Amicus Curiae Brief — Shell Oil Co. v. Pedraza

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RRS No. 91-959

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

SHELL OIL COMPANY, INC.,

Petitioner,

7.

CRUZ PEDRAZA, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

To THE FIRST CirRcuIT COURT OF APPEALS

MOTION OF THE

CHEMICAL MANUFACTURERS ASSOCIATION

FOR LEAVE TO FILE A BRIEF AS AMICUS CURIAE

AND BRIEF OF AMICUS CURIAE

IN SUPPORT OF THE PETITION FOR WRIT OF CERTIORARI

DAVID F. ZOLL

DONALD D. EVANS

MICHAEL P. WALLS *

CHEMICAL MANUFACTURERS

ASSOCIATION

2501 M STREET, N.W.

WASHINGTON, D.C. 20037

(202) 887-1100

Counsel For Amicus Curiae

JANUARY 6, 1992 * Counsel of Record

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

SHELL OIL COMPANY, INC.,

‘Petitioner,

ve

CRUZ PEDRAZA, ET AL.,

Respondents.

ON PETITION For A Writ OF CERTIORARI

To THE FIRST CIRCUIT COURT OF APPEALS

MOTION OF THE

CHEMICAL MANUFACTURERS ASSOCIATION

FOR LEAVE TO FILE A BRIEF AS AMICUS CURIAE

AND BRIEF OF AMICUS CURIAE

Pursuant to Rule 37.2 of the Rules of this Court, the

Chemical Manufacturers Association (CMA) moves for leave

to file the accompanying brief as amicus curiae in support of

the petition for a writ of certiorari. Amicus curiae is a non-

profit trade association whose member companies represent

90 percent of the productive capacity for basic industrial

chemicals in the United States. CMA member companies are

subject to federal and state occupational safety and health

regulations which are potentially affected by the outcome of

this case.

CMA requests leave to file the accompanying brief to

inform the Court of the significance of the First Circuit Court

of Appeals decision on the national occupational safety and

health program. Counsel for the petitioner Shell Oil Company

has consented to the filing of this brief. The consent of counsel

for Respondents Cruz Pedraza, et al., was requested but refused.

CMA therefore requests leave to file the accompanying brief as

amicus curiae.

Respectfully submitted,

DAVID F.. ZOLL

DONALD D. EVANS

MICHAEL P. WALLS *

CHEMICAL MANUFACTURERS

ASSOCIATION

2501 M STREET, N.W.

WASHINGTON, D.C. 20037

(202) 887-1100

Counsel For Amicus Curiae

* Counsel of Record

ee

i

Table of Contents

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REASONS FOR GRANTING THE PETITION

I. INTRODUCTION AND SUMMARY ...............cccceeeeeceeees 2

A. Structure of the Occupational Safety and Health Act. 3

B. Summary of Reasons for Granting the Petition for

inkl tis si dcanueuasnaussneueresqievetsishdsinauiiescaredsoeiuees 5

II. THE DECISION OF THE FIRST CIRCUIT CONFLICTS

WITH DECISIONS OF OTHER FEDERAL CIRCUIT

IS Cnc ccvacuekcasaweivikersansnleantiaiabavsedacere 6

III. CERTIORARI SHOULD BE GRANTED TO RESOLVE

THE IMPORTANT ISSUE OF THE EXTENT TO WHICH

STATE TORT ACTIONS ARE PREEMPTED BY OSHA.

A. The Plain Language of the Act Supports a Conclusion

Te een na cavcbcddecgnaheies pudirersenuentwanseiins 11

B. The Entire Federal OSHA Regulatory Scheme is

Undermined by the Decision of the First Circuit. ..... 12

1. Obstacle to Achieving Uniformity and Balance in

Occupational Safety and Health. ....................... 12

2. Conflict with Substantive and Procedural Aspects

of the Federal Regulatory Scheme. ................... 13

3. Interference with Federal Oversight of State

aaNet dn ncod agen ehnereudustertiiepnichinese 15

i alain pad ekunsnsceddalseakbehdouensersedensdacenusoures 17

ii

Table of Authorities

Cases:

American Textile Mfrs. Institute v. Donovan,

452 U.S. 490, 101 S. Ct. 2478, 69 L. Ed.2d 185 (1981). ..4

Cipollone v. Liggett Group, Inc.,

789 F.2d 181 (3rd Cir. 1986), cert. denied,

479 U.S. 1043, 107 S. Ct. 907, 93 L. Ed.2d 857

(1987), after trial on remand, 893 F.2d 541 (1990), cert.

granted, 111 S. Ct. 1386 (1991), argued, 60 U.S.L.W.

