Amicus Curiae Brief — Gade v. National Solid Wastes Management Assn.

Court, U.S.

FILED

No, 90-1676 MAR 2 1992

OFFICE GF int Cart

IN THE Lee

Supreme Court of the United States

OCTOBER TERM, 1991

MARY GADE,

- Petitioner,

NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF FOR FLAVOR & EXTRACT

MANUFACTURERS’ ASSOCIATION AND FRAGRANCE

MATERIALS ASSOCIATION AS AMICI

CURIAE IN SUPPORT OF RESPONDENT

DANIEL R. THOMPSON *

LAW OFFICES OF DANIEL R. THOMPSON

1620 “I” Street, N.W.

Suite 925

Washington, D.C. 20006

(202) 293-5800

JOHN P. MCKENNA

STOHLMAN, BEUCHERT, EGAN & SMITH

1775 Pennsylvania Avenue, N.W.

Suite 400

Washington, D.C. 20006

(202) 452-1775

Attorneys for Amici Curiae

* Counsel of Record

WILSON - Epes PRINTING Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

Page

INTEREST OF THE AMICI CURIAE......... 1

SUMMARY OF ARGUMENT ...... PE OO aA 3

SRS Se 5

THE “PURPOSE” TEST ADVOCATED BY ILL-

NOIS CONFLICTS WITH PRIOR DECISIONS

OF THIS COURT AND WOULD PERMIT THE

STATES READILY TO NULLIFY THE PRE-

EMPTIVE EFFECT OF OSHA STANDARDS.

CONCLUSION ........... siananetinadicsedtshinetamecentnnamectnnsiiniaees renee 14

ii

TABLE OF AUTHORITIES

CASES: Page

Alessi v. Raybestos-Manhattan, Inec., 451 U.S. 504

(1981) »<a+oceeenecedanesnecenseneeamniennnnenae 5, 7-8

Associated Industries v. Snow, 898 F.2d 274 (1st

Cir. 1990) .. a jd 7

Buv ironmental Encapsulating Corp. | v. . New York,

855 F.2d 48 (2d Cir. 1988) _..... 7

International Paper Co. v. Ouellette, 479 U.S. 481

$j eee cersssensesuennaiale 10

Metropolitan Life Ins. Co. , Massachusetts, 471

US. 724 (1966) ........-. eee 5

National Solid Wastes Management Ass'n v.

Killian, 918 F.2d 671 (7th Cir. 1990) ll

New Jersey State Chamber of Commerce v.

Hughey, 868 F.2d 621 (3d Cir. 1989) 2,6, 9,13

New Jersey State Chamber of Commerce v.

Hughey, 774 F.2d 587 (3d Cir. 1985) 2,7, 13

New Jersey State Chamber of Commerce v.

Hughey, 600 F. Supp. 606 (D.N.J. 1985) . 10

Pacific Gas & Elec. Co. v. State Energy Resources

Conservation & Development Comm'n, 461 U.S.

190 by nanecessansesassernenenenaasiennel PB Ae 8

Perez v. Campbell, 402 U. S. 637 (1971) ............. 8

Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983) . 6

STATUTES AND REGULATIONS:

Federal:

Clean Air Act, 42 U.S.C. § 7543 ..... 8

Employee Retirement Income Security Act of

1974, 29 U.S.C. § 1146 _. ee x

Hazard Communiciticon Standard, 29 C.F.R.

