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June 21, 1995

INDUSTRIAL TRUCK ASSOCIATION, INC., a District of Columbia corporation, and MITSUBISHI CATERPILLAR FORKLIFT AMERICA, INC., a Delaware Corporation, Plaintiffs,
DR. CAROL HENRY, Director of the Office of Environmental Health Hazard Assessment, and DANIEL D. LUNGREN, Attorney General for the State of California, Defendants.

The opinion of the court was delivered by: RHOADES


 The present case is before the Court on Defendants' motion to dismiss and Plaintiffs' motion for summary judgment. The Court heard oral argument on both motions on April 24, 1995. The Court also accepted amicus curie briefs filed on behalf of the organizations As You Sow and Coalition of Manufacturers for Responsible Administration of Proposition 65. The Court subsequently ordered further briefing from Plaintiffs and Defendants regarding the Supreme Court case Freightliner Corp. v. Myrick, 131 L. Ed. 2d 385, 115 S. Ct. 1483 (1995).

 The Complaint filed by Plaintiffs seeks a declaratory judgment that the California Safe Drinking Water and Toxic Enforcement Act of 1986 ("Proposition 65") and its implementing regulations are preempted by the federal Occupational Safety and Health Act ("OSH Act") insofar as Proposition 65 and the regulations impose warning requirements on manufacturers and distributors of industrial trucks. After considering the historic presumption against finding preemption in areas of safety and health, rules of statutory interpretation, and the congressional intent in providing for preemption in the OSH Act, the Court concludes that no federal OSH Act standard exists with regard to whether industrial truck manufacturers or distributors must provide toxic warnings. The federal standards consequently cannot preempt Proposition 65 or the Proposition 65 regulations insofar as either the state statute or regulations require truck manufacturers or distributors to provide warnings.

 Plaintiffs' motion for summary judgment is DENIED. Defendants' motion to dismiss is GRANTED.

 I. Background

 The Occupational Safety and Health Act ("OSH Act") authorizes the Secretary of Labor to "set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce." 29 U.S.C. § 651(b)(3). Section 18 of the OSH Act provides that the OSH Act and the regulations promulgated pursuant to the OSH Act preempt state-law occupational safety and health requirements on issues that are subject to a federal standard unless the state law requirement is issued pursuant to a state plan that has been submitted to and approved by the Secretary of the U.S. Department of Labor. 29 U.S.C. § 667(a)-(c); Gade v. National Solid Wastes Management Association, 505 U.S. 88, 112 S. Ct. 2374, 120 L. Ed. 2d 73 (1992)

 One standard promulgated under the OSH Act is the Federal Hazard Communication Standard ("HCS"), 29 C.F.R. § 1910.1200 (1994). The preamble to the HCS provides that the HCS is

intended to address comprehensively the issue of evaluating the potential hazards of chemicals, and communicating information concerning hazards and appropriate protective measures to employees, and to preempt any legal requirements of a state, or political subdivision of a state, pertaining to this subject.

 29 C.F.R. § 1910.1200(a)(2). The HCS applies to "manufacturers," "importers," and "distributors" of chemicals and "employers." 29 C.F.R. § 1910.1200(b). Chemical manufacturers, importers, and distributors and employers are required to provide warnings to employees regarding the dangers associated with hazardous chemicals.

 On November 4, 1986, California voters passed Proposition 65, known as the Safe Drinking Water and Toxic Enforcement Act of 1986. The substance of Proposition 65 is similar to the provisions of the federal HCS. The "warning requirement" of Proposition 65 prohibits "person[s] in the course of doing business" from "knowingly and intentionally exposing any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual." Cal. Health & Safety Code § 25249.6

 Some of the regulations implementing Proposition 65 are by promulgated the Office of Environmental Health Hazard Assessment ("OEHHA"), and are recorded in Title 22 of the California Code of Regulations ("the Title 22 regulations"). The Title 22 regulations establish specific means of compliance with Proposition 65 warning requirements for three types of exposure: consumer produce exposures, occupational exposures, and environmental exposures. Cal. Code Regs. tit. 22, § 12601(b)-(d). The regulations define "occupational exposure" as "an exposure, in the workplace of the employer causing the exposure, to any employee." Cal. Code Regs. tit. 22, § 12601(c).

 California did not submit Proposition 65 or the Title 22 regulations to OSHA for approval as part of the State Plan until ordered to do so by the California Court of Appeal. On July 12 1990, the California Court of Appeal issued a peremptory writ ordering the California Standards Board to incorporate the Proposition 65 occupational warning requirements into the State Plan. California Labor Fed'n v. Occupational Safety and Health Standards Bd., 221 Cal. App. 3d 1547, 271 Cal. Rptr. 310 (1990). *fn1" The Standards Board complied with the state court's order by directing the California Occupational Safety and Health Standards Board ("Cal-OSHA") to promulgate what is now Title 8, Section 5194(b)(6) of the California Code of Regulations. Section 5194(b)(6) requires compliance with Proposition 65 warning requirements. Cal. Code Regs. tit. 8, § 5194(b)(6). The Standards Board incorporated Section 5194(b)(6) into the State Plan on November 21, 1991.

 After reviewing Section 5194(b)(6), OSHA concluded that the State Plan provisions are at least as effective as the federal standards and does not conflict with the federal standards, but has not granted final approval of the State Plan. The parties agree, however, that the State may enforce the provisions of the State Plan that are still pending OSHA approval.

 The parties dispute two basic issues: (1) whether a federal standard exists that preempts the warning requirement of Proposition 65 as applied to manufacturers; and (2) whether section 5194(b)(6) incorporates the general requirements included in Proposition 65 and the Title 22 regulations, thereby avoiding preemption of the general warning requirement.

 II. Legal Standards

 A. The Legal Standard for Dismissal Under Rule 12(b)(6)

 On a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6), the complaint is construed in the light most favorable to the plaintiff, and its allegations are taken as true. United States v. Gaubert, 499 U.S. 315, 327, 113 L. Ed. 2d 335, 111 S. Ct. 1267, (1991); McKinney v. De Bord, 507 F.2d 501, 503 (9th Cir. 1974). A motion to dismiss is generally viewed with disfavor, and only rarely granted. United States V. Redwood City, 640 F.2d 963, 966 (9th Cir. 1981). Factual or legal conclusions, inferences, or deductions, however, are not given a presumption of truthfulness. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.), cert. denied, 454 U.S. 1031, 70 L. Ed. 2d 474, 102 S. Ct. 567 (1901). In reviewing a complaint, a court should let the claims stand "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 B. Legal Standard for Summary Judgment Under Rule 56

 Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." One of the principal purposes of the rule is to dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). As noted by the Supreme Court, "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp., 477 U.S. at 327 (quoting Fed. R. Civ. P. 1).

 In considering a motion for summary judgment, the Court must examine all the evidence in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962). A moving party who bears the burden of proof at trial is entitled to summary judgment only when the evidence indicates that no genuine issue of material fact exists. Fed. R. Civ. P. 56(c), Celotex, 477 U.S. at 324 (1986).

 Once the moving party meets the requirement of Rule 56 by either showing that no genuine issue of material fact remains, the burden shifts to the party resisting the motion, who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). It is not enough for the party opposing a properly supported motion for summary judgment to "rest on mere allegations or denials of his pleadings." Id. Genuine factual issues must ...

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