3278 (Oct. 8, 1991), restored to calendar for reargument,

i vas adios ch has laicedaeeupsiuiamasaceuneanauesaseeeces 8

English v. General Electric Co.,

495 U.S. _, 110 S. Ct. 2270, 110 L. Ed.2d 65 (1990)...... 10

Gade v. National Solid Wastes Management Association,

Fe ee Ny EDs eanrcendsosistcctensatsactsicsectcosens ose

Ingersoll-Rand Co. v. McClendon,

498 U.S. _, 111 S. Ct. 478, 112 L. Ed.2d 474

SIE aul cdinsuigdin celal alabbldialsndanuiansesbenbienienindecesconesanees 10,14

International Paper Co. v. Oullette,

479 U.S. 481, 107 S. Ct. 805, 93 L. Ed.2d 8

SR Rudi M ahhh tar eacenicaubiaiscdiquiasinasnedesaensesnees 6,10,12,15

Kitts v. General Motors Corp.,

875 F.2d 787 (10th Cir. 1989), cert. denied, 108 L. Ed.2d

783, 1990 US LEXIS 1720, 110 S. Ct. 1781, 58 U.S.L.W.

i een iaa cesses eedasnsubgumbaaameonnderstachanvand 7

MacMillan v. Redman Homes, Inc.,

_ Tex. App. _, 1991 Tex.App. LEXIS 2846 (Sept. 11,

Se tecdines Sedbaasiucan Ce vangudavecssouedbeunscieesatinehevexceteseatseovenes 8,14

Mowery v. Mercury Marine,

Cie Be I TOPE Oe CRD TODD). cvcsecceccersevsecsssorcnesseee 8

Palmer v. Liggett Group, Inc.,

ee a I I, | RUNES sectscctencvasedenscsctsncsccocesecees 8,12

Papas v. Upjohn Co.,

926 F.2d 1019 (11th Cir. 1991), petition for cert. filed, 59

U.S.L.W. 3825 (U.S. May 29, 1991) (No. 90-1837). .......... 8

Public Citizen Health Advisory Group v. Tyson,

Fee Fe Be Es BIDS tnsiensectecwesensneccscsvenisvesesess 14

San Diego Building Trades Council v. Garmon,

359 U.S. 236, 79 S. Ct. 773, 3 L. Ed.2d 775 (1959). ...6,12

Schneidewind v. ANR Pipeline Co.,

485 U.S. 293, 108 S. Ct. 1145, 110 L. Ed.2d 65

CRIS cudiiaianataviniecirthdsnacianttUhdeddbhuicseendeckactintéssrésitscssicees 10

Secretary of Labor v. Smith Steel Casting Co.,

15 OSHC (BNA) 1001 (Review Commission) (April 24,

PENI cuaisduehaddlundahigds tbl aiatalediacssestseniinbientestisesceidecvnerscsesess 11

Taylor v. General Motors Corp.,

ge i ee ee een 7,13

|

iii

Weinberger v. Bentex Pharmaceuticals,

412 U.S. 645, 93 S. Ct. 2488, 37 L. Ed.2d 235 (1973). ..13

Whirlpool Corp. v. Marshall,

445 U.S. 1, 100 S. Ct. 883, 663 L. Ed.2d 154 (1980). ...... 4

Wisconsin Dep't of Industry v. Gould, Inc.,

475 U.S. 282, 106 S. Ct. 1057, 89 L. Ed.2d 223 (1986). ..6

Wood v. General Motors Corp.,

865 F.2d 395 (1st Cir. 1988), cert. denied,

108 L. Ed.2d 782, 110 S. Ct. 1781 (1990). .................. 7,10

Statutes and regulations:

Occupational Safety and Health Act of 1970, 29 U.S.C. 65let

seq

Ss A Rei iee NP OI vise siccinrwvnsicersciesevancecuveususnesans 3

She Oe UC, GD hin cccncsscvenssverscnnsnesesaveses 3,8,12

DS Fe Be rs IEE casenviccesicssasnsvevcecevinewssncceuveuanes 4

Cs Ue cs MIMD sins ccnesvnccsevvcvessescnccousedancess 8,11

Oe ioc nwcisccnnasenscounensnvenduciecudoacntanee 4

Oe es ies SIO oenicsinseccersacexscnsassnsvncesecseuntabas 4

ie Ee IE inci npn de snensavuaindsdesvsecssancanaraebiasinccuenen 4

aad iderancscesiansdevurdanscsaakerscatouensacuaionia 4

SFOs Be I cessscescesscricenseseysncsaxndevcees !.... 3,541

Be Rs ee as I a pes pa vevicnisesascieneniserectcconiastseuvels 15

ee Be er FI cris siccpvccssnasuaensusuttebeinestousessanes 6.15

Oe et os can ed bana euniedeaeanaueasasioe 15

Se Se ee ees MIE cass iuscbiicatcicnsusdschodedhesuansnnnsouapneasodees 15

Federal Cigarette Labeling and Advertising Act, 15 U.S.C.

i a IIE, 01 Ao cel nasenan seu nenusuaabocnusconnsvienieanmreeias 8

Bee re Oe Es REE © Ne CIID seid sccncdenssnsnvenssavasupeccnsencneins is

a i EE IEEE co snnadeveisasesnsersotnecnbiernteusins REE Ae S

29 C.F.R. § 1910.1000

ME MI Git oh asst dacenciatdss tomconaacninedieccmuninddinceneesia 5,11

ee ee I iivsssceriacntsinns nsceensecieeeelikaateeen 5,8

55 Fed.Reg. 29150 (July 17, 1990)(to be codified at 29 C.F.R.

i TNIIEIEL wn scicia beds odeuanvasiansnectiunduuunkas lau aaaaanneea tn 5

Miscellaneous:

BE is See Ge CIT i seccccscctensbariscisanssteeccevistoneeaesonns 14

B.W. Mintz, OSHA History, Law and Policy (1984). ..........cccceeee 4

Hearings on S. 2864 Before Subcomm. on Labor of

the Senate Comm. on Labor and Public Welfare, 90th

eee I: SITIES sib dashtnrkicheacecsucopiugecsssenteiacasebetoriesanyeestcs 13

S. Bokat & H. Thompson, Occupational Safety and Health Law

PINNED sdsacbcactcicisduassasdanecdsuducouausubendeuosoudiniciniecamresaesenescokies 15

S. Rept. No. 1282, 91st Cong., 2d Sess., 2-4 (1970). ............... 3

No. 91-959

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

Shell Oil Company, Inc.,

Petitioner,

¥.

Cruz Pedraza, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF OF AMICUS CURIAE

CHEMICAL MANUFACTURERS ASSOCIATION

IN SUPPORT OF THE PETITION FOR WRIT OF CERTIORARI

INTEREST OF AMICUS CURIAE

The Chemical Manufacturers Association (CMA) is a non-

profit trade association whose member companies represent 9O

percent of the production capacity for basic industrial chemicals

in the United States. CMA member companies, including Shell

Chemical Company, a division of the petitioner, are located

throughout the United States, and are subject to federal and state

occupational safety and health standards. The Association is Ming

this amicus briefbecause ofits general interest in assuring uniform

application of occupational safety and health regulations.

The decision of the First Circuit Court of Appeals in this case

conflicts with the decisions of other Circuits in comparable cases,

and creates the potential for confusion and conflicts in the

2

application of federal and state regulations for warnings of occu-

pational exposures to chemicals. Granting the petition for certio-

rari will enable the Court to clarify the preemptive effect of federal

occupational safety and health standards on state common law

actions. The outcome of this case will have a direct impact on

chemical manufacturers — indeed all businesses subject to the

Occupational Safety and Health Act — throughout the United

States. If the Court of Appeals decision stands, substantial new

regulatory authority will effectively be vested in juries sitting in

state common law actions. Congress did not intend to grant juries

the authority to undermine the carefully designed regulatory

scheme in the Occupational Safety and Health Act.

REASONS FOR GRANTING THE PETITION

I. INTRODUCTION AND SUMMARY

89 million American workers.

6 million business establishments.

A single, uniform system of preventive health and safety

measures to protect workers throughout the Nation: the federal

Occupational Safety and Health Act (OSHA or Act), 29 U.S.C. § 65 1-

678 (1970), and State plans approved by the federal government.

The potential for the decision of a single jury to undermine that

regulatory system and its goal of national uniformity.

The principal question presented in the petition is whether the

federal statutory structure for occupational safety and health

protection preempts state common law actions which impose

requirements different from those imposed by federal standards —

requirements that could not be imposed by state legislation or

regulation without prior federal approval.

This case involves the interplay between a federal statute and

a personal injury action. The plaintiffalleged an injury as the result

of exposure to a trace chemical, epichlorohydrin, for which OSHA

has established a permissible exposure limit (PEL). The plaintiff

was exposed to the material for a short period of time, approxi-

mately seven months out of 9 years of relevant employment. The

3

plaintiff made no allegation that either his employer, United

Technologies Corporation, or the defendant, Shell Oil Company

(the chemical supplier), violated any OSHA regulation governing

exposure to epichlorohydrin. Shell warned of the presence of the

chemical, the plaintiffs employer acknowledged receipt of the

warning, and safety measures consistent with the OSHA require-

ments were implemented. The plaintiff seeks to hold Shell liable

for failure to warn of the possible health effects of an exposure to

epichlorohydrin al a level below the OSHA PEL.

OSHA, the federal statute involved in this case, has a compre-

hensive preemption provision. Section 18 of the Act preempts State

regulation of occupational safety and health, except as part of a

state plan approved by the federal Occupational Safety and Health

Administration. 29 U.S.C. § 667. Section 4(b)(4) of the Act,

however, preserves state remedies under workers’ compensation

and common law. Id., § 653(b)(4). This case raises the important

question of how these apparently inconsistent provisions apply to

state tort actions which have the elflect of imposing duties beyond

those required by the federal (or approved state plan) occupational

safety and health standards. The petition for certiorari should be

granted in order to permit the Court to clarify the preemptive effect

of OSHA on state common law actions.

A. Structure of the Occupational Safety and Health

Act.

Since its enactment in 1970, OSHA and its far-reaching

regulatory scheme have combined 1o create the single most

important system for assuring worker protection in the United

States. The Act cuts deeply and widely into the very core of

American commerce. Congress found that occupational injuries

and illnesses have a definite effect on interstate commerce, and

that the only effective response to these problems is national in

scope, and uniform in character. See OSHA § 2{a).(b), 29 U.S.C.