Bij}. -— ) =

Gosinnattinl Safety and Health Act, 29 U.S.C.

tT RF ee ....2, 6, 9, 10

29 U.S.C. § 667 (b) -acewesensesibssititeiaensieiaiaeaelaainnan 2,6

29 U.S.C. § 667 (e) .............5 9

29 U.S.C. § G67 (@) ........ ee odinanena . 9

29 U.S.C. § G67 (a) ee ainsi 9

Railway Safety Act, 45 U.S.C. § 434. 7

ili

TABLE OF AUTHORITIES—Continued

States: Page

New Jersey Worker and Community Right to

Know Act, 34 N.J.S.A. § 5A-1 et seq. 2,12

RULES OF PRACTICE:

Supreme Court Rule 37.3 Ditiieniiciassancsentes, 2 eG 1

FEDERAL REGISTER:

52 Fed. Reg. 31852 (1987) 2S Aan 2

48 Fed. Reg. 53280 (1983) —

46 Fed. Reg. 4412 (1981)... 12

IN THE

Suprenw Court of the United States

OCTOBER TERM, 1991

No. 90-1676

MARY GADE,

y Petitioner,

NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION

Respondent.

b

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF FOR FLAVOR & EXTRACT

MANUFACTURERS’ ASSOCIATION AND FRAGRANCE

MATERIALS ASSOCIATION AS AMICI

CURIAE IN SUPPORT OF RESPONDENT

INTEREST OF THE AMICI CURIAE

This brief is filed on behalf of the Flavor & Extract

Manufacturers’ Association of the United States, Ine.

(“FEMA”) and the Fragrance Materials Association of

the United States, Inc. (“FMA”) as amici curiae in sup-

port of the Respondent and the court below. The brief

is filed pursuant to Rule 37.3 with the written consents

of both Petitioner and Respondent, the originals of which

are being filed separately with the Court.

FMA and FEMA are respectively the national trade

associations of fragrance and flavor manufacturers.

The fragrance industry produces materials and com-

2

pounds for incorporation into household and_ personal

care products. The flavor industry produces flavors which

are incorporated into manufactured foods and beverages.

Both associations represent the majority of manufactur-

ers in their respective industries.

Amici were plaintiffs in one of the consolidated cases

reported as New Jersey State Chamber of Commerce v.

Hughey, 774 F.2d 587 13d Cir. 1985) (Hughey 1), on

appeal after remand, S868 F.2d 621 (3d Cir. 1989)

(Hughey Il), cert. denied, 492 U.S. 920 (1989). That

action challenged, inter alia, the validity of the provi-

sions of the New Jersey “Worker and Community Right

to Know Act,” N.J.S.A. £ 34:5A-1, ef seq., that re

quire employers to label containers in the workplace with

information regarding their chemical contents. FEMA

and FMA charged that such labeling was preempted by

$18tb) of the Occupational Safety and Health Act

thereafter “OSH Act’), 29 U.S.C. § 667(b), and the

provisions of the Hazard Communication Standard (here-

after “HCS"”) promulgated by the Occupational Safety

and Health Administration ‘hereafter “OSHA”), 29

C.F.R. $ 1910.1200.". The HCS requires employers to label

the very same containers with information regarding haz-

ardous substances. In two related decisions, the Court of

Appeals for the Third Circuit sustained, with minor ex-

ception, New Jersey’s labeling provisions because their

alleged “primary purpose” was to inform and_ protect

firefighters, police, and the general public rather than

the employees who actually work with the containers. As

a consequence, FEMA and FMA members with plants in

New Jersey now have to label workplace containers with

both the information required by OSHA’s standard and

the discordant information mandated by the state law.

1The HCS was promulgated in November 1982, 48 Fed. Reg.

53280, and originally applied only to emplovers in the manufactur-

ing sector such as the members of FMA and FEMA. It was ex-

tended to all emplovers in 1987. Sve 52 Fed. Rey. 21852.

3

In the decision below, the Court of Appeals for the

Seventh Circuit rejected “purpose” as the test for pre

emption and instead focused essentially upon what the

state regulation at issue actually did. Because this ap-

proach, if sanctioned by this Court, presumably would

lead to a reevaluation of Hughey and the New Jersey

labeling law, FMA and FEMA and their members have

a Vital interest in this Court’s decision. In the course of

the brief. we also hope to clarify the actual result in

Hughey, a result which dramatically illustrates the folly

of measuring the preemptive effect of $18'b) by the

ostensible “yurpose” or “ourposes” of the state law or

regulation. The //ughey decisions are difficult to follow,

in part becuuse one must consult two scparate but com-

plementary Opinions as well as the labeling provisions of

both the HCS and the New Jersey law to determine pre-

cisely what the court did. As a result, the decsions have

not been fully understood by either the courts or the

Solicitor General in his amicus brief in support of the

certiorari petition in the instant case.

