Appendix — New Jersey Chamber of Commerce v. Hughey

Supreme Court brief1989

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Supreme Court, US,

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OCTOBER TERM, 1988

NEW JERSEY CHAMBER OF COMMERCE; CHEMICAL INDUS-

TRY COUNCIL OF NEW JERSEY; NEW JERSEY BUSINESS

AND INDUSTRY ASSOCIATION; CHEMICAL SPECIALTIES

MANUFACTURERS ASSOCIATION, INC.; MERCK & Co.,

INC.; MAGNESIUM ELEKTRON, INC.; C.P. CHEMICALS,

INC.; EXXON CHEMICAL AMERICAS, a division of EXXON

CORPORATION; SCHERING CORPORATION; ESSEX CHEM-

ICAL CORPORATION; INGERSOLL-RAND COMPANY; AND

SHELL CHEMICAL COMPANY, a division of SHELL OIL

COMPANY, Petitioners,

RosBerT E. HUGHEY, Commissioner of Environmental Pro-

tection; J. RICHARD GOLDSTEIN, M.D., Commissioner of

Health and WILLIAM VAN NOTE, Acting Commissioner

of Labor and THE STATE OF NEW JERSEY,

Respondents.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

JOHN J. CARLIN, JR.*

DONALD J. FAY

MARTIN CRONIN

LAW OFFICES OF

JOHN J. CARLIN, JR., P.C.

30 Vreeland Road

P.O. Box 751

Florham Park, New Jersey 07932

(201) 377-3350

Attorneys for Petitioners

May 15, 1989 * Counsel of Record

SLR AST CO TENORS TEA TE A AE EH ITAA HN SE

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

APPENDIX A

APPENDIX B

TABLE OF CONTENTS

Opinion and Judgment of the United

States Court of Appeals for the Third

Circuit filed February 28, 1989

Initial Opinion of the United States

District Court for the District of New

Jersey filed January 3, 1985

Order of the United States District

Court for the District of New Jersey

entered January 11, 1985 —..................

Judgment of the United States Dis-

trict Court for the District of New

Jersey filed January 10, 1985 ..............

Order of the United States District

Court for the District of New Jersey

filed February 25, 1986 .............--.-...-..

Order of the United States Court of

Appeals for the Third Circuit entered

March 21, 1966 .....-0-+<0..::. NT lA ARSE

Opinion of the United States Court of

Appeals for the Third Circuit filed

October 10, 1985

Certified Judgment in lieu of formal

mandate entered by the United States

Court of Appeals for the Third Cir-

cuit on November 1, 1985

Opinion of the United States District

Court for the District of New Jersey

dated March 10, 1986

Opinion of United States District

Court for the District of New Jersey

filed February 5, 1988 ..............:..-.-.....-

Opinion of United States District

Court for the District of New Jersey

filed March 25, 1988

Page

25a

Sla

82a

108a

112a

12la

TABLE OF CONTENTS—Continued

APPENDIX C

APPENDIX D

APPENDIX E

Final Judgment after remand of the

United States District Court for the

District of New Jersey filed March

BG, TB nn ceccccinice ee

Order of United States District Court

for the District of New Jersey en-

tered Bay 15, 1960 wc... .seeeee

Order from the United States Court

of Appeals for the Third Circuit

granting stay pending appeal ..............

Order from the United States Court

of Appeals for the Third Circuit deny-

ing Petition for rehearing and rehear-

ing in banc dated April 7, 1989, noting

opinion filed on February 28, 1989 _..

Order granting stay of the mandate

dated May 1, 1989 ................. izes

29 U.S.C. Section 666 .............234.

29. U.S.C. Beetion Ger icveccccccccccne set

The New Jersey Worker and Commu-

nity Right-to-Know Act, N.J.S.A. 34:

OM) OF O06). cociilcccnnunnueakaneeee

47 Fed. Reg. 12103 (March 29, 1982)...

47 Fed. Reg. 12111-12 (March 29,

} |. > | ee omit Ate ye ol

48 Fed. Reg. 53280-53348 (November

thy, SOIED oi vicnsensrcnencsonioneens een

52 Fed. Reg. 31851-86 (August 24,

ROOD Soerieesconcecain nse

N.J.A.C. 8:59-5.1 to 5.8 (1985) ......

