# Amicus Curiae Brief — Manufacturers Ass'n of Tri-County v. Knepper

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1987
- **Citation:** 480 U.S. 929

## Text

Pe Supreme Court, U.S,

5} FIRED
Tail
No. 86-1102 SEP 2 Ma
JOSEPH F- SPANIOL. JR.

In the Supreme Court of the United-Stetes—

OCTOBER TERM, 1987

MANUFACTURERS ASSOCIATION OF TRI-COUNTY, ET AL.,
PETITIONERS

Vv.

JAMES W. KNEPPER, JR., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
UN‘TED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

CHARLES FRIED
Solicitor General

DONALD B. AYER

Deputy Solicitor General
GEORGE R. SALEM JEFFREY P. MINEAR
Solicttor Assistant to the Solicitor General
ALLEN H. FELDMAN Department of Justice
Associate Solicitor Washington, D.C. 20530

Mary-HELEN MAUTNER (202) 633-2217

Counsel for Appellate Litigation

NATHANIEL I, SPILLER
Attorney
Department of Labor
Washington, D.C. 20210

QUESTION PRESENTED

Whether the Occupational Safety and Health Act of
1970, 29 U.S.C. (& Supp. III) 651 et seg., and the Occu-
pational Safety and Health Administration’s “Hazard
Communication” standard, 29 C.F.R. 1910.1200, preempt
provisions of the Pennsylvania Worker and Community
Right-to-Know Act,- Pa. Stat. Ann. tit. 35, § 7301 et seq.
(Purdon Supp. 1987), that regulate the evaluation OER IT OT 10
Jones V. Rath Packing Co., 430 U.S. 519 (1977)... 10
Louisiana Public Service Commission v. FCC, No.
ee eoopmsiennsetucbounent 10
Metropolitan Life Insurance Co. v. Massachusetts,
471 U.S. 724 (1985) .......:........ ey SS
Michigan Canners & Freezers Ass’n v. “Agricul-
tural Marketing & Bargaining Board, 467 U.S.
EEE a 10
New Jersey State Chamber of Commerce V.
Rughey, 774 F.2d 587 (3d Cir. 1985) _.......... 7,11, 15
Ohio Mfrs. Ass’n Vv. City of Akron, 801 F.2d 824
(6th Cir. 1986), appeal pending, No. 86-1242... 11
Pilot Life Insurance Co. Vv. Dedeaux, No. 85-1043
I css esetninhetanuacaueduoes 10, 14

IV

Cases—Continued : Page
Rice v. Santa Fe Elevator Corp., 331 U.S. 218
ENED * -cictiscteisicetieiesshinadiatiinenicessieainagiigiiaintiatiiTaibabtinans duadis 10
Rose v. Arkansas State Police, No. 85-1388 (Nov.
Sis SEIMEI aoncdchiecessnicudeatabethiousebsccatadhaienaiamaianenecebensinaieasaiine 10
Shaw v. Delta Air Lines, Inc., 463 U.S. 85
EIEN epieneeicaneenec verte ee PAE eee NI OTD 10, 14

United States v. Shimer, 367 U.S. 374 (1961)... 10, 11, 12
United Steelworkers of America v. Auchter, 763

- b FF | ReneS 5, 11
United Steelworkers of America v. Pendergrass,
819 F.2d 1268 (3d Cir. 1987) .............................. 5
Constitution, statutes and regulations:
U.S. Const. :
Art. I, § 8, Cl. 3 (Commerce Clause) -_............ 9
Art. VI, Cl. 2 (Supremacy Clause) —................ 10
Amend. V (Takings Clause) ane 9
Employee Retirement Income Security Act of
Bk ek | Lf Seen ee 14
Occupational Safety and Health Act of 1970, 29
U.S.C. (& Supp. III) 651 et seg. .......................... passim
DG i Tee ite GI I acer iccitditeciniecetcintisnecsene 2
§ 2(b) (3), 29 U.S.C. 661 (b) (8) ........................ 2
§ 2(b) (11), 29 U.S.C. 651 (b) (11) ~...2222 ee... 2
§ 3(8), 29 U.S.C. 652 (8) 3
4 4c RCS er ore Nee neree 2
Oe i I I cn ielani epee ahieitaaaseehsasinbei 6, 7
§ 18(a), 29 U.S.C. 667 (a) 2-3
§ 18(b), 29 U.S.C. 667 (b) -...-2..o nn. 3, 11
§ 18(c) (2), 29 U.S.C. 667 (c) (2) —— S
Superfund Amendmen‘s and Reauthorization Act
of 1986, Pub. L. No. 99-499, Tit. III, 100 Stat.
II ce etadhssa teeinetincncscenmsedapiviiiceesna bectecacen 16, 17, 18
S301, 160 Gent. 1720-1780 __............................ 16
§ 302, 100 Stat. 1730-1731 ...................... 16
§§ 303-305, 100 Stat. 1731-1736 _.. 16
8 ERA eee Ne eee 16
§§ 311-313, 100 Stat. 1736-1747 0... 16