This brief will not deal with all of the issues raised by

Petitioner ‘hereafter “Illinois” or “the State’). We will

not address, for example, the State’s argument that

£18'b! has no preemptive effect. Instead, we will as-

sume the correctness of the lower court’s contrary holding

and will address only the test by which such preemptive

effect is to be measured,

SUMMARY OF ARGUMENT

Section 18(b) of the OSH Act provides that a state

law or regulation “relating to any occupational safety or

health issue with respect to which a federal standard hes

been promulgated” by OSHA is ineffective in the absence

of OSHA review and approval. Seeking to avoid the pre-

emptive effect of the statute, Illinois argues that a state

law is preempted by a federal standard only if the sole

purpose of the state law or regulation is the promotion of

4

occupational safety. The State’s position is at odds with

the statute, reason, and the prior decisions of this Court.

Initially, nothing in the language f the statute makes

its preemptive reach turn on the ostensible purpose or

purposes for which a state acts. Had Congress intended

to preempt according to a state's “purpose,” it easily

could have said so. Moreover, to give controlling effect to

a state’s purpose would convert the preemption analysis

into a meaningless semantic exercise. A state could al-

ways avoid preemption simply by attributing a sole or

additional purpose to its legislation other than the pro-

motion of occupational safety. The Congressional enact-

ment would be drained of content except in the rare case

where a state is not sufficiently artful in drafting its law

or regulation.

Congress, aware that the “relating to” preemption pro-

vision could affect the states in the exercise of their regu-

latory authority, provided a safety valve whereby any

state that wishes to regulate with respect to an issue

covered by a federal standard can do so by submitting a

“nlan” to OSHA for its approval. If OSHA finds that

the regulation proposed by the state would not undermine

the effectiveness of the federal program or unduly burden

commerce, the state plan will be permitted. Thus, OSHA

review insures the integrity of the federal program while

accommodating legitimate state regulatory needs.

A “purpose” test would vitiate this protective jurisdic-

tion conferred by Congress upon OSHA. So long as a

state took care in characterizing the purpose(s) of its

law or regulaiton, it would not have to pass the gauntlet

of OSHA review. Surely Congress would not have con-

ferred upon OSHA the role of gate-keeper if it also in-

tended to allow the states to circumvent the process so

easily.

In another context, that of ERISA, this Court has

emphatically declined to equate “relating to” language

)

with a state’s ostensible purpose. In Alessi v. Raybestos-

Manhattan, Inc., 451 U.S. 504 (1981:', the Court heid

that a state law can “relate to” a federal program re-

gardiess of the state’s purpose in enactimg its law, and

that measuring preemption solely by a state’s “purpose”

‘would be an open invitation to semantic evasion of the

Congressiona! command.

So long as a state law bears more than a wholly tangen-

tial and insubstantial velation to an issue covered by

an OSHA-promulgated standard, the reeuirements of

£18(b) must be observed regardless of the state’s al-

leged purpose. Nor does it matter whether the state law

or regulation may have an “effect” upon or “relation to”

matters other than those dealt with in the federal stand-

ard. Nothing in the OSH Act requires that a state law

relate only to the matters addressed in the federal! s*and-

ard. If a state law addresses the same subject matter as

a federal standard, as it does in the instant case, the

“relating to” criterion is satisfied.

