 1 of Division

3 of Title 2 of the Government Code), except that the

regulation shall be filed with the Office of

Administrative Law for publication in the California

Code of Regulations. Any penalty shall be calculated

using the penalty amounts in effect during the

calendar year in which the citation was issued.

*

*

*

102a

APPENDIX F

IN THE SUPERIOR COURT OF THE

STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF ORANGE

CIVIL COMPLEX CENTER

THE PEOPLE OF THE

STATE OF CALIFORNIA,

Plaintiff,

vs.

SOLUS INDUSTRIAL INNOVATIONS, LLC;

EMERSON POWER TRANSMISSION

CORPORATION; EMERSON ELECTRIC CO.;

and DOES 1-10

Defendants

____________________

Case No. 30-2012-00581868-CU-MC-CXC

[Filed July 6, 2012]

____________________

CIVIL COMPLAINT FOR VIOLATIONS OF:

(1) LABOR CODE SECTION 6428; (2) LABOR

CODE SECTION 6429; (3) BUSINESS AND

PROFESSIONS CODE SECTION 17200; AND

(4) BUSINESS AND PROFESSIONS CODE

SECTION 17500

____________________

103a

The People of the State of California, by and

through Tony Rackauckas, District Attorney for the

County of Orange, hereby allege as follows:

INTRODUCTION

1. On March 19, 2009, at a commercial plastics

manufacturing facility in Rancho Santa Margarita

(“RSM”), two workers suffered an untimely and tragic

death when an overstressed and misused water

heater exploded. Not only did both men—Jose

Jimenez and Isidro Echeverria—die instantly due to

the brutal force of the explosion, but the exploding

water heater also shot through the ceiling of the

building, causing severe structural damage. The

explosion launched pieces of the surrounding

machinery and parts in all directions and injured at

least one other employee as well. The facility was

shut down immediately following the devastation and

never returned to operation.

2. This man-made disaster was orchestrated by

the willful neglect and complete disregard for human

life by the victims’ employers—Solus and Emerson—

that opted to “cut corners” to save costs rather than

provide a safe working environment for their workers.

Indeed, despite having possession of a commercial

boiler and a detailed plan calling for the use of the

commercial boiler in their operations, Solus managers

intentionally decided to forego using the commercial

boiler and opted instead to install a residential

water heater so as to avoid the extra costs and down

time associated with installing the more suitable

boiler.

Since the residential water heater was

obviously not designed for use in the commercial

extrusion operations at the RSM facility, Defendants

104a

then proceeded, recklessly and hastily, to piece

together parts and force the residential heater into a

complicated manufacturing process it was not built to

support.

3. Not surprisingly, shortly after the residential

water heater was haphazardly installed—in

December 2007—it quickly became apparent that the

residential water heater could not operate at the high

temperatures required to maintain production

schedules. In their continued quest to make money

and deliver product at all costs, however, rather than

swapping out the residential heater for the

commercial boiler, or calling in engineering

consultants to evaluate safe alternatives (as any

reasonable person would have done), Defendants next

decided to manipulate the residential water heater to

make it work at extreme temperatures. Specifically,

Defendants decided to remove the residential

heater’s normal safety features so they could

manually force the heater to work beyond its safe

operating capacity in clear violation of the written

warnings on the heater and those set forth in the

operating manual.

4. For many months thereafter, Defendant Solus

operated the manipulated water heater at

temperatures and pressures in excess of its maximum

capacity nearly every day, thereby exposing multiple

shifts of employees to potential harm. Maintenance

supervisors and staff routinely attended to the heater

to fix problems and noted its unsafe operating

condition, but were instructed to continue to operate

the heater in excess of its safe operating capacity

nonetheless.

105a

5. Due to the extreme stress placed on the still

relatively new machine, in October 2008, the

temperature pressure relief valve (“TMP Valve”)

blew, warning Defendants, once more, that the heater

was in an extremely dangerous condition and at risk

of explosion. Although the operations were shut down

temporarily to “fix” the heater, the safety features

(including the blown valve) were not repaired and

Defendants knowingly permitted operations to

resume with the unsafe water heater in place. As a

result, the unrepaired safety valve proceeded to leak

and show further signs of distress continuously from

that day forward.

6. Written warnings on the machine and in the

operating manual confirmed that a failure to replace

a “dripping or leaking” TMP valve “can result in death

or explosion.” Management was well aware of these

warnings and indeed, were advised of the warnings

on multiple occasions by at least one maintenance

worker, but they willfully turned a blind eye and

opted to stay the course regardless.

7. In December 2008, Defendant Emerson

purchased Solus and took control of the RSM

operations. In February 2009, Emerson managers

performed a safety inspection of the RSM facility, redflagged the water heater (among other things) and

shut down the facility due to dangerous conditions.

Without confirming that conditions were safe,

however, Emerson management willfully permitted

the operations to resume with the visably unsafe,

leaking water heater on the verge of explosion. Sadly,

only days later, the victim workers were killed when

they were asked to attend to the leaking water heater

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and dutifully reported to their assigned task. If

Defendants had similarly attended to their

obligations to provide safe working conditions,

undoubtedly, these lives could have been spared.

8. This action is brought for civil penalties and

relief against Defendant employers for operating an

unsafe and hazardous work place in violation of

CalOSHA regulations and Labor Code standards, as

well as their unfair and unlawful business practices

in violation of the Business and Professions Code.

JURISDICTION AND VENUE

9. At the relevant time period in this case,

Defendants transacted business, employed workers

and/or controlled a place of business in the County of

Orange, in the state of California. The incident—

involving the deaths of two employees—occurred in

the County of Orange, in the state of California at the

Defendants’ place of business.

10. Jurisdiction and venue are proper in this

Court pursuant to California Code of Civil Procedure

Sections 395.5 because the conduct giving rise to

liability occurred in the County of Orange at the

Defendants’ place of business located at 30152

Aventura, in Rancho Santa Margarita.

PARTIES

11. Tony Rackauckas, as District Attorney for the

County of Orange, acting to protect the public from

health and safety hazards and from unfair, unlawful

or fraudulent business practices, brings this action in

the public interest on behalf of the People. As such,

the Plaintiff in this action includes the People of the

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State of California and the County of Orange

(hereinafter, the “Plaintiff” or the “People”).

12. Defendant Solus Industrial Innovations, LLC

(“Solus”) is a Limited Liability Company incorporated

under the laws of the State of Delaware and

headquartered in Florence Kentucky at 7120 New

Buffington Road. At the relevant time period in this

action, Solus operated a plastics manufacturing

facility, located at 30152 Aventura, in Rancho Santa

Margarita, California in the County of Orange. This

facility was subsequently closed and the company

no

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