Thursday, November 17, 2011

OSHA Letter of Interpretation: Hazcom intended to preempt state regulatory actions, but not tort claims.

The Hazard Communication Standard

The Hazard Communication standard was given because millions of American workers work with and are potentially exposed to hazardous chemicals, but many employers and employees know little or nothing about the often serious hazards of those chemicals. 59 Fed. Reg. 6126 (Feb. 9, 1994); 48 Fed. Reg. 53280, 53282-83 (Nov. 25, 1983). Chemical exposure may cause or contribute to many serious health effects such as heart ailments, central nervous system, kidney and lung damage, sterility, cancer, burns, and rashes. Id. Some chemicals also have the potential to cause fires, explosions and other serious accidents. Id. There are an estimated 650,000 existing chemical products, and many new ones introduced annually. Id.

The standard establishes uniform requirements to make sure that the hazards of all chemicals produced or used in U.S. workplaces are evaluated, and that this hazard information is transmitted to affected employers and exposed employees. 29 CFR § 1910.1200(a)(l). It sets up a "downstream flow of information" requirement, whereby manufacturers of chemicals have the primary responsibility for generating and disseminating information about chemical hazards. 29 C.F.R. §1910.1200(b)(l). Employers using the chemicals must obtain this information and inform their employees of the hazards and the identities of workplace chemicals to which they are exposed. 29 C.F.R. §1910.1200(b)(2).

In general, responsibilities are allocated as follows: Chemical manufacturers and importers must determine the hazards of each product they produce or import. Then they, as well as intermediate distributors of the chemicals, must communicate the hazard information and associated protective measures downstream to customers through labels (which include appropriate hazard warnings) and material safety data sheets (MSDSs). 3

In addition to these workplace protections, the standard had a secondary purpose: it sought to "reduce the burden on interstate commerce produced by conflicting state and local regulations" relating to the identification of hazardous chemicals. 48 Fed. Reg. at 53334; id. at 53283 (noting "recent proliferation of state and local right-to-know laws," which subjected chemical manufacturers to "numerous different and potentially conflicting regulations"); id. at 53284 (explaining that twelve states and six local governments had enacted differing hazard communication laws and thirteen other states and three local governments were considering such enactments); id. ("The potential for conflicting or cumulatively burdensome State and local laws has been acknowledged by industry representatives to be immense").

The standard thus includes a preemption provision, §1910.1200(a)(2), which provides in pertinent part
[t]his occupational safety and health standard [the Hazcom standard] is intended to address comprehensively the issue of evaluating the potential hazards of chemicals, and communicating information concerning hazards and protective measures to employees, and to preempt any legal requirements of a state, or political subdivision of a state, pertaining to this subject.

As explained more fully below, these "legal requirements of a state ..." were limited to positive enactments of laws and regulations, and do not include the duties and remedies recognized only by tort law.

Analysis: Preemptive Effect of §1910.1200(a)(2)

A typical failure to warn tort claim involves an allegation that a manufacturer (or employer) failed to provide adequate warning about the risk of harm associated with a chemical or other product or its use. All reported decisions we have found have held that §1910.1200(a)(2) does not preempt state tort claims alleging inadequate warnings of chemical hazards. See, e.g., In re Welding Fume Prods. Liab. Litig., 364 F.Supp.2d 669, 693 (N.D.Ohio 2005); Anderson v. Airco, Inc., 2003 U.S. Dist. LEXIS 13765,2003 WL 21842085 (D.De1. July 28, 2003) York v. Union Carbide Corp., 586 N.E.2d 861, 866 (Ind. Ct. App. 1992); Fullen v. Philips Electronics North Am. Corp., 266 F.Supp.2d 471, 476 (N.D. W.Va. 2002). However, your letter referred to two unpublished cases that held that the standard preempts such state tort law claims. Bass v. Air Products, 2006 WL 1419375 (N.J. Super. A.D. 2006); Vettrus v. Ashland, No. C9-04-817 (Minn. 3d Jud. Dist. 2008).