ARGUMENT

THE “PURPOSE” TEST ADVOCATED BY ILLINOIS

CONFLICTS WITH PRIOR DECISIONS OF THIS

COURT AND WOULD PERMIT THE STATES READ-

ILY TO NULLIFY THE PREEMPTIVE EFFECT OF

OSHA STANDARDS

The touchstone to preemption analysis is, of course, the

intent of Congress. Sce, e.g., Metropolitan Life Ins. Co.

v. Massachusetts, 471 U.S. 724, 747 (1985). Here, Con-

gress has specified the preemptive effect of a standard

issued pursuant to the OSH Act:

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 federa! standard has been promul-

gated under Section 655 of this title shall submit a

6

a state plan for the development of such standards

and their enforcement.

29 U.S.C. § 667(b) (emphasis added). As this Court has

emphasized in another context (ERISA), “[t]he breadth

of |the statute’s] preemptive reach is apparent from”

the “relating to” language, Shaw v. Delta Air Lines, Inc.,

463 U.S. 85, 96 (1983), and the courts “must give effect

to this plain language unless there is good reason to be-

lieve that Congress intended the language to have some

more restrictive meaning,” id. at 97.

Illinois urges this Court to hold that § 18(b) preempts

only those stute laws or regulations that have as their

sole “purpose” promotion of occupational safety. E.g.,

Petitioner’s Brief at 10-11, 33-36. If the purpose of a

state’s law were to deal with “public safety concerns in

addition to occupational safety,” it would not be pre-

empted presumably because it is not itself an occupational

standard and does not “relate to” occupational safety. Id.

at 10-11. Of course, preemption would be avoided a for-

tiovart if the sole ostensible purpose of a state law were

the promotion of “public” rather than occupational

safety.” In other words, preemption would turn upon how

artful a state is in articulating the ostensible purpose (s)

of its legislation or regulation.

As Illinois points out, the Courts of Appeals for the

First, Second, and Third Circuits have endorsed the “pur-

pose” approach, although each has articulated it some-

what differently. The Third Circuit, which had the first

try at the issue, focused on the “primary purpose” of the

state’s law. See Hughey 1, 774 F.2d at 595. In practice,

this necessarily translated into a holding that a state law

would not be deemed preempted if it had “any” purpose

* While much of the discussion in the cases and the certiorari

papers in the instant case centers on state laws with a “dual” pur-

pose, the objections to a “purpose” analysis are equally valid and

applicable even though the sole ostensible purpose of a state law is

other than occupational safety. The error lies in focusing upon a

state’s alleged “purposes,” not the duality of those purposes.

7

other than occupational safety, as the court itself appears

to have recognized in Hughey II. See 868 F.2d at 627

(noting that /ughey I panel ended its inquiry upon find-

ing a purpose other than occupational safety). And pre-

dictably, the Second Circuit, next in line, jettisoned the

“primary” component of the test and inquired instead

whether the state law had any “substantial purpose”’

other than protecting workers. See Environmental En-

capsulating Corp. v. City of New York, 855 F.2d 48, 57

(2d Cir. 1988).

Thereafter, the First Circuit held that a state law

would be preempted only if the “effect” of the law were

solely to protect workers. Associated Industries v. Snow.

898 F.2d 274, 279 (1st Cir. 1990). Any difference be-

tween this approach and the “purpose” test used by the

Second and Third Circuits is more apparent than real.

To begin with, whether one refers to purpose or effect,

the “solely” requirement has no roots in the statute

which requires only a “relation” to the issue dealt with

by OSHA, not the absence of a relation to anything else.

Moreover, while the First Circuit purported not to focus

upon the state’s purpose, a legislative purpose to protect

non-workers inevitably would be deemed dispositive, in

practice, with respect to the law’s efficacy in achieving

such purpose (iw., its “effect”). Any other outeome would

place the courts in the discredited and untenable position

of overruling the judgment of the state legislature that

its law will have the intended effect. And in Snow, the

court upheld each of the state regulations at issue on

appeal, accepting the state’s argument that the public

benefitted indirectly from the regulation of workers and

their work practices. See 898 F.2d at 279-82.