U.S. Dep’t of Commerce, Hazard Com-

munication Standard Interpretations,

Indexes, and Letters, Record No. 2592,

326-29 (June 1966) ........-ccccoccnceescouu “-

Petitioners’ Affiliates and Subsidi-

Page

150a

154a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 88-5283, 88-5332

NEW JERSEY CHAMBER OF COMMERCE, CHEMICAL IN-

DUSTRY COUNCIL OF NEW JERSEY, NEW JERSEY BUSI-

NESS AND INDUSTRY ASSOCIATION, CHEMICAL SPECIAL-

TIES MANUFACTURERS ASSOCIATION, INC., MERCK & Co.,

INC., MAGNESIUM ELKETRON, INCc., CP CHEMICALS INC.,

CHEM-MARK, INC., EXXON CHEMICALS AMERICAS, a

division of Exxon Corporation, SCHERING CORPORATION,

ESSEX CHEMICAL CORPORATION and INGERSOLL-RAND

COMPANY, and SHELL CHEMICAL COMPANY, a division

of Shell Oil Company,

New Jersey State Chamber of Commerce, Chemical Indus-

try Counsel of New Jersey; New Jersey Business and

Industry Association; Chemical Specialties Manufac-

turers Association, Inc.; Merck & Co., Inc.; Magnesium

Elektron, Inc., Exxon Chemical Americas, a division of

Exxon Corporations; Ingersoll-Rand Company; and

Shell Chemical Company, a division of Shell Oil Com-

pany,

Appellants in No. 88-5283

Vv .

ROBERT E. HUGHEY, Commissioner of Environmental Pro-

tective; J. RICHARD GOLDSTEIN, M.D., Commissioner of

Health and WILLIAM VAN NOTE, Acting Commissioner

of Labor and THE STATE OF NEW JERSEY,

Appellees in No. 88-5283

FRAGRANCE MATERIALS ASSOCIATION OF THE UNITED

STATES; FLAVOR AND EXTRACT MANUFACTURE’S AS-

SOCIATION, BUSH BOAKE ALLEN, INC., FRAGOCO, INC.,

FIRMENICH, INC., INTERNATIONAL FLAVORS AND FRA-

GRANCES, INC., ISOGENICS, INC., H.J. KOHNSTAMM &

Co., INc., V. MANE FIs, INc., NOVILLE ESSENTIAL OIL

COMPANY, INC., POLAROME MANUFACTURING CORP.,

ROURE BERTRAND DUPONT, INC., TAKASAGO USA INC.,

UNGERER & CO., AND UNIVERSAL FRAGRANCE CORPORA-

TION,

Appellants in No. 88-5332

WILLIAM VAN NOTE, Acting Comissioner for the State of

New Jersey; J. RICHARD GOLDSTEIN, Comissioner of

Health for the State of New Jersey; ROBERT E. HUGHEY,

Commissioner of Environmental Protection for the State

of New Jersey,

Appellees in No. 88-5332

and

JOSEPH H. RODRIGUEZ, Public Advocate of the State of

New Jersey; NEW JERSEY STATE INDUSTRIAL UNION

CouncIL, AFL-CIO (IUC); CITIZEN ACTION oF NEW

JERSEY ; PHILADELPHIA AREA PROJECT ON OCCUPATIONAL

SAFETY & HEALTH (PHILAPOSH); New JErsEyY

ENVIRONMENTAL LOBBY; NEW JERSEY STATE FIRE-

MEN’S MUTUAL BENEVOLENT ASSOCIATION (FMBA);

INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, NEW

JERSEY AFL-CIO (IAFF); COMMUNICATION WORKERS

OF AMERICA, & GLASS WORKERS INTERNATIONAL UNION,

AFL-CIO, LocAL 514-G; PENNSYLVANIA FEDERATION

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES,

AFL-CIO; COALITION AGAINST Toxics; LEAGUE OF CON-

SERVATION VOTERS (NEW JERSEY); STUDENT PUBLIC

INTEREST RESEARCH GROUP OF NEW JERSEY (N.J.