§ 312, 160 Stat. 1788-1741... 17

Vv

Statutes and regulations—Continued: Page
BRD, ROG es REGRONCGE cece ecescsitsctcscicciccscnsonas 17
6 SBR, 160 Beeb, UTE RTS nnn ncccccsaseennnanese, van eee 17
is IE IE PIE cnincasnnyntnnvinccisoneiecnanathens 17
I RE I HII ikstidencidicnaishicteneeiapeceliahatdienetins 17

Worker and Community Right-to-Know Act, Pa.
Stat. Ann. tit. 35, § 7301 et seq. (Purdon rey
I i aaa alanine 1-2, 5, 6, 9, 12,

1:
6 TBG1 mete (PECRMIID) a1ccccrnenccccnscnecccseennencscnsscsas 5, 1
§ 7908(a) ................... pas eee eer ain
Tn cas saeeas cca ec aaa ee
§ 7303 (f) ............ postalieceieniiebingiiNaiaiaademeinanaaa 6,
§ 7303 (2) anes
§ 7303 (i) ........... RUE i Ei PE I:
| ON ene TAMIR et tess cos oo
a eee
ES REET NN SS.
§ 7304 (b) .............. ‘iil salssde alamaadaiileian -
DS FBG) cciscccenrennntennavenintisinintgnetinaasitnanntiibiaemmeees 6,
§ 7304 (d) hoa Paneer
§ 7304 (e) ........... pensceabaal idesdecaptiaudlcnains netmnaee
§ 7304(f) salina edianman eee
§ 7304 (z)
§ 7306 . eicahantadsacidbsisilamseccaaeemmaaen
§ 7306(a) .. ws PNET renee AR?
Ee CR IIT se . 6, 7-
TEI eT ERT Oe: |
STII siscdoinidesmsicenninmannacuphecsinbanshasehiiduiansbiaads aaa
§ 7319 (d)
§ 7320

29 C.F.R.:
Pt. 1902 ........... iadeasatn ceeds 3, 15

Section 1902.1
En
Section 1910.4 (a)

no |

WAM WA ANNIANVWAININAANNANAAY

Section 1910.1200(a) .

3
3
3
I aa 1
Section 1910.1200 (a) (2). spienicieabeidisibaidensaaaaieel 5, 11, 13

vi

Regulations—Continued : Page
Section 1910.1200(b) 1

Section 1910.1200(d) i

App. A 4

App. B 4

Section 1910.1200(e) 4

Section 1910.1200(f) {

Section 1910.1200(¢) 4

Section 1910.1200(h) 4

Pt. 1952 15-16

Miscellaneous :
18 Fed. Reg. (1983) :

p. 53280 3
p. 53281 5
p. 53284 5
ae, Ge Be rcnesnsseseeneseresnsccenecennsietuiisiisananiai 5, 11
p. 53334 5
52 Fed. Reg. (1987) :
p. 2836 16
5 ae 5, 15

H.R. Rep. 99-253, 99th Cong., Ist Sess. (1985) 16, 17

In the Supreme Court of the United States

~ OCTOBER TERM, 1987

No. 86-1102

MANUFACTURERS ASSOCIATION OF TRI-COUNTY, ET AL.,
PETITIONERS

v.

JAMES W. KNEPPER, JR., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted in response to the Court’s order
inviting the Solicitor General to express the views of the
United States.

STATEMENT

The Occupational Safety and Health Act of 1970, 29
U.S.C. (& Supp. III) 651 et seg. (OSH Act), authorizes
the Department of Labor to regulate occupational expo-
sure to hazardous chemicals. The Department’s Occupa-
tional Safety and Health Administration (OSHA) has ex-
ercised that authority through the promulgation of a
“Hazard Communication” standard governing the evalua-
tion of workplace chemical hazards and communication of
information about those hazards to employees in the man-
ufactyring sector of the national economy. 29 C.F.R.
1910.1200. Pennsylvania has enacted a similar—but
broader—statute, entitled the Worker and Community

(1)

2

Right-to-Know Act, Pa. Stat. Ann. tit. 35, § 7301 et seq.
(Purdon Supp. 1987), that regulates the evaluation and
communication of information about chemical hazards to
employees in all sectors of the economy and to the gen-
eral public.

Petitioner Manufacturers Association of Tri-County
and allied organizations initiated this suit to prevent en-
forcement of the Pennsylvania statute, arguing, among
other grounds, that the federal Hazard Communication
standard preempts the state statute. The district court
concluded that federal law preempts the state law “to the
extent [that the state law] requires employers in the
manufacturing sector to identify and disclose information
concerning workplace hazards” (Pet. App. C3). The
court of appeals affirmed in part and reversed in part,
concluding that the district court had properly found no
preemption outside the manufacturing sector, but had
erred in determining which aspects of the Pennsylvania
law applicable to the manufacturing sector are pre-
empted (id. at A8).

1. Congress enacted the OSH Act “to assure so far as
possible every working man and woman in the Nation
safe and healthful working conditions” (§ 2(b), 29 U.S.C.
651(b)). The Act effectuates this goal through a program
of cooperative federalism that includes “authorizing the
Secretary of Labor to set mandatory occupational safety
and health standards applicable to businesses affecting
interstate commerce” (§ 2(b) (3), 29 U.S.C. 651/b) (3)),
while “encouraging the States to assume the fullest re-
sponsibility for the administration and enforcement of
their occupational safety and health laws” (§ 2(b) (11),
29 U.S.C. 651(b) (11)).