This is not the first time this Court has been urged

to hold that Congress, by using the “relation to” lan-

guage, intended that preemption turn upon a state’s pur-

pose in enacting its law or regulations." Alessi »v.

* The “relating to” language is used in a number of other federal

statutes. See, ¢.y., Railway Safety Act, 45 U.S.C. § 434 (“relating

Raybestos-Manhatton, Ine. 451 U.S. 504 (1981), in-

volved an analogous preem cion provision in ERISA (29

U.S.C. §1144(a)) applica ‘e to state laws that “relate

to” employee benefit plans.‘ This Court held unanimously

that the state law there at issue was preempted, “{w]hat-

ever |its| purpose or purposes” and even though it was

“ostensibly regulating a matter quite different from pen-

sion plans,” because it nonetheless “related to” the matter

covered by the federal statute. /d. at 524. The Court

emphasized that rejection of a “purpose” test was neces-

sary to prevent the states “from avoiding through form

the substance of the preemption provision.” Jd. at 525.

As the Court earlier had noted in Perez v. Campbell, 402

U.S. 637, 652 (1971), an implied preemption case, a

“purpose” test would permit states to avoid preemption:

by simply publishing a legislative committee report

articulating some state interest or policy—other than

frustration of the federal objective—that would be

tangentially furthered by the proposed state law...

The broad preemptive scope of § 18(b) is strongly con-

firmed by the entirety of the provision. Recognizing that

the issuance of federal standards could displace state

police power to a significant degree, Congress provided a

safety valve whereby states can continue to regulate

through the instrumentality of a “state plan,” but only if

OSHA itself is first satisfied that the effectiveness of its

standard will not be undermined by the state system. 29

to railroad safety”); Clean Air Act, 42 U.S.C. § 7543(a) (“relating

to the control of [motor vehicle} emissions”). When Congress

wishes to preempt according to “purpose,” however, it knows how

to do so. See Pacific Gas & Elec. Co. v. State Ene rgy Resources

Conservation & Development Comm'n, 461 U.S. 190 (1982) (Atomic

Energy Act; states may regulate for “purposes other than” those

underlying the federal regulation).

* Unlike ERISA, where Congress specified the object of the “relat-

ing to” language (i.¢., employee benefit plans), the OSH Act leaves

identification of the object to OSHA-—-i.e., any issue addressed in an

OSHA standard. The preemption test itself, however, is the same.

9

U.S.C. § 6671¢) (2). Had Congress intended OSHA stan-

dards to have only the minimal preemptive reach that

would result from deference to a state’s purpose, there

would have been no need for such a carefully crafted pro-

cedure for agency review of state regulations,

Allowing a state’s purpose to control the analysis would

remove any need to utilize the state plan procedure and

effectively negate OSHA’s responsibility, specifically con-

ferred by Congress, to determine whether a state law

may adversely affect a federal standard or unduly burden

commerce. These issues would be relegated to the judicial

process and the inadequacies of “implied” preemption

analysis. OSHA would no longer act as guardian of the

integrity of the federal programs, as Congress intended;

that role would be left to the federal courts.

Borrowing a thought from Hughey I (774 F.2d at

593), Illinois suggests that an OSHA standard cannot

preempt a state law that has a purpose—either sole

or addition:!—other than the promotion of occupational

safety, because OSHA’s authority is limited to the field

of occupational safety. Petitioner’s Brief at 10. It is

Congress, however, not OSHA, who has defined the scope

of preemption. Congress surely has the power to fashion

# protective jurisdiction over the Congressionally-

mandated program by directing that any state program

that relates to matters covered by a federal standard

must be reviewed by OSHA to determine its possible im-

pact upon the federal program.

Thus, the states can seek to achieve legitimate state

purposes in ways that do not relate to the matters ad-

dressed in federal standards, or they can follow the

state plan route and submit their programs for review

by OSHA.* Should this Court adopt a “purpose” approach

or its equivalent, however, the states would need do

*OSHA may reject a proposed state plan only after notice and

hearing, and its decision is reviewable in the courts of appeals. 29

U.S.C. § 667(d) and (g).