PIRG) ; ENVIRONMENTAL ACTION (Washington D.C.) ;

LEAGUE OF WOMEN VOTERS OF NEW JERSEY; SIERRA

CLUB (New Jersey) ; AMERICAN LUNG ASSOCIATION OF

NEW JERSEY; NEW JERSEY TENANTS ORGANIZATION

(NJTO); NEW JERSEY ASSOCIATION OF COUNTY

HEALTH OFFICERS; and NEW JERSEY HEALTH OFFICERS

_ASSOCIATION

Defendant-lntervenors in No. 88-5332

On Appeal From the United States District Court

for the District of New Jersey

(D.C. Civil Nos. 84-3255 and 84-3892)

Argued July 25, 1988

Before: HIGGINBOTHAM, BECKER and

GREENBERG, Circuit Judges

(Filed February 28, 1989)

JOHN J. CARLIN, JR. (Argued)

MARTIN CRONIN

30 Vreeland Road

P.O. Box 751

Florham Park, NJ 07932

Attorneys for Appellants in

No. 88-5283

ALFRED A. SLOCUM

Public Advocate of New Jersey

RICHARD E. SHAPIRO ( Argued)

JOSE L. FERNANDEZ

CN-50

Trenton, NJ 08625

W. CARY EDWARDS

Attorney General of New Jersey

MICHAEL 8S. BOKAR (Argued)

Senior Deputy Attorney General

Hughes Justice Complex

CN-112

Trenton, NJ 08625

JEROME BALTER

Public Interest Law Center of

Philadelphia

1315 Walnut Street

Philadelphia, PA 19107

SIDNEY REITMAN

BENNETT D. ZUROFSKY

Reitman, Parsonnet, Maisel &

Duggan

744 Broad Street

Suite 1807

Newark, NJ 07102

Attorneys for Appellees in

Nos. 88-5283 and 88-5382

JOHN P. MCKENNA (Argued)

DANIEL F. SHEA

McKenna, Shea & Crisman

1726 M Street, NW

Suite 402

Washington, DC 20036

DANIEL R. THOMPSON

900 17th Street, NW

Suite 650

Washington, DC 20006

Attorneys for Appellants

No. 88-5332

OPINION OF THE COURT

BECKER, Circuit Judge.

This appeal presents the question whether the con-

tainer labeling provisions of the New Jersey Worker and

Community Right to Know Act, N.J. Stat. Ann. § 34:5A-

14 (West 1988) (“Right to Know Act’) are preempted

by the Occupational Safety and Health Act of 1970, Pub.

L. No. 91-596, 84 Stat. 1590 (1970) (codified at 29

U.S.C. $§ 651-678 (1982 & Supp. IV 1986) (“OSH Act’’)

and the Hazard Communication Standard, 29 C.F.R.

$ 1910.1200 (1988), promulgated by the Occupational

Safety and Health Administration (“OSHA”) thereun-

der. Plaintiff-appellants New Jersey State Chamber of

Commerce and ¥ragnance Materials Association, con-

tending that the broad container labeling provisions of

the Right to Know Act are preempted by the OSH Act

and the federal standard, sought declaratory and injunc-

tive relief in the district court. Named as defendants

were various New Jersey officials charged with imple-

menting the Right to Know Act.

In New Jersey State Chamber of Commerce v. Hughey,

774 F.2d 587 (3d Cir. 1985) (“Huqhey I’’), we held that

a part of these container labeling provisions, i.e. that

part relating to the labeling of workplace hazards in the

manufacturing sector, was expressly preempted by the

OSH Act. However, we also remanded the case to the

district court to determine whether the container labeling

provisions, to the extent that they were not expressly

preempted, were nevertheless impliedly preempted be-

cause, due to the confusion allegedly engendered by the

existence of multiple labeling systems, they “in fact

stand as an obstacle to the accomplishment of the pur-

poses of the federal standard.” 774 F.2d at 596. After

a trial at which the parties presented evidence on this

issue, the district court found that the New Jersey Act

was not an obstacle to the accomplishment of the pur-

poses of the federal standard and consequently held that

the Act was not impliedly preempted by the OSH Act or

OSHA’s regulations. We stayed this judgment pending

plaintiffs’ appeal.

The Right to Know Act has separate provisions requir-

ing the labeling of containers that contain hazardous

chemicals (section 14(a)) and containers that contain

any chemicals (section 14(b)). The latter provision is

the so-called universal labeling provision. See N.J. Stat.