Section 6 of the OSH Act specifically authorizes the
Secretary to establish federal occupational safety and
health standards and sets forth detailed procedures for
promulgating those standards (29 U.S.C. 655).' Section

1“The term ‘occupational safety and health standard’ means
a standard which requires conditions, or the adoption or use of
one or more practices, means, methods, operations, or processes,

ne

3

18(a) of the Act makes clear, however, that a state may
continue to assert “jurisdiction under State law over any
occupational safety or health issue with respect to which
no [federal] standard is in effect’ (29 U.S.C. 667(a)).
Section 18(b) further provides (29 U.S.C. 667(b)):

Any State which, at any time, desires to assume re-
sponsibility for development and enforcement therein
of occupational safety and health standards relating
to any occupational safety or health issue with re-
spect to which a Federal standard has been promul-
gated under [Section 6] shall submit a State plan
for the development of such standards and their en-
forcement.

Section 18(c) specifies that the Secretary shall approve
a state plan if, in his judgment, it meets various condi-
tions. Among those conditions, the resulting state safety
and health standards must be “at least as effective” as
the existing federal standards in providing safe and
healthful employment and places of employment (§ 18(c)
(2), 29 U.S.C. 667(c)(2)). Furthermore, the state
standards, when applicable to products used or distributed
in interstate commerce, must be “required by compelling
local conditions” and must “not unduly burden interstate
commerce” (ibid.).

The Secretary has delegated to OSHA the authority to
establish occupational safety and health standards and to
approve state plans. 29 C.F.R. 1902.1, 1910.4(a). OSHA,
in turn, has promulgated a number of federal standards
and has set out detailed regulations governing the devel-
opment, submission, and approval of state plans. See 29
C.F.R. Pts. 1902, 1910.

2. On November 25, 1983, OSHA promulgated a final
rule establishing a federal “Hazard Communication”
standard. 29 C.F.R. 1910.1200. See 48 Fed. Reg. 53280
(1983). This standard, which was established after exten-

reasonably necessary or appropriate to provide safe or healthful
employment and places of employment.” § 3(8), 29 U.S.C. 652(8).

4

sive study, public comment, and review, is intended to
“ensure that the hazards of all chemicals produced or
* ported by chemical manufacturers or importers are
evaluated, and that information concerning their haz-
ards is transmitted to affected employers and employees
within the manufacturing sector” of the national econ-
omy (29 C.F.R. 1910.1200(a)).? The standard basically
requires chemical manufacturers and importers to assess
the hazards of their products, chemical distributors to
provide this information through labeling and “material
‘safety data sheets” (MSDSs) to other manufacturers
who purchase the products, and manufacturing employers
to transmit the information to their employees through
“comprehensive hazard communication programs” (ibid.) .*

*The Hazard Communication standard relies on the Office of
Management and Budget’s Standard Industrial Classifications
(Codes 20 through 39) to determine whether an employer is within
the “manufacturing sector” of the economy. See 29 C.F.R.
1910.1200(b).

3’The Hazard Communication standard requires the chemical
manufacturer or importer to evaluate the hazards of his products
in accordance with detailed criteria. See 29 C.F.R. 1910.1200(d)
and Apps. A & B. He (or his distributor) must then ensure that
each container of hazardous chemicals leaving the workplace is
labeled with specified information. See 29 C.F.R. 1910.1200(f).
The chemical manufacturer or importer must also develop an MSDS
containing prescribed health and safety information. See 29 C.F.R.
1910.1200(g¢). He (or his distributor) must then ensure that the
MSDS is provided to all manufacturers who purchase hazardous
chemicals. Ibid.

The Hazard Communication standard further requires that the
manufacturing employer develop a written hazard communication
program for his workplace. See 29 C.F.R. 1910.1200(e). This
program must list the hazardous chemicals found in the workplace
and must specify, in accordance with prescribed criteria, the
methods the employer will use te inform employees of the associated
hazards. The employer is required to “provide employees with
information and training on hazardous chemicals in their work
area at the time of their initial assignment, and whenever a new
hazard is introduced into their work area” (29 C.#.R.1910.1200(h) ).

re
2)

OSHA expressly provided in the Hazard Communica-
tion standard that it preempts state laws “pertaining” to
the evaluation and communication of chemical hazards to
manufacturing employees. The standard expressly states
(29 C.F.R. 1910.1200(a) (2) ):

This occupational safety and health standard is in-
tended to address comprehensively the issue of eval-
uating and communicating chemical hazards to em-
ployees in the manufacturing sector, and to preempt
any state law pertaining to this subject. Any state
which desires to assume responsibility in this area
may only do so under the provisions of section 18 of
[the OSH Act], which deals with state jurisdiction
and state plans.

See 48 Fed. Reg. 53281, 53284, 53322-53323, 53334
(1983).