10

neither. By simply manipulating the ostensible purpose

of their legislation, the “States could do indirectly what

they could not do directly... .” Jnternational Paper Co.

v. Ouellette, 479 US. 481, 495 (1987). As the district

judge in Hughey so aptly concluded when that case was

first before him, a purpose test “would permit ready

nullification of the Section 18 preemption provision.” New

Jersey State Chamber of Commerce v. Hughey, 600 F.

Supp. 606, 622 (D.N.J. 1985).

The statutory test admittedly is not self-administering.

Because the state law or regulation must relate to the

“Sesue” dealt with in the relevant federal standard, one

must identify and characterize that issue. Moreover, the

relation cannot be wholly tangential and insubstantial.

But if there is in fact a colorable relation to the issue

aus so defined, £18(b) mandates that the state sub-

mit its law or regulation for QSHA review even though

the state’s ostensible purpose, sole or additional, is not

occupational health and safety. Nor should it matter that

the law or regulation also may have an effect upon or re-

lation to matters other than those dealt with in the fed-

eral standard. As noted above, nothing in the statute

requires that a state law relate on/y to the matters ad-

dressed in the federal standard. Clearly, if a state law

addresses the very same subject matter as a federal

standard—as it does in the instant case (training of

hazardous waste workers) and did in Hughey ‘hazard

labeling of containers in the workplace)—the “relation”

is indisputable."

We must note, in this connection, that even the analysis

articulated by the court of appeals in the instant case

might be susceptible to manipulation to circumvent OSHA

review. The court used two formulations to describe the

“The State’s acknowledgment that it intended, even in part, to

deal with occupational safety would also seem, on its face, to estab-

lish the necessary “relation.” In other words, a state’s purpose may

demonstrate, but not negate, a “relation.”

11

proper inquiry: (1) whether the state law “addresses the

same topic as a duly-promulgated OSHA regulation,”

National Solid Wastes Management Ass’n v. Killian, 918

F.2d 671, 676 (7th Cir. 1990), and (2) whether the state

law “constitutes in a direct, clear, and substantial way,

regulation of worker health and safety,” id. at 679. The

first of these is essentially a factual inquiry that is con-

sistent with the language of § 18(b) and requires aflirm-

ance of the decision below. The second, however, conceiv-

ably could make the inquiry unduly subjective by virtue

of the focus upon whether the state is regulating occu-

pational safety. It might open the door to an inquiry

focusing again upon whether the state “intended” to do so.

Dicta in the opinion arguably might give some sub-

stance to this concern. Thus, the court indicated agree-

ment with Huyhey’s holding that a state could require

employers to label containers of hazardous substances in

the workplace, even though OSHA’s hazard communica-

tion standard deals directly with the identical issue, so

long as the state calls the hazards “environmental” rather

than “workplace.” See 918 F.2d at 681; cf. id. at 682,

n.13 (applying same approach to worker training). The

instant court’s lapse is explicable, however, because it ap-

parently misapprehended the nature and scope of the

workplace labeling at issue in Hughey, even at one point

making the startling statement that the New Jersey label-

ing requirements “were not truly workplace regulations.”

Id. at 683.

In fact, the decisions of the Third Circuit illustrate

strikingly why a state’s “purpose” cannot be the measure

of preemption. As noted, OSHA’s Hazard Communication

Standard, at issue in Hughey, is concerned with inform-

ing workers of the hazards posed by chemicals in the

workplace. The standard requires, ‘fer alia, that em-

ployers evaluate all chemicals in their plants to determine

whether they are hazardous, 29 C.F.R. § 1910.1200¢d),

and affix to every container of a “hazardous” substance a

12

label identifying the substance/s) and the specific hezards

it may pose, id., § 1910.1200(f)(5). More detailed in-

formation regarding the chemicals and their hazards is

contained in accompanying material safety data sheets.

