the scope of the HCS and consequently may be subject to state regulation.
B. The Doctrine of Ejusdem Generis Supports a Narrow Construction of the Preemptive Effect of the HCS
The doctrine of ejusdem generis requires that specific statements control the general statements in a statute or regulation. Ejusdem generis lends added support to the conclusion that the HCS does not preempt state regulation of industrial truck manufacturers or distributors because neither group is included among those explicitly regulated by the HCS.
A well-established rule of statutory interpretation, ejusdem generis, provides that, where specific words follow general words, "the general words are construed to embrace only objects similar in nature to those objects enumerated by the [subsequent specific words]." 2A C. Sands, Sutherland on Statutory Construction § 47.17, p. 188 (5th ed. 1992); see also, Breininger v. Sheet Metal Workers, 493 U.S. 67, 91-92, 107 L. Ed. 2d 388, 110 S. Ct. 424 (1989) (applying the doctrine of ejusdem generis).
In the present case, the preamble of the HCS provides that the HCS is intended to preempt any legal requirements of a state regarding the subject of "communicating information concerning hazards" to employees. 29 C.F.R. § 1910.1200(a)(2). The preamble also notes that the HCS is meant to address the subject "comprehensively." Id.
The section of the HCS immediately following the preamble, entitled "Scope and application," however, limits the reach of the HCS to cover only employers and chemical manufactures, importers, and distributors. 29 C.F.R. § 1910.1200(b). A reading of the entire HCS confirms that the HCS imposes regulation on the four groups identified in the "Scope and application" section.
Application of the doctrine of ejusdem generis to the HCS compels the conclusion that the preemptive power of the HCS extends only to state or local regulations which impose warning requirements on the four groups specifically identified in the HCS. Despite the broad the language of the preamble, the HCS, when considered in its entirety, reveals that the Court should not grant the HCS preemptive power beyond barring States from imposing hazard warning or evaluation requirements on chemical manufacturers, importers, and distributors, or employers. The foregoing careful, narrow construction of the HCS is further supported by the character of the preemption for the OSH Act intended by Congress.
C. Congress' Purposes in Passing the OSH Act Support a Narrow Construction of the Issue Preempted by the HCS
Congress' reasons for providing preemptive effect to OSH Act regulations are not as broad as some other federal laws which provide for preemption, such as ERISA. The purpose for preemption by OSH Act standards is not to eliminate discrepancies between state standards, but, rather, to avoid the imposition of conflicting or duplicative standards on the regulated groups. A reading of the HCS with the congressional rationale for preemption in mind requires a construction of the HCS which preempts only those state laws which would subject particular groups to conflicting or duplicative standards.
The extent of preemption intended by Congress is the key factor in determining whether federal law preempts state law. As explained by the plurality in Gade: "The purpose of Congress is the ultimate touchstone." Gade, 112 S. Ct. at 2382-82 (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 205, 85 L. Ed. 2d 206, 105 S. Ct. 1904 (1985)). An examination of the congressional intent behind providing preemptive power for the OSH Act reveals that the preemptive effect of the HCS should not extend beyond the scope of covering those persons explicitly regulated by the HCS.
Some federal statutes provide for expansive preemption. ERISA, for instance, explicitly states that ERISA "supersede[s] any and all State laws insofar as they may now or hereafter relate to any employee benefit plan . . . ." 29 U.S.C. § 1144(a). The ERISA preemption clause is a "'virtually unique preemption provision' whose language is 'conspicuous for its breadth' and [is] 'deliberately expansive.'" Trustees of Elec. Workers Health & Welfare Trust v. Marjo Corp., 988 F.2d 865, 866 (9th Cir. 1992) (citations omitted). ERISA preempts every state law that "relates" to employee benefit plans in an attempt to establish a uniform national standard that guarantees efficient operation of the federal regulatory scheme. See Henry L. Drummonds, The Sister Sovereign States: Preemption and the Second Twentieth Century Revolution in the Law of the American Workplace, 62 Fordham L. Rev. 469, 523-24 (1993).
The OSH Act, however, is not designed to accomplish the same broad preemptive goals as ERISA. The purpose of the OSH Act is to ensure minimum standards of workplace health and safety. See 29 U.S.C. § 651(b); Gade, 112 S. Ct. at 2382; Environmental Encapsulating Corp. v. New York City, 855 F.2d 48, 59 (2d Cir. 1988) (the Act's purpose is to "assure minimum -- but not necessarily uniform -- occupational health and safety standards"). A state may supplant the federal standards, but only if the state standards meet or exceed the federal standards. 29 U.S.C. § 667(b). The OSH Act therefore does not aim to establish a uniform system of workplace health and safety regulations. Rather, the Act is designed to guarantee minimal workplace standards and to ensure that "employers and employees [are subject] to only one set of regulations, be it federal or state." Gade, 112 S. Ct. at 2383.
A reading of the HCS with the specific preemptive purpose of the OSH Act in mind supports a narrow construction of the "issue" addressed by the HCS. As explained above, the scope of the HCS does not extend beyond the requirements imposed upon employers and chemical handlers. An interpretation of the HCS that extends the preemptive effect of the HCS beyond the clear scope of the HCS would ignore the fact that Congress' primary concern in providing for preemption in the OSH Act was to ensure minimal standards and to avoid the imposition of duplicative regulations on workers and employers.
The plurality in Gade repeatedly emphasized that Congress provided the OSH Act with preemptive powers in order to avoid placing duplicative regulations on workers and employers. See Gade, 112 S. Ct. at 2384, 2385. The Gade plurality briefly hinted, however, that Congress may have intended a broader preemptive power for the OSH Act. The Gade plurality noted that a subsection of the OSH Act provides that the Secretary of Labor shall approve a state plan if, in the Secretary's judgment, the plan does not include product standards which "unduly burden interstate commerce." Gade, 112 S. Ct. at 2384 (citing 29 U.S.C. § 667(c)(2)). According to the plurality:
If a State could supplement federal regulations without undergoing the [state plan] approval process, then the protections that the [product standard provision] offers to interstate commerce would easily be undercut. It would make little sense to impose such a condition on state programs intended to supplant federal regulations and not those that merely supplement it: the burden on interstate commerce remains the same.