The United States Court of Appeals for the Third
Circuit has since affirmed the validity of OSHA’s Hazard
Communication standard. See United Steelworkers of
America Vv. Auchter, 763 F.2d 728 (1985) .*

3. On October 5, 1984, Pennsylvania enacted its
Worker and Community Right-to-Know Act, Pa. Stat.
Ann. tit. 35, § 7301 et seg. (Purdon Supp. 1987). As the
title suggests, the Pennsylvania statute is designed to pro-
vide employees and the surrounding community with in-
formation concerning hazardous chemicals stored and used
in the workplace (id. § 7301 note (preamble)). The
Pennsylvania statute is, in many respects, similar to
OSHA’s Hazard Communication standard. It requires
employers to survey workplace chemical hazards (id.

4The court of appeals also directed OSHA to consider whether
the standard should be extended to employees in the non-manufac-
turing sectors of the economy. 763 F.2d at 736, 743. On August 24,
1987, following further court order (United Steelworkers of America
v. Pendergrass, 819 F.2d 1263, 1270 (3d Cir. 1987) ), OSHA issued
a revised Hazard Communication standard, to become fully effective
on May 23, 1988. See 52 Fed. Reg. 31852 (1987) (certain require-
ments shall be effective on Sept. 23, 1987). See. discussion at
pages 15-16, infra. .

6

§ 7303(e)); it requires chemical manufacturers, import-
ers, and distributors to label containers and provide
MSDSs (id. § 7304); and it requires employers to insti-
tute employee information and training programs (id.
§ 7308).

The Pennsylvania statute also differs from the OSHA
standard in a number of significant respects. For exam-
ple, the state statute instructs a state agency to compile
a list of hazardous chemicals, rather than relying on the
chemical manufacturing industry to identify hazardous
substances (Pa. Stat. Ann. tit. 35, § 7303(a) (Purdon
Supp. 1987) ). Furthermore, the state statute, unlike the
OSHA standard, applies to both manufacturing and non-
manufacturing employers (id. § 7303(e)). It requires
an employer to provide hazard information to the general
public and to local police and fire departments (id. at
§ 7303(e) and (f)), and, upon request, to conduct an
environmental hazard survey (id. § 7303(g)). The
Pennsylvania statute also differs from the OSHA stand-
ard in a number of its specific requirements. In partic-
ular, it requires chemical manufacturers to provide label-
ing and MSDS information that is not required by the
OSHA standard, such as more detailed ingredient in-
formation for chemical mixtures (id. §§ 7304ic),
7306 (a) ).

Pennsylvania has not submitted its Worker and Com-
munity Right-to-Know Act to OSHA for review under
Section 18 of the OSH Act. The Pennsylvania statute
does provide, however, that the state law “is to be read
in conjunction with any provision of Federal law provid-
ing for the identification, labeling, or providing of in-
formation concerning hazardous substances and is in-
tended to supplement such Federal regulation in the in-
terests of protecting the health and safety of citizens of
the Commonwealth.” Pa. Stat. Ann. tit. 35, § 7319(b)
(Purdon Supp. 1987). The statute further states that the
state legislature intends to reexamine the legislation in
the event that a court’s application of federal preemption

7

principles “result[s] in lessening the burden on any em-
ployer” (id. § 73819(d)). The statute also provides that
if any provisions of the act are determined to be invalid,
the provisions shall be severable (id. § 7320).

4. Petitioners brought a suit in the United States Dis-
trict Court for the Middle District of Pennsylvania chal-
lenging the constitutionality of the Pennsylvania Right-
to-Know Act. They argued, among other contentions, that
Section 18 of the OSH Act and OSHA’s Hazard Commu-
nication standard preempt the state law (Pet. App. C2).
The district court, citing the Third Circuit’s decision in
New Jersey State Chamber of Commerce v. Hughey, 774
F.2d 587 (1985), concluded (Pet. App. C3):

[T]he Right to Know Act is entirely preempted by
federal law to the extent it requires employers in the
manufacturing sector to identify and disclose infor-
mation concerning workplace hazards. The Right to
Know Act is not preempted as it applies to employers
in the non-manufacturing sector, nor as it requires
all employers to disclose information relating to en-
vironmental hazards, except for the labeling require-
ment in the manufacturing sector.

The district court elaborated on this holding with respect
to each of the relevant provisions of the Pennsylvania
statute (id. at C7-C17). It determined that subsections
7303(e}, (f), (i), and (j) are preempted to the extent
that they require manufacturing employers to complete
hazardous substance survey forms (Pet. App. C11-C12).
The court also concluded that subsection 7304 (a) and Sec-
tion 7306 are preempted to the extent that they require
chemical suppliers to label containers shipped to manufac-
turing customers or that they require manufacturing em-
ployers to label containers in their workplace (id. at
C13-C15). It next held that subsections 7304(b), (c),
(d), (e), (f), and (g) are preempted to the extent that
they require that a chemical supplier must provide a
Pennsylvania MSDS when shipping chemicals that present
only workplace hazards to manufacturing customers (Pet.
App. C15-C16). Finally, the court determined that Sec-

8

tion 7308 is preempted to the extent that it requires man-
ufacturing employers to conduct employee training pro-
grams and that subsection 7310(a) is preempted to the
extent that it requires the Pennsylvania Department of
Labor and Industry to conduct outreach programs to
educate manufacturing employees concerning workplace
safety (Pet. App. C16-C17).°

The court of appeals affirmed in part and reversed in
part, stating (Pet. App. A8) :

We hold that the district court * * * correctly ruled
that there was no OSH Act preemption outside the
manufacturing sector, that the education and train-
ing requirement was preempted as to employees in
the manufacturing sector, and that the Department
Outreach program was preempted in that sector. We
also hold that the district court erred in holding the
hazard survey, labeling, and MSDS requirements to-
tally preempted in the manufacturing sector.