§ 651(a),(b); S.Rept. No. 1282, 91st Cong., 2d Sess., 2-4 (1970).

The approach adopted under OSHA balances the needs of inter-

state commerce through an intricate, carefully crafied system of

regulatory procedures, substantive rights and obligations. Nearly

4

two years of drafting, re-drafting, debate and compromise pre-

ceded enactment of OSHA; the very structure of the Act exhibits

careful Congressional reflection.

The system of preventive health and safety measures Con-

gress adopted in OSHA are exceptional because of their broad

reach and careful articulation. The Act imposes a substantive duty

on employers to furnish a workplace free from “recognized naz-

ards” that cause, or are likely to cause, death or serious injury.

OSHA § 5fa)(1), 29 U.S.C. §654(a)(1). Employers have an obligation

to inform workers about known hazards, and to communicate new

information about existing workplace hazards as it is received. Id.,

§ &(c)(3), 29 U.S.C. § 657(c)(3). OSHA is authorized to close

businesses exposing workers to imminent dangers. Id., § 13, 29

U.S.C. § 662. Employees have a right under OSHA to remove

themselves from the workplace, free from threats of reprisal, in

situations which threaten serious physical harm. Id., §11, 29

U.S.C. § 660(c); Whirlpool Corp. v. Marshall, 445 U.S. 1, 100 S.Ct.

883, 663 L.Ed.2d 154 (1980). In addition to its other powers,

OSHA is authorized to issue emergency, temporary standards to

address critical occupational safety and health matters. OSHA §

6(c), 29 U.S.C. § 655{(c).

Congress made procedural innovations as well. The Act

contains “hybrid” rulemaking provisions, which assure that sound

science and relevant economic considerations underlie regulatory

decisions. Appropriate to a statute affecting interstate commerce,

health and safety siandards developed by OSHA are required to

reflect not only the effects of the exposure or activity, but also the

costs and feasibility of controls to prevent the illness or injury. See

e.g., American Textile Mfrs. Institute v. Donovan, 452 U.S. 490,

508-513, 101 S.Ct. 2478, 69 L.Ed.2d 185 (1981). As a result,

OSHA standards “reflect both the technical and policy expertise of

the Agency”. B. W. Mintz, OSHA History, Law and Policy 37-38

(1984).

The role of the states in regulating occupational safety and

health is carefully limited by the Act. State standards governing

matters for which a federal standard is in effect are expressly

5

preempted, and a state may “reclaim” regulatory authority only by

adopting a detailed state plan approved by the federal agency.

OSHA§ 18, 29 U.S.C. §667. State regulations more stringent than

federal standards are permitted only with OSHA's approval. Id., §

18(c), 29 U.S.C. § 667(c).

The pervasiveness of the OSHA regulatory system is readily

apparent throughout the industries that manufacture, use, store

and dispose of chemical products. The Z tables, 29 C.F.R. §

1910.1000, provide specific exposure limits for chemical prod-

ucts. Engineering controls are preferred over personal protective

devices. Id.,§ 1910.1000, Table Z- 1-A(e); § 1910. 134(a). Chemical

process safety regulations address process safety requirements

throughout the chemical manufacturing industry. 55 Fed.Reg.

29150 (July 17, 1990)(to be codified at 29 C.F.R. pt. 1910).

The prime example of OSHA's pervasive reach into the

workplace is the Hazard Communication Standard (HCS), 29

C.F.R. § 1910.1200. The HCS governs the evaluations of hazards

in the workplace, requires warnings to employees when they are

or may be exposed to hazards, and mandates training programs

and hazard-specific information. The HCS is the federal standard

which delineates a supplier's duty to warn of chemical hazards.

Taken as a whole, the OSHA regulatory regime provides far more

uniform and comprehensive worker protection than any state

regulatory system, or jury decision, could possibly achieve.

B. Summary of Reasons for Granting the Petition for

Certiorari

The decision and reasoning of the First Circuit Court of

Appeals are directly inconsistent with those adopted by other

Courts of Appeals deciding similar issues. In cases involving

federal statutes similar to OSHA, other Circuit Courts of Appeals

have found preemption of state tort actions. They have limited the

reach of savings clauses similar to OSHA § 4(b)(4) to those common

law actions that do not seek to impose duties different from those

imposed by federal standards. Certiorari should be granted to

permit this Court to resolve this conflict.

6

The issue central to this case, the preemptive effect of OSHA

on state standards, is an important question of federal law. Just

last month, after the submission of Shell's petition, this Court

granted certiorari in Gade v. National Solid Wastes Management

Association, No. 90-1676 (Dec. 16, 1991). Gade raises the issue

ofthe preemptive effect of OSHA standards on state “dual-purpose”

regulations that allegedly “supplement” the federal regulatory

scheme. The question of OSHA's preemptive effect on tort law

decisions, even when supplemental to the federal regulatory

scheme, is equally important. The federal policies of uniformity

and consistency of regulation that underlie the Gade case are

equally applicable here.

II. THE DECISION OF THE FIRST CIRCUIT CONFLICTS

WITH DECISIONS OF OTHER FEDERAL CIRCUIT

COURTS OF APPEAL.

The doctrine of federal preemption of state activities, including

state common law actions, has received considerable judicial

attention from this Court. It is a firmly entrenched principle that

state tort judgments have a regulatory effect and are therefore as

subject to federal preemption as any other form of state regulatory

activity. See International Paper Co. v. Oullette, 479 U.S. 481, 494-

97 (1987); Wisconsin Dep't of Industry v. Gould, Inc., 475 U.S. 282,

286 (1986); San Diego Bldg. Trades v. Garmon, 359 U.S. 236

(1959). Courts of Appeal in most circuits have taken this 30-year

old principle seriously, and have held federal statutes and regula-

tions to preempt state tort actions even where the federal statute

in question contains a broad savings clause for state tort actions.

Those courts have correctly reasoned that even a general savings

clause cannot be construed to permit all tort actions, particularly

those that would effectively impose requirements beyond those

specifically prescribed by federal law.

The court below employed no such careful analysis, but

simply and superficially read the OSHA savings clause to allow any

and all tort actions, even where, as here, the actions seek to impose

requirements in addition to carefully considered federal stan-

dards. The Court should grant certiorari to provide guidance to the

7

lower courts on the standards to apply in balancing the require-

ment for some degree of preemption with the need to give meaning

to a statutory savings clause.

Taylor v. General Motors Corp., 875 F.2d 816, 822-827 (11th

Cir. 1989), provides an example of the proper balance — a balance

starkly at odds with that of the court below. Taylor involved a

plaintiff's attempt to hold an auto manufacturer liable for injuries

allegedly caused by the manufacturer's failure to include an airbag

inacar. Although the manufacturer had complied with the Motor

Vehicle Safety Act (MVSA), which provided the option of including

airbags or other restraints, the plaintiffrelied on an explicit savings

clause in the MVSA. Oni its face, the MVSA savings clause appeared

to preserve common law tort actions concerning the subject matter

of the statute, regardless of the manufacturer's compliance with

the law.

Notwithstanding the broad savings clause, however, the

Eleventh Circuit held that the MVSA and its detailed regulations

did in fact preempt the plaintiff's attempt to hold the manufactur-

ers to a standard different than that set down under the statute.

The Taylor court acknowledged that the savings clause should be

given substantial effect, but without ignoring the necessary,

preemptive effect of the specified federal standards. Only specified

types of tort actions that did not implicate the federal standards

could be allowed. The Tenth Circuit has reached this same

conclusion as to claims for failure to install airbags. See Kilts v.

General Motors Corp., 875 F.2d 787 (10th Cir. 1989). The holdings

in Taylor and Kitis are in conflict with the holding of the court

below. '

The Third Circuit, in like manner, looks to the purposes of the

federal statute, and evaluates the effects of state common law on

those purposes. Thus, where a tort claim had the effect of “tipping

the Act's balance of purposes,” by requiring conduct different than

that required by the Federal Cigarette Labeling and Advertising

‘ Ironically, the First Circuit itself has reach the same conclusion as Taylor

and Kitts in an airbag case. See Wood v. General Motors Corp., 865 F.2d 395

(1st Cir. 1988). Inexplicably, the court below failed to discuss or even cite Wood.

8

Act, the claim was preempted. Cipollone v. Liggett Group, Inc., 789

F.2d 181, 187 (3d Cir. 1986), cert. denied, 479 U.S. 1043 (1987),

afier trial on remand, 893 F.2d 541 (1990), cert. granted 111 S.Ct.

1386 (1991), argued, 60 U.S.L.W. 3278 (Oct. 8, 1991), restored to

calendar for reargument, Oct. 21, 1991.2 See also Mowery v.

Mercury Marine, 773 F.Supp. 1012 (N.D.Ohio 1991) (product

liability claim preempted by Federal Boat Safety Act); MacMillan v.

Redman Homes, Inc. __ Tex. App. __, 1991 Tex.App. LEXIS 2846

(Sept. 11, 1991)(National Manufactured Housing Construction

and Safety Standards Act preempts strict product liability and

negligence claims). Similarly, the Eleventh Circuit has found that

a complaint for inadequate warnings was preempted by the

Federal Insecticide, Fungicide, and Rodenticide Act, which governs

the manner in which states may require pesticide labels. Papas v.

Upjohn Co., 926 F.2d 1019 (11th Cir. 1991), petition for cert. filed,

59 U.S.L.W. 3825 (May 29, 1991)(No. 90-1837).

The OSHA Hazard Communication Standard establishes an

employer/supplier’s duty towarn. OSHA§ 6(b), 29 U.S.C. § 655(b):

29 C.F.R. § 1910.1200. That standard represents an intricate

federal balancing of the interests of employers and employees,

health protection and economics, and even the competing interests

of federal and state regulators.

As the First Circuit noted in Palmer v. Liggett Group, Inc. 825

F.2d 620 (1st Cir. 1987), state common law claims are preempted

when they interfere with a carefully wrought federal regulatory

scheme:

? The Federal Cigarette Labeling and Advertising Act, 15 U.S.C. § 1331-1340

(1981) contains an express preemption provision (§ 1334(b)), but no savings

provision similar to that contained in OSHA § 4(b). The lack of a savings clause

is not fatal to the analysis suggested here. Indeed, in the Labeling Act, Congress

expressly balanced human health and commercial interests. See 15 U.S.C. §

1331 (purposes to adequately inform the public and protect commerce and the

national economy to the maximum extent consistent with that policy). Al

though OSHA does not contain a similar, express balancing of interests, the

standards-setting process and the federal government's implementation of the

Act reflect just such a balancing of interests. See OSHA § 6(b)(5). OSHA's

unique approach to balancing national interests is no less effective in preempt-

ing state common law tort claims than that adopted in the Labeling Act.

9

It is inconceivable that Congress intended to have that

carefully wrought balance of national interests super-

seded by the views of a single state, indeed, perhaps of a

single jury in a single state... To permit the interposition

of state common law actions into a well-defined area of

federal regulation would abrogate utterly the established

scheme of health protection as tempered by trade protec-

tion. Id at 626.

Plaintiff's challenge here is to the propriety of Shell's warnings,

regardless of compliance with a carefully considered federal

standard. The OSHA savings clause should not, and cannot

reasonably, be read to save common law claims that render such

federal standards so plainly irrelevant. 4

OSHA Section 4(b) can be given a logical, meaningful con-

struction without undermining Section 18 and the necessary

preemptive effect of federal standards. The savings clause clearly

preserves tort actions where no federal OSHA standard exists. And

itcan be construed ‘oallow tort actions even where there is a [federal

standard, so long as the tort action is not premised on a duty to

warn, or some other duty, that would require conduct different

from that required by OSHA standards. In other words, OSHA does

not deny plaintiffs a right to bring a lawsuit and seek compensa-

lion; it simply denies the right to allege a theory of liability already

covered by a federal standard. The First Circuit went much further,

construing § 4(b)(4) as preserving alltort actions, even those which

establish warning requirements that could not be imposed by the

state through regulation under Section 18.

The First Circuit decision is in direct contrast to the decisions

of other courts which have weighed the purposes and interests of

the federal regulalory system and the common law. The petition

for certiorari should therefore be granted.

10

Ill. CERTIORARI SHOULD BE GRANTED TO RESOLVE

THE IMPORTANT ISSUE OF THE EXTENT TO WHICH

STATE TORT ACTIONS ARE PREEMPTED BY OSHA.

The number of cases recently decided on preemption grounds

is testimony to the fact that federal statutory enactments do not

always draw a bright linearound the degree of exclusivity over siate

law. See, e.g., Ingersoll-Rand Co. v. McClendon, 498 U.S. _, ill

S.Ct. 478, 112 L.Ed.2d 474 (1990); English v. General Electric Co.,

495 U.S. at _, 110 S.Ct. at 2275.; International Paper Co. v.

Oullette, 479 U.S. at 496. When a federal statute does not directly

address the extent to which state regulatory activity is excluded,

an implied preemption analysis must be made. Wood v. General

Motors Corp., 865 F.2d at 407. When the state law “stands as an

obstacle to the accomplishment of the full purposes and objectives

of Congress,” the federal law preempts the state. Schneidewind v.

ANR Pipeline Co., 485 U.S. 293, 108S.Ct. 1145, 1151, 110 L.Ed.2d

65 (1988). In determining preemption, one musi also look to

potential interference “with the methods by which the federal

statute was designed” to achieve its purposes. International Paper

Co. v. Oullette, 479 U.S. at 496, 107 S.Ct. at 813.

An analysis of the preemptive eflect on state common law

looks not only to the specific provisions of the federal law, but also

to the structure and operation of the statute in practice. Prior

decisions of this Court have focused on a number of factors:

1) the plain language of the statute;

2) the policies and purposes served by the federal

Statute;

3) Congress’ chosen regulatory method;

4) the level of oversight exercised by the federal

government over state law; and

5) the degree to which states are permitted to diverge from

the federally-mandated regulatory method;

Each of these factors bears on the question of whether

Congress impliedly preempted state common law tort claims by

11

fashioning a regulatory structure so pervasive as to preclude that

particular exercise of power.

A. The Plain Language of the Act Supports a

Conclusion of Preemption.

Congress made clear that in the field of occupational safety

and health, federal standards are supreme. OSHA § 18{a): 29

U.S.C. § 667(a). Section 18(a) provides that State courts and

agencies may assert jurisdiction over occupational safety and

health issues for which no federal standard is in effect. Id. As the

remainder of Section 18 makes clear, states can only exercise

jurisdiction over occupational safety and health issues for which

there are federal standards, through a plan submitted and ap-

proved by OSHA. Section 18(a) contains no exceptions; it is

absolute in its prohibition of state jurisdiction over matters

addressed in federal standards.

A federal standard for epichlorohydrin is in effect. 29 C.F.R.

1910.1000, Table Z-1-A. OSHA § 6(b)(5) mandates that the

standard be set at a level where “no employee will suffer material

impairment of health or functional capacity even if such employee

has regular exposure to the hazard dealt with by such standards

for the period of his working life.” 29 U.S.C. § 655(b)(5)(emphasis

added). In this case the exposure to the epichlorohydrin was for

a period considerably shorter than the plaintiff's working life.

Notably, there is no allegation that the OSHA standard for

epicholorhydrin was improperly promulgated. Cf. Secretary of

Labor v. Smith Steel Casting Co., 15 OSHC (BNA) 1001 (Review

Commission)(April 24, 1991)(discussing adoption of 29 C.F.R. §

1910.1000, the air contaminants standard). Nor is there any

allegation that Shell failed to comply with the hazard communica-

tion standard in warnings sent to plaintiff's employer.

A state regulation governing exposures to epichlorohydrin

would be expressly preempted by the Act unless it was approved

by OSHAas part ofa state plan. Decisions in state tort actions that

establish duties beyond those required by OSHA standards have

12

an effect similar to a prohibited state regulation. See San Diego

Building Trades Council v. Garmon, 359 U.S. at 247; Palmer v.

Liggett Group, Inc., 825 F.2d at 626. The First Circuit decision

therefore effectively validates state standards that would otherwise

be prohibited by OSHA.

OSHA's general savings clause, OSHA § 4(b)(4), 29 U.S.C. §

653(b)(4), provides:

Nothing in this Act 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 or employees under any law with respect to

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

or in the course of, employment.

The First Circuit decision, however, would not only “save”

common law tort actions from OSHA preemption. The court's

decision would also validate any state occupational safety and

health law, even in the presence of a federal standard, as the

savings clause provides little guidance on what is “any law with

respect to injuries, diseases or death of employees...” It isa

curious interpretation of OSHA that would permit States to fashion

safety and health standards even in the face of the express

preemption provision of § 18{a). As discussed earlier, the OSHA

savings clause can be given substantial effect without according it

the absurdly broad reach given it by the court below.

B. The Entire Federal OSHA Regulatory Scheme is

Undermined by the Decision of the First Circuit.

1. Obstacle to Achieving Uniformity and Balance

in Occupational Safety and Health.

The Court has noted that interference with Congress’ statu-

tory approach is not shown simply by the fact that both a federal

regulation and a slate tort decision have the same ultimate goal.

International Paper Co. v. Ouellette, 479 U.S. at 481. The state law,

whether manifested as direct regulation or a jury decision, must

13

create an obstacle to the achievement of thal goal through

Congress’ chosen method, or it must create a conflict with the

regulatory scheme. Id. See also Taylor v. General Motors Corp., 875

F.2d at 823.

As noted above, Congress had a clear goal of uniformity in

enacting a national occupational safety and health regime. The

large number of covered workplaces, and the diverse nature of

state controls (ifany), mandated a federal approach. Indeed, state

worker protection programs were thought to have such “significant

variability in results,” that an extensive federal regulatory role was

required. Hearings on S. 2864 Before Subcomm. on Labor of the

Senate Comm. on Labor and Public Welfare, 90th Cong., 2d Sess.

72 (1968)(Statement of W. Wirtz). See also id. at 485 (Statement of

C.M. Fair, Dep't of Legislation, AFL-CIO). It is also clear that much

more than national uniformity was behind Congress’ chosen

regulatory structure.

OSHA strikes a careful balance between the potentially

competing interests of employees and employers in the workplace.

Standards must reflect not only a preventive approach to a health

or safety problem, but must also take the feasibility and cost of

potential controls into account. Commerce and competitiveness

policies were also reflected in the Act's treatment of state regula-

tion. A national occupational safety and health policy minimizes

the unfaimess ofrequiring “compliance by one manufacturer (with

a state law) while his competitors, engaging in similar practices,

remain free” to apply another standard. See Weinberger v. Bentex

Pharmaceuticals, 412 U.S. 645, 653, 93 S.Ct. 2488, (1973). The

First Circuit decision would create just such unfairness, as cost

and feasibility considerations which would otherwise be included

in a state regulation will certainly not be considered by a jury ina

personal injury action.

2. Conflict with Substantive and Procedural

Aspects of the Federal Regulatory Scheme.

A particularly disturbing aspect of the First Circuit decision is

the potential for interstate conflict in the substantive rights, duties

14

and obligations applicable in different states. It is entirely

foreseeable that state courts, exercising their common law powers,

might develop different substantive standards applicable to the

same employer conduct. Worker protection plans, and even

preventive engineering measures, might have to be tailored to the

peculiarities of the law of each jurisdiction. Such an outcome is

fundamentally at odds with the goal of uniformity that Congress

sought to implement. See Macmillan v. Redman Homes, Inc., __

Tex.App. __, 1991 Tex.App. LEXIS 2846 (Sept. 11, 1991), citing

Ingersoll-Rand Co. v. McClendon, 498 U.S. __, 111 S.Ct. 478, 484

(1990).

OSHA imposes an exhaustive procedural requirement for

the adoption of federal health and safety standards that take into

account risk and scientific information. The process used in

setting the standard for epichlorohydrin is typical. See Brief for Pet.