Id. § 1910.1200(g¢).

The labeling provisions of the New Jersey “Worker and

Community Right to Know Act,” N.J.S.A. § 34:5A-14,

also apply to containers in the workplace (‘and only to

such containers), but the scope and content of the label-

ing differs from that mandated by the HCS. First, the

label must identify by chemical name and CAS number?

any of the more than 2,100 hazardous substances on a list

compiled by the state. /d., § 34:5A-14‘a). Second, to in-

sure the disclosure of any “substance which is potentially

hazardous,” the label must identify “the five most pre-

dominant substances” in a container by chemical name

and CAS number, whether or not they are on the list of

hazardous substances. /d., § 34:5A-14(b). This so-called

“universal” labeling was explicitly rejected by OSHA

when it formulated the HCS. See 46 Fed. Reg. 4412,

4427 (1981); 48 Fed. Reg. 53280, 53292 (1983).

In two somewhat convoluted opinions,” the court of ap-

peals first held that the New Jersey law was preempted

in so far as it required labeling of the substances on the

list of “workplace” hazardous substances, but not for

those substances on the list that New Jersey also char-

acterized as “environmental” hazards. The court justified

this disparate treatment on the ground that the “primary

purpose” of the workplace labeling was the communication

of information to workers, except for the “environmental”

™“CAS” is an acronym for “Chemical Abstracts Survey,” a

scientific reference that assigns numbers to chemical substances.

* Because the Hughey I court never specifically discussed the

“universal” labeling requirements, the precise scope of the court’s

holding was not definitively resolved until Hughey 11. To determine

the full scope of the Hughey holdings, the two opinions must be

read together.

13

hazards whose labeling allegedly was for the benefit of fire-

fighters, police, and the public at large. See 774 F.2d at

595-96. The court further held that the state’s “uni-

versal” labeling provision—i.e., the five most predominant

substances—was not preempted because its purpose also

was to communicate information to firefighters, police,

and the public at large. See 868 F.2d at 627. And finally,

in a mind-numbing twist, the court doubled-back and ef-

fectively drained its limited preemption finding of any

significance whatever by holding that even “workplace”

hazardous substances must be labeled under the “uni-

versal” provision. See 868 F.2d at 627-28. In other words,

labeling of these substances was deemed preempted when

called “workplace” labeling but was miraculously resusci-

tated when called something eise.

The end result, of course, is that employers must comply

with all of the New Jersey labeling requirements with a

single and essentially hypothetical exception—i.e., a sub-

stance on the list of “workplace” hazards need not be

labeled in the unlikely event that it is not among the

“five most predominant” in a container. And even then,

the exception would apply only so long as the state re-

frained from also characterizing the substance as an

“environmental” hazard.

This bizarre set of tangled holdings demonstrates, we

submit, the fallacy in testing preemption by the intent

of state legislatures and regulatory bodies rather than

that of Congres. The analytical process is transformed

into a meaningless semantic exercise. So long as a state

uses the right words in describing the purpose(s) of its

law or regulation, the threat of preemption evaporates,

One would be hard-pressed to imagine a situation in which

a state, dissatisfied with an OSHA standard, would not.

be able to superimpose its own simply by representing

that it is intended solely or in part for the protection of

firefighters, police, other emergency personnel, or the

public at large.

14

CONCLUSION

The decision of the lower court should be affirmed.

Respectfully submitted,

DANIEL R. THOMPSON *

LAW OFFICES OF DANIEL R. THOMPSON

1620 “I” Street, N.W.

Suite 925

Washington, D.C. 20006

(202) 293-5800

JOHN P. MCKENNA

STOHLMAN, BEUCHERT, EGAN & SMITH

1775 Pennsylvania Avenue, N.W.

Suite 400

Washington, D.C. 20006

(202) 452-1775

Attorneys for Amici Curiae

* Counsel of Record