The court of appeals stated that the OSH Act and the
OSHA’s Hazard Communication standard do not ex-
pressly preempt a state law unless the law has “as its
primary purpose the promotion of occupational health
and safety through hazard communication” (Pet. App.
Al6).

The court concluded that manufacturing employers
must comply with the state statute’s hazardous substance
survey requirements because the completed survey not
only provides hazard information to employees, it also
contributes to community awareness of chemical hazards
(Pet. App. Al6-A17). The court further concluded that
chemical manufacturers must comply with the state
statute’s labeling requirements because the compieted
labels, in addition to providing hazard warnings to em-
ployees, ‘facilitate’? an employer’s compliance with the

5 The court aiso concluded that the preempted provisions were
severable and that the statute “does not violate the Commerce
Clause or constitute a taking without just compensation” (Pet.
App. C3). See id. at C17-C20. >

9

hazardous substance surveys (id. at Al18). The court
reached the same conclusion with respect to most of the
state statute’s MSDS requirements (id. at A23-A24).
The court further concluded that the OSH Act and the
Hazard Communication standard do not preempt the
hazardous substance survey, labeling, and MSDS require-
ments by implication (7d. at A17, A20, A23-A24).°

DISCUSSION

Congress has authorized OSHA to establish federal
occupational safety and health standards and has further
provided that once OSHA addresses an occupational
safety and health issue, a state must obtain federal ap-
proval before imposing occupational safety and health
regulations “re.ating to” that issue (OSH Act § 18(b),
29 U.S.C. 667(b)). OSHA has comprehensively ad-
dressed the question of workplace chemical hazard com-
munication in the manufacturing sector and has further
stated that, absent federal approval, state laws “pertain-
ing to” that issue are preempted (29 C.F.R. 1910.1200
(a) (2)). The OSH Act and OSHA’s associated regu-
lations therefore preempt the Pennsylvania’s Worker and
Community Right-to-Know Act’s provisions specifying
hazardous substance survey, labeling, and MSDS require-
ments, which have, as their primary purpose or effect,
the regulation of communication of hazard information
to manufacturing employees.

We submit that the court of appeals’ decision is ac-
cordingly incorrect. We believe, however, that the ques-
tion presented here does not presently warrant this
Court’s review. The court’s decision is troublesome and
will undoubtedly cause some confusion, but it should not
have dire consequences. Federal and state laws concern-
ing hazard communication are presently in a state of flux
in light of recent statutory and regulatory developments.

® The court of appeals affirmed the district court’s rejection of
petitioner’s Commerce Clause and Takings Clause challenges (Pet.
App. A26-A27).

10

These changes should help clarify and refine the respec-
tive roles of the federal and state governments. In the
event that they do not, there will be future opportunities
for other courts to address the question presented here
and for the Third Circuit to reconsider its views. This
Court should therefere await further developments be-
fore intervening in this complex and developing area of
the law.

1. The Supremacy Clause authorizes Congress to en-
act laws that preempt otherwise valid state legislation.
U.S. Const. Art. VI, Cl. 2.7 As this Court has said re-
peatedly, the question whether Congress has exercised
that power in any given case depends on “Congress’s
intent in enacting the federal statute at issue.” Metro-
politan Life Insurance Co. v. Massachusetts, 471 U.S.
724, 7388 (1985) (quotation marks and citations omit-
ted). “Preemption may be either express or implied, and
is compelled whether Congress’ command is explicitly
stated in the statute’s language or implicitly contained
‘in its structure and purpose.” Jbid. (quotation marks
and citations omitted). ‘‘Pre-emption may result not only
from action taken by Congress itself; a federal agency
acting within the scope of its congressionally delegated
authority may preempt state regulation.” Lowisiana
Public Service Commission v. FCC, No. 84-871 (May 27,
1986), slip op. 12.°

7 See, e.g., Pilot Life Insurance Co. Vv. Dedeauzx, No. 85-1043
(Apr. 6, 1987); International Paper Co. Vv. Ouellette, No. 85-1233
(Jan. 21, 1987); Rose v. Arkansas State Police, No. 85-1388 (Nov.
3, 1986); Metropolitan Life Insurance Co. Vv. Massachusetts, 471
U.S. 724 (1985); Michigan Canners & Freezers Ass’n VY. Agricul-
tural Marketing & Bargaining Board, 467 U.S. 461 (1984);
Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983) ; Fidelity Federal
Savings & Loan Ass’n V. De La Cuesta, 458 U.S. 141 (1982) ; Jones
v. Rath Packing Co., 430 U.S. 519 (1977) ; United States v. Shimer,
367 U.S. 374 (1961); City of Chicago v. Atchison, T. & S.F. Ry.,
357 U.S. 77 (1958); Rice v. Sante Fe Elevator Corp., 331 U.S. 218
(1947).