Ann. § 34:5A-14. Plaintiffs present both express and im-

plied preemption arguments. With respect to express

preemption, plaintiffs argue, in the alternative, that (1)

Hughey I held that the so-called universal container label-

ing provision of the New Jersey Act is expressly pre-

empted by the federal standard; (2) Hughey I did not

reach the question whether this provision of the New

Jersey Act was expressly preempted and that we should

so hold; or (3) Hughey I held that this provision was

not expressly preempted but we should reexamine that

holding because of subsequent amendments to the OSHA

Hazard Communication Standard. The amendments to

OSHA’s regulations, however, were minimal, and plain-

tiffs’ argument that this panel is free to reexamine

Hughey I’s holding is frivolous. Moreover, we read

Hughey I as holding that the universal labeling provision

was not expressly preempted.

With respect to implied preemption, plaintiffs contend

that the district court erred in its finding that the Right

to Know Act would not stand as an obstable to the ac-

complishment of the purposes of the federal standard.

However, we do not think the finding of the district

court clearly erroneous. We therefore affirm.

I. THE ALLEGEDLY CONFLICTING STATUTES

A. The New Jersey Right te Know Act (Section 14)

Section 14 of the New Jersey Right to Know Act, N.J.

Stat. Ann. $$ 35:5A-14, requires employers to label cer-

tain chemical containers.' Section 14(a) provides that

1 The relevant text of section 14 reads as follows:

a. Every employer shall have until October 30, 1985 to take

any action necessary to assure that every container at his

facility containing a hazardous substance shall bear a label

indicating the chemical name and Chemical Abstracts Service

number of the hazardous substance or the trade secret registry

number assigned to the hazardous substance. . . . Employers

shall be required to label pipelines only at the valve or valves

located at the point at which a hazardous substance enters a

facility’s pipeline system, and at normally operated valves,

outlets, vents. drains and sample connections designed to allow

the release of a hazardous substance from the pipeline.

b. Wthin two years of the effective date of this act, every

employer shal! take any action necessary to assure that every

container at his facility bears a label indicating the chemical

name and Chemical Abstracts Service number of the substance

in the container, except as provided in subsection d. of this

section, or the trade secret registry number assigned to the

substance. .. . If a container contains a mixture, an employer

shall be required to insure that the label identify the chemical

names and Chemical Abstracts Service numbers, except as pro-

vided in subsection d. of this section, or the trade secret reg-

istry numbers, of the five most predominant substances con-

tained in the mixture. The provisions of this subsection shall

not apply to any substance constituting less than 1°% of a

mixture unless the substance is present at the facility in an

aggregate amount of 500 pounds or more. Employers shall be

required to label pipelines only at the valve or valves located

at the point at which a substance enters a facility’s pipeline

system, and at normally operated valves, outlets, vents, drains

and sample connections designed to allow the release of a

substance from the pipeline. . . . These standards shall be

consistent with the intent of this subsection to provide for

‘“le]very employer shall have until October 30, 1985” to

label containers “containing a hazardous substance.” A

“hazardous substance” is defined as any substance on the

New Jersey Department of Health’s “workplace hazard-

ous substance list,” which consists of (1) ny sub-

stance... regulated by” OSHA under 29 C.F.R. part

1910, subpart z; (2) “{al|ny environmental hazardous

substance’: and (3) “{al|ny other substance which the

‘Djepartment jof Health|] ... determines poses a threat

to the health or safety of an employee.” N.J,. Stat. Ann,

£6 34:5A-3(m), 34:5A-5(a), An “environmental hazard

ous substance” is defined as any substance on the New

Jersey Department of Environmental Protection's ‘en

vironmental hazardous substance list,” which consists of

ubstances which, when “used, manufactured, stored, pack

aved, . . . disposed of ov released into the environment

of |New Jersey|,... may be linked to the incidence of

cancer; genetic mutations: physiological malfunctions .

and other diseases: or which... may pose a threat to the

public health and safety.” NJ. Stat. Ann, 84:5A-3 11)