It is the Department of Labor's position that the latter cases were decided incorrectly, and that section 1910.1200(a)(2) does not preempt a failure-to-warn state tort claim. The decisions finding preemption are inconsistent with the savings clause discussed above, because OSHA does not have the authority to broadly preempt any state tort law claim. Cf Wyeth v. Levine, 129 S. Ct. at 1201 (FDA labeling requirement not necessarily preemptive of state tort failure to warn claim where Congress did not authorize the FDA to directly preempt state tort law). OSHA therefore intended the provision to preempt only state and local laws and regulations, i.e., positive enactments, and the use of the word "requirements" is properly understood as limited to such law. This was also the common understanding of the word when the standard was announced in 1983. The regulatory history makes this limitation clear. Moreover, there does not appear to be a direct conflict between the requirements of the Hazcom standard, i. e., adequate warning, and the duty underlying a failure to warn tort claim.4

First, although the meaning or scope of the regulatory term "legal requirements" is on its face ambiguous, its intended meaning in the hazcom standard is clearly explained in the preamble. There, the Secretary describes the burden on interstate commerce arising from the recent proliferation of state and local legislative enactments that contain differing and conflicting hazard reporting requirements. 48 Fed. Reg. at 53283-84. Nowhere in that discussion is there any complaint regarding the availability of state tort remedies. Id. This is not surprising in light of the savings clause making clear that the Secretary has no authority to "enlarge or diminish or affect in any other manner the common law . . . duties . . . of employers." 29 U.S.C. 653(b)(4). Indeed, one commenter, apparently recognizing the limits of OSHA's authority to provide uniformity, stated:

While we recognize statutory limitations in this area, we believe every effort should be made to see that such a Federal standard preempts State and local efforts.
48 Fed. Reg. at 53283-84 (emphasis added). Had the Secretary believed the savings clause was inapplicable or superseded, she would have provided an explanation. But there is none.5

Moreover, both the Hazcom standard and its preamble state that in order for a state to regulate in this area, it must submit "its intended requirements" to OSHA for approval under section 18 of the OSH Act, 29 USC §667. 48 Fed. Reg. at 53284,53322-23; 29 C.F.R. §1910.1200(a)(2) (no state may adopt or enforce "any requirement" except through state plan approval process). And section 18 governs only positive enactments of state law. Gade, 505 U.S. 103-04 ("If a State wishes to regulate an issue of worker safety for which a federal standard is in effect, its only option is to obtain the prior approval of the Secretary of Labor."). State laws submitted under section 18 must be part of a state plan meeting requirements that are wholly inapposite to tort remedies. Thus, by requiring section 18 approval, Congress made clear that it did not intend for the OSH Act's preemptive effect to extend to the case-by-case judicial development of the common law, and by referring to that provision, OSHA made clear that it understood that the preemption provision in the Hazcom standard could not preempt such common law.

We note that nine years after OSHA announced the Hazcom Standard, in Cipollone v. Liggett Croup, Inc., 505 U.S. 504 (1992), a plurality of the Supreme Court ruled that the statutory term "requirement or prohibition" in a broad preemption provision in a different statute precluded certain common law claims. However, that ruling sheds no light on the Secretary's intent in the Hazcom standard, nor could it enlarge the Secretary's statutory authority by allowing her to "diminish . . . the common law rights" of parties asserting a right in tort. In any event, later Supreme Court cases clarify that the scope of the term "requirement" in a preemption provision depends on its particular statutory context, use and intent. For example, in Medtronic Inc. v. Lohr, 518 U.S. 470 (1996), the Court stated that the term "was not intended to pre-empt most, let alone all, general common-law duties enforced by damages actions." §18 U.S. at 491. Among other reasons, the Court explained that in the statute at issue there, Congress (like OSHA here) "was primarily concerned with the problem of specific, conflicting state statutes and regulations rather than the general duties enforced by common-law actions." Id. Cf: Bates v. Dow Agrosciences LLC, 544 U.S. 431,443 (2005) (observing that the term "requirements" in a preemption clause does not "invariably" extend beyond positive enactments, such as statutes and regulations, and embrace common-law duties.6

The above analysis reveals that neither the OSH Act nor the Hazcom standard expressly preempts state tort actions. Nor do they contain any indication of Congressional or agency intent to preempt such actions. This conclusion does not mean that a state tort suit could never be preempted on conflict grounds. If the Hazcom standard requires (or prohibits) a specific action that must be specifically performed (or avoided), a state could not make that action (or omission) a tort. Our review of the Hazcom standard and a typical failure to warn claim, however, reveals no such conflict. The underlying duty (allegedly breached) of such a tort claim - the provision of an adequate hazard warning - is not inconsistent with the Hazcom standard. See In re Welding Fume Products Litigation, 364 F. Supp. 2d 669, 694 (N.D. Ohio 2005) (finding "no substantial, clear, or direct conflict between the HazCom Standard and the common law duty to warn invoked by plaintiffs"); Wyeth, 129 S.Ct. at 1197-1199 (no conflict between FDA's label requirements and the common law duty to warn at issue in that case). Therefore, it is the Department of Labor's position that the Hazcom standard, as a general matter, does not preempt state tort failure to warn suits.

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