8 See also, e.g., ICC v. Texas, No. 85-1222( Jan. 20, 1987), slip op.
2; Hillsborough County v. Automated Medical Laboratories, Inc.,

a’

il

a. We believe that Congress’s intent in this case is
reasonably clear. Section 18(b) of the OSH Act pro-
vides that any state desiring to develop and enforce state
occupational health and safety standards “relating to any
occupational safety or health issue with respect to which
a Federal standard has been promulgated” must submit a
state plan for federal review. 29 U.S.C. 667(b). This
provision unequivocally indicates that once OSHA issues
a federal occupational safety and health standard, any
state desiring to regulate the same subject matter must
seek federal approval by submitting a “State plan for
the development of such standards and their enforce-
ment” (ibid.).

Congress, no doubt expecting that the states would
comply with Section 18(b)’s submission requirements,
did not explicitly specify the consequences of a state’s
failure to participate in the federal review process. But
the consequences are inescapable: a federal standard
preempts state regulations that “rolat[e] to” its subject
matter but have not received federal approval. Auchter,
763 F.2d at 736; see also Ohio Mfrs. Ass’n v. City
of Akron, 801 F.2d 824, 828 (6th Cir. 1986), appeal
pending, No. 86-1242; Hughey, 774 F.2d at 592-593.
Further, OSHA’s Hazard Communication standard ex-
pressly preempts any unapproved state law “pertaining
to” the evaluation and communication of chemical haz-
ards in the manufacturing sector. 29 C.F.R. 1910.1200
fa)(2). The standard’s preemption provision is fully
consistent with the language, purpose, and structure of
the OSH Act.® And OSHA’s regulatory interpretation is,

471 U.S. 707, 713 (1985); Capital Cities Cable, Inc. v. Crisp, 467
U.S. 691, 699 (1984); Fidelity Federal Savings & Loan Ass’n V.
De la Cuesta, 458 U.S. 141, 153-154 (1982); United States v.
Shimer, 367 U.S. 374, 381-383 (1961).

® The OSH Act’s phrase “relating to’ and the phrase “pertaining
to,” which appears in the standard itself, are, in this context,
synonymous. As OSHA has explained, the Hazard Communication
standard’s express preemption provision is designed to effectuate

12

of course, entitled to deference from the courts.*®

b. The crucial question in this case is the scope of
federal preemption. Pennsylvania’s Worker and Com-
munity Right-to-Know Act contains provisions that
specify practices, means, and methods for the communi-
cation of chemical hazards and that are plainly intended,
among other purposes, to regulate the communication of
workplace hazards to manufacturing employees." All of
the parties agree that the OSH Act and the OSHA
Hazard Communication standard preempt at least some
of these provisions. See Pet. App. C2-C3.

The courts below correctly recognized that the Penn-
sylvania statute is severable and that, as a general mat-
ter, federal law should preempt no more than what is
required to satisfy congressional objectives. They cor-
rectly held that OSHA’s Hazard Communication stand-
ard does not preempt the provisions of Pennsylvania law

Congress’s goal of ensuring that once a federal occupational stand-
ard is formulated, the uniform federal standard may be displaced
only by a state plan that includes standards which are “at least as
effective” as the federal standards and, in the case of goods dis-
tributed in interstate commerce, are “required by compelling local
conditions,” and do not “unduly burden interstate commerce”
(OSH Act § 18(c) (2), 29 U.S.C. 667(c)(2)). See 48 Fed. Reg.
53322-53323 (1985). Indeed, the OSH Act’s elaborate federal
approval standards would be meaningless if state regulations relat-
ing to the subject of an OSHA standard had equal validity whether
or not they had received federal approval.

10 See Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 699-700
(1984); Fidelity Federal Savings & Loan Ass’n Vv. De la Cuesta,
458 U.S. 141, 153-154 (1982); United States v. Shimer, 367 U.S.
374, 381-383 (1961). See also Chevron U.S.A. inc. Vv. Natural
Resources Defense Council, Inc., 467 U.S. 837, 843-845 (1984).

11 The Pennsylvania statute imposes obligations on both manu-
facturing and nonmanufacturing employers “to make available to
employees * * * the identity of chemicals used in the workplace,
and to make information available as to the known or suspected
health hazards posed by the use of or exposure to hazardous
substances.” Pa. Stat. Ann. tit. 35, § 7301 note (preamble) (Purdon
Supp. 1987). See generally pages 5-7, supra.

13

directed solely to communication of chemical hazards to
nonmanufacturing employees and the general public.
Significantly, they also correctly held that the Hazard
Communication standard does preempt the provisions of
the Pennsylvania law directed solely to communication
of chemical hazards to employees within the manufac-
turing sector. But we believe the court of appeals erred
in further concluding that the Hazard Communication
standard does not preempt application of state law pro-
visions—such as the Pennsylvania statute’s hazardous
substance survey, labeling, and MSDS requirements—
that are designed to communicate hazard information to
both manufacturing employees and other persons. The
court of appeals claimed to preempt only those provisions
that have as their “primary purpose the promotion of
occupational health and safety” (Pet. App. Al6). In its
application of that test, however, it effectively ruled that
chemical manufacturers and manufacturing employers
must comply with any state law provision that facilitates
both occupational and nonoccupational objectives. We
believe that this holding is incorrect.