84:5A-(38)(j), 84:5A-4(a),

Section 14/a) thus requires hazardous substance label

ing with respect to both environmental hazardous sub

stances and workplace hazardous substances that are not

the labeling of every container which may contain a substance

which is potentially hazardous.

ce. ... The Department of Health may, by rule and regulation,

certify containers labeled pursuant to any ... federal act as

labeled in compliance with the provisions of this section.

d. One year after the effective date of this act the Department

of Health shall adopt eee list of substance the contains rs of

which may be labeled with the common nas and Chemical

Abstracts Service numbers of their contents. The department

the list adopted pursuant to this subsection

their commot!

hall inelude on

only substances which are widely recognized by

name An employe hall provide the chemical name of

ibstance in a container labeled pursuant to th ibsectior

Vithin five working dat of the rou t theretor

environmental hazardous substances. Section 14a) re-

quires the label to include the “chemical name and Chem-

ical Abstracts Service number of the hazardous sub-

stance or the trade secret registry number assigned to

the hazardous substance.” °

Section 14(b) is considerably broader than section 14

(a) with respect to the containers to which it applies.

Section 14(b) requires that by August 29, 1986 (two

years after the effective date of the Act), every employer

shall label “every container at his facility’ unless the

container falls into one of a number of statutory exclu-

sions. Exclusions aside, the universal labeling require-

ments of section 14(b) apply to all chemicals, whether

hazardous or nonhazardous, If a container contains a

mixture of chemicals, an employer must ensure that the

label identifies the chemical names and Chemical Ab

tracts Service numbers or the trade secret registry num

hers of the “five most predominant substances contained

in the mixture,” although the presence of a chemical

need not be recorded on the label if it constitutes “less

than 1% of a mixture unless the substance is present

at the facility in an aggregate amount of 500 pounds or

more.” Section 14(b)’s label content requirements for

each chemical are essentially identical to section 14/a)’s

requirements; the only difference is that under section

14(b) employers may substitute the common name for

2“Chemical name” is defined as “the scientific designation of a

chemical in accordance with the nomenclature system developed by

the International Union of Pure and Applied Chemistry or the

Chemical Abstracts Service rules of nomenclature.” N.J. Stat. Ann.

§ 34:5A-3(b). “Chemical Abstracts Service number” is defined as

“the unique identification number assigned by the Chemical

Abstracts Service to chemicals.” N.J. Stat. Ann. § 34:5A-3(a). The

“trade secret registry number” is “a code number .. . assigned to

the identity of a substance in a container by the [New Jersey |

Department of Health’; the chemical name and Chemical Abstracts

Service number of a substance may be considered a trade secret

“only if the employer can establish that the substance is unknown

to competitors.” NJ, Stat. Ann, $§ 54 HA-3(v), 34:56A-3(u),

lOa

the chemical name with respect to those substances that

the Department of Health has determined “are widely

recognized by their common names.” N.J. Stat. Ann.

§ 34:5A-14(d).

B. The OSH Act and the OSHA Regulations

Section 6'b) (7) of the Occupational Safety and Health

Act of 1970, 29 U.S.C. $ 655(b) (7), and its implement-

ing regulations, 29 C.F.R. § 1910.1200, require that em-

ployers provide information to their employees concerning

hazardous chemicals. Chemical manufacturers are re-

quired to develop a material safety data sheet that con-

tains detailed information about each hazardous chemical

they produce, Employers using these hazardous chemi-

cals receive the material safety data sheets from the man-

ufacturers and must ensure that they are readily accessi-

ble to employees, 20 C.RLR, §1910,1200(e¢), Employers

must train their employees to detect the presence or re-

lease of a hazardous chemical in the work area, inform

them of the physical and health hazards of work area

chemicals, and train them in the measures necessary to

protect themselves from these chemical hazards, /d.

£ 1910.1200th),

Employer's must also label containers of hazardous chem-

icals with the identity of the hazardous chemicals and ap-

propriate hazard warning. Jd. § 1910.1200(f). “Iden-

tity” is defined as “any chemical or common name” indi-

cated on the material safety data sheet for the chemical.

Id, $ 1910.1200(¢). “Hazardous chemical” is defined as

any chemical that is a physical hazard or a health hazard.