Shell Oil Company App. 209-216. The assessment and manage-

ment of risks in the workplace is a difficult task. Sound scientific

principles must be applied. Chemical structures, physical effects,

the likely onset of acute or chronic effects, and the interpretation

of toxicological and epidemiologic data all require proven scientific

knowledge. See Public Citizen Health Advisory Group v. Tyson, 796

F.2d 1479, 1496 (D.C.Cir. 1986)(legal requirements and scientific

bases for standards). The entire effort is designed to avoid the

imposition of arbitrary regulatory controls, and to prevent the

dilution of OSHA’s comprehensive worker protections through

warnings of negligible risks.

Compared to the scientific expertise applied in a toxicologi-

cal or epidemiological study, a jury’s findings could hardly rise to

the level of even a theoretical speculation. Certainly a jury award

is not likely to be made on the basis of cost and feasibility concerns,

otherwise required under OSHA. The First Circuit decision would

equate a jury's findings with those of scientifically trained experts.

The entire “peer review” process inherent in OSHA would be

jettisoned in favor ofa standard set, however arbitrarily, by a jury.

Clearly, a state common law action would thus stand “as an

obstacle” to Congress’ chosen method.

15

3. Interference with Federal Oversight of State

Regulation.

OSHA permits states to reclaim their authority over occu-

pational safety and health programs in specified instances, subject

to federal approval. Under section 18(b), a state plan for occupa-

tional safety and health regulation can be approved by the federal

government, provided it meets the criteria set forth in section 18(c).

OSHA § 18(b),(c), 29 U.S.C. § 667(b),(c). Federal approvals of state

plans are codified at 29 C.F.R. §§ 1952.100-.384 (1990).

Typically, the federal approvals describe the state plan,

outline the level of federal enforcement to be applied, and identify

legislative and administrative developmental steps required to

make the state plan “at least as effective” as the federal program.

29 U.S.C. § 667 (c)(2). Even after the state plan is approved,

however, the federal government continues to exercise concurrent

jurisdiction for a three year period. Id. at § 667 (e),(.. Whenever

a state plan fails to “comply substantially” with the federal

standard, approval is withdrawn and federal enforcement author-

ity applied. Id., §18(f). “The state plan concept set forth in the Act

is, in essence, a scheme of administratively controlled preemp-

tion.” S. Bokat & H. Thompson, Occupational Safety and Health

Law 681 (1988).

The degree of federal oversight of state programs is addi-

tional evidence that state common law actions are preempted by

OSHA.” It is highly unlikely that Congress would have looked to

state common law tort decisions as a means of efficiently correcting

safety and health standards to reflect new technology or new

* An excellent example of the restriction on state initiatives is OSHA's

“product standard clause.” OSHA § 18(b), 29 U.S.C. § 667(b). A standard

different from the federal standard may be approved as part of a state-plan if

it is “compelled by local conditions” and presents “no undue burden on

interstate commerce.” Id. If the proposed state standard relates to an OSHA-

regulated health or safety issue, the state must first seek federal approval. Id.

Under the First Circuit decision, however, there would be no requirement

to show that the lower effective standard adopted by a jury is compelled by the

“local conditions” other than those raised by individual plaintiffs. It is highly

16

hazard information. The First Circuit decision would permit state

common law to function as an unprecedented supplement to —

indeed substitute for — the federal regulatory regime.

As this Court aptly stated in International Paper Co. v.

Ouellette, in analyzing a similar savings clause:

We do not believe Congress intended to undermine this

carefully drawn statute through a general savings clause...

It would be extraordinary for Congress, after devising an

elaborate... system that sets clear standards, to tolerate

common-law suits that have the potential to undermine

this regulatory structure. 479 U.S. at 494, 497.

A jury sitting in a state tort action could, in eflect, amend the

“state plan” by imposing a lower effective health or safety standard.

Employers and suppliers would ignore that new “standard” at their

peril. The jury decision would have the same practical effect of a

formal amendment to the state plan, yet would be achieved in a

manner wholly inconsistent with the method adopted by Congress.

-—

(Continued)

likely that a common law decision will burden interstate commerce. A jury

determination could require new warnings and labels in facilities located within

a state. In addition, the decision will require frequent modifications in product

labels, materiai safety data sheets, or other warning programs now used to

communicate hazards. Companies with multistate operations may have to

develop special labels or warnings designed to cope with the new “Pedraza”

standard. This is exactly the type of extraterritorial effect that forces the

conclusion that the decision imposes an undue burden on interstate com-

merce. Ifadopted by a state regulatory agency, a proposed state plan with these

effects would surely be rejected by OSHA. To permit a jury to do what a state

agency cannot further undermines the operation of the federal OSHA program.

17

CONCLUSION

For the reasons stated above, Shell Oil Company's Petition

for a Writ of Certiorari should be granted. If certiorari is granted,

the Court may wish to consider this case in conjunction with its

consideration of Gade, No. 90-1676, as both cases involve the

preemptive effect of OSHA standards on state law.

Respectfully submitted,

David F. Zoll

Donald D. Evans

Michael P. Walls*

Chemical Manufacturers

Association

2501 M Street, N.W.

Washington, D.C. 20037

(202) 887-1170

Counsel For Amicus Curiae

*Counsel of Record