As we have explained, OSHA’s Hazard Communication
standard preempts application of the state statute’s pro-
visions “pertaining to” communication of workplace haz-
ards in the manufacturing sector. 29 C.F.R. 1910.1200
(a) (2). As OSHA construes its own standard, it pre-
empts any state law provision that, in primary purpose
or effect, regulates the evaluation and communication of
occupational chemical hazards in the manufacturing sec-
tor. OSHA further believes that Pennsylvania’s hazard
survey, labeling, and MSDS requirements primarily ad-
dress or affect workplace hazard communication and thus
“nertain[] to” the subject of federal regulation, as the
district court below found. OSHA accordingly disagrees
with the court of appeals’ “primary purpose” formulation
to the extent that it holds that the “primary” objective
of a state provision was nonoccupational simply because

14

it served a purpose in addition to occupational safety
or health.”

2. Although we submit that the court of appeals
erred, we do not believe that the case warrants this
Court’s review. The decision below will undoubtedly
cause some confusion concerning the controlling legal
standards for federal preemption of state right-to-know
statutes and may impose additional burdens on chemical
manufacturers and manufacturing employers. But we
believe, on balance, that the case will not have great
significance and that, for several reasons, this Court’s
consideration of the issue can profitably be postponed. —

We are not convinced that the court of appeals’ deci-
sion will have important precedential effect. At present,
a number of states have enacted right-to-know statutes
without seeking federal approval. Amicus Br. 14 & n.30.
With the exception of New Jersey’s, however, none of
these statutes hagg been challenged on preemption

12 There is no occasion here to define further the contours of
federal preemption under OSHA’s Hazard Communication standard,
or for that matter, to address the scope of any “implied pre-
emption” that might exist under the OSH Act. For present pur-
poses, it is sufficient simply to recognize that OSHA's standard
expressly preempts application, in the manufacturing sector, of
state law provisions that, as their primary purpose or effect,
regulate workplace hazard communication. Petitioners (Pet. 14-
15) and their amici (Br. 17) suggest that further guidance
concerning the preemptive effect of the OSH Act and the OSHA
standard can be gleaned from decisions of this Court interpreting
the preemption provisions of the Employee Retirement Income
Security Act of 1974, 29 U.S.C. 1001 et seq. (ERISA). See Pilot
Life Insurance Co. Vv. Dedeauz, No. 85-1043 (Apr. 6, 1987) slip op. 6
(quoting Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724,
739 (1985), and Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97
(1983)). See also Fort Halifax Packing Co. v. Coyne, No. 86-341
(June 1, 1987). Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504
(1981). We do not agree with petitioner (Pet. 14-15) or their
amici (Br. 17) that those cases necessarily provide reliable guid-
ance in the OSHA preemption inquiry, and for the reasons set
forth below, see pages 14-18, infra, do not believe that this is an
appropriate case for this Court to explore this issue.

—————E——

15

grounds.” Moreover, even if other courts are faced with
the preemption issue and agree with the court of ap-
peals’ analysis, it is not at all clear that they would
apply that analysis in a manner incompatible with the
OSH Act, such is the indeterminate character of the
“primary purpose” test enunciated by the court below.

Moreover, what significance the decision might other-
wise have has been minimized by subsequent events. On
August 24, 1987, pursuant to court order (see note 4,
supra), OSHA took action that will extend its Hazard
Communication standard to the nonmanufacturing sec-
tors of the economy. See 52 Fed. Reg. 31852 (1987).
This extension, which becomes fully effective on May 23,
1988, will substantially alter the scope of federal pre-
emption in this area and may leave little room for states
to regulate any occupational hazard communication with-
out obtaining OSHA approval. The regulatory revision
probably will not moot the precise question presented
here—whether the federal standard preempts a state law
provision that provides both occupational and nonoccupa-
tional hazard information. But it is likely to diminish
substantially the importance of state right-to-know stat-
utes in the workplace and might cause those states that
have not achieved, and do not intend to seek, “state plan”
status under the OSH Act (see 29 C.F.R. Pts. 1902

18 In Hughey, the Third Circuit ruled that OSHA’s Hazard Com-
munication standard preempts the New Jersey Worker and Com-
munity Right to Know Act within the manufacturing sector to
the extent that the state statute regulates the communication of
workplace, as distinct from environmental, hazards. See 774 F.2d at
592-596. The court first articulated its “primary purpose” test in
that case. It ruled that a provision requiring manufacturers to
complete workplace hazard surveys and provide them to local
officials is preempted because the provision’s “primary purpose”
is the promotion of occupational safety and health. 774 F.2d at
595. We think that Hughey's holding cannot easily be squared
with the court’s ruling in this case. Thus, the Third Circuit's
approach to OSH Act preemption does not appear totally settled
and might be clarified in future cases.

16

and 1952) to limit their right-to-know activities exclu-
sively to the nonoccupational sphere.

In addition, Congress has recently enacted legislation

specifically addressing the states’ authority to enact non-
occupational right-to-know statutes. See Superfund
Amendments and Reauthorization Act of 1986, Pub. L.
No. 99-499, Tit. III, 100 Stat. 1728-1758 (Title III).
See also 52 Fed. Reg. 2836 (1987) (proposed regula-
tions). This far-reaching legislation (which was enacted
shortly after the court of appeals’ decision in this case)
significantly changes the entire legal landscape underly-
ing state right-to-know laws. Title III, captioned “Emer-
gency Planning and Community Right-to-Know” (100
Stat. 1728), creates a comprehensive federal framework
concernifg state nonoccupational hazard communication
programs. See H.R. Rep. 99-253, 99th Cong., 1st Sess. 59
(1985). The statute basically requires each state to es-
tablish an emergency response commission and local plan-
ning districts and committees (§ 301, 100 Stat. 1729-
1730). These organizations are responsible for the devel-
opment of an emergency response plan to be followed in
the event that facilities storing and handling “extremely
hazardous substances” (§ 302, 100 Stat. 1730-1731) re-
lease those substances into the surrounding environment.
See §§ 303-305, 100 Stat. 1731-1736.

Title III requires covered facilities to provide the En-
vironmental Protection Agency (EPA) and various state
and local agencies with extensive information concerning
other potential chemical hazards. See §§ 311-313, 100
Stat. 1736-1747. These reporting provisions build, in
large part, on OSHA’s Hazard Communication stand-
ard."* Furthermore, Title III expressly states that its

OS i cg

™ Section 311 provides that each owner or operator of a facility
that is required by the OSH Act and regulations promulgated
thereunder to prepare or have available an MSDS for a hazardous
chemical, must submit that form or a list of such chemicals to
the state’s emergency response commission, the local emergency
planning agency, and the local fire department (§ 311, 100 Stat.
1736). Title III also requires those same owners and operators to

17

provisions shall not preempt or affect state laws, subject
to a single exception: state laws enacted after August 1,
1985, that require submission of an MSDS “shall require
that the data sheet be identical in content and format”
to the federally required form, subject to a counter-
exception that states may require supplemental informa-
tion “through additional sheets attached to the data
sheet” or through another appropriate method. § 321,
100 Stat. 1747.

Thus, Title III sets forth cértain basic requirements
for hazard communication in the nonoccupational setting
and reaffirms the states’ powers to impose additional non-
occupational requirements. Title III does not moot the
present controversy but—as in the case of OSHA’s
Hazard Communication standard revisions—it is likely
to prompt states to reexamine their right-to-know laws
with an eye toward establishing federal-state harmony
in the area. Indeed, the House Energy and Commerce
Committee expressed its “hope that even where there is
some discretion, States and localities will follow the Fed-
eral program closely.” H.R. Rep. 99-253, supra, at 115."

prepare and submit hazardous chemical inventories, detailing the
amount of hazardous chemicals at the facilities (§ 312, 100 Stat.
1738-1741) and toxic chemical release reports detailing releases
of toxic substances (§ 313, 100 Stat. 1741-1747). The statute pro-
vides limited trade secret protectiun (§ 322, 100 Stat. 1747-1750),
but otherwise makes the reported information available to health
care professionals (§ 323, 100 Stat. 1750-1752) and the public
(§ 324, 100 Stat. 1752).

The committee further stated (H.R. Rep. 99-253, supra, at
115):
Because a great deal of the hazardous chemicals covered by
this title will be traveling in interstate commerce, it inakes
sense that the Federal law should control in this area.

** * It is the intent of the Committee that such additional
[MSDS] requirements be reasonable and concise. It would be
most unfortunate if the public's ability to learn about hazard-
ous chemicals in its midst would become impaired because of
a plethora of inconsistent, impractical state and _ local
requirements.

ii cae

18

We are hopeful that Pennsylvania (and other similarly
situated states) will reconsider their legislation in light
of the clear dictates of the OSH Act, the much-expanded
OSHA standard, and the newly enacted Title III. Fed-
eral law leaves no doubt that the states can pursue their
occupational hazard communication objectives through a
federally approved workplace hazard communication pro-
gram. And the states can pursue their nonoccupational
hazard communication objectives, subject to modest fed-
eral constraints, provided that they do not enact statu-
tory provisions that impermissibly commingle occupa-
tional and non-occupational objectives. Thus, we believe
that this Court should withhold action until the states
themselves have had an opportunity to act. In the event
that the dispute here persists, there will be ample oppor-
tunity for the courts to reexamine the issue and for the
Third Circuit to reconsider its decision.

CONCLUSION
The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED
Solicitor General

GEORGE R. SALEM DONALD B. AYER
Solicitor Deputy Solicitor General
ALLEN H. FELDMAN JEFFREY P. MINEAR
Associate Solicitor Assistant to the Solicitor General

MARY-HELEN MAUTNER
Counsel for Appellate Litigation

NATHANIEL I. SPILLER
Attorney

Department of Labor
SEPTEMBER 1987

bg U. S. GOVERNMENT PRINTING OFFicE; 1987 181483 43017

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2604%3A4. Public record. Not legal advice.