Id. Chemical manufacturers must evaluate the hazards of

the chemicals they produce and must treat as hazard-

ous chemicals regulated by 29 C.F.R., subpart z. Jd.

standard originally applied only to the manufacturing

sector, see Hazard Communication, 48 Fed, Reg. 53,280

(1983) (final rule), OSHA has subsequently amended the

federal standard so that it covers the nonmanufacturing

sector as well, See Hazard Communication, 52 Fed, Reg,

| maa Ni

lla

31,852 (1987) (final rule); Associated Builders & Con-

tractors, Inc. v. Brock, 862 F.2d 63 (3d Cir, 1988) (up-

holding final rule).

C. Schematic Differences with Respect to Container

Labeling

Although there are numerous similarities, the federal]

scheme differs from New Jersey’s scheme with respect to

container labeling in three relevant respects. New Jersey

requires all chemical containers to be labeled; OSHA re-

quires only containers containing hazardous chemicals to

be labeled. New Jersey requires that the five most pre-

dominant substances contained in a mixture must be

labeled; OSHA has no such requirement. New Jersey

requires most labels to include the chemical name and

Chemical Abstracts Service number; with respect to chem-

ical identity, OSHA requires only the chemical or common

name, OSHA defines chemical or common name in such

a way that employers complying with the federal standard

might not be in compliance with New Jersey's standard.’

Il. EXPRESS PREEMPTION

A. Effect of the Amendment of the Hazard

Communication Standard

Plaintiffs argue that we are not bound by Hughey I

because OSHA subsequently amended the language of its

preemption regulation in Hazard Communication, 52 Fed.

Reg. at 31,860-61. Compare 29 C.F.R. § 1900.120 a) (2)

(1988) (“Under section 18 of the Act, no state or political

subdivision of a state may adopt... any requirement

relating to the issue addressed by this Federal standard.

4New Jersey requires the Chemical Abstracts Service (“CAS”)

number to be included on every chemical container. N.J. Stat. Ann.

88 34:5A-14(b); 34:5A-14(d), The federal standard contains no

such requirement, although CAS numbers may be used to identify

containers, See 29 C.FLR, §1910.1200(e) (defining “chemical

name” and “common name"),

12a

..’) (emphasis added) with 29 C.F.R. § 1900.1200(a)

(2) (1984) (“This occupational safety and health standard

is intended ... to preempt any state law pertaining to

this subject.”” (emphasis added). The first flaw in appel-

lant’s argument is that the language “relating to” does

not sweep much more broadly, if at all, than “pertaining

to.”’” Second, OSHA’s release cites Hughey I without

criticizing it and states that the purpose of the new lan-

guage is to ensure that “local laws” as well as state laws

“pertaining to occupational hazard communication are

preempted by the Federal standard.” 52 Fed. Reg. at

31,860 (emphasis added). Thus the release not only uses

the language of the old standard but also states that the

purpose of the change was not to substitute “relating to”

for “pertaining to’? but to ensure that the express pre-

emption provision of the regulation reached local as well

as state laws. Third, Hughey J does not rely upon the

“nertaining to” language of the old regulation but instead

interprets the “relating to” language of section 18(b) of

the OSH Act, Hughey I, 774 F.2d at 592. We therefore

conclude that OSHA’s subsequent amendments to the fed-

eral standards have no effect on our obligation to follow

Hughey I.

B. Does Hughey I Foreclose De Novo Assessment of the

Express Preemption Issue?

Section 18(b) of the OSH Act, 29 U.S.C. § 667(b),

expressly preempts state occupational safety and health

standards “relating to any occupational safety or health

issue with respect to which a [f]ederal standard has been

promulgated” under 29 U.S.C. § 655. The only state

standards excluded from the reach of this express pre-

emption provision are those which, unlike the New Jersey

Right to Know Act, have been approved by the Secretary

of Labor. 29 U.S.C. § 667(¢}.

The parties dispute the extent to which the New Jersey

Act “relat[es]” to the occupational safety or health issues

i3a

regulated by OSHA’s federal standard. Defendants con-

cede the obvious areas of overlap between the state and

federal requirements regarding container labeling. They

argue, however, that the New Jersey statute has a pur-

pose and scope that is broader than worker protection,

since the labeling also furnishes information to firefight-

ers, police officers, and members of the community at

large who may be endangered by the chemicals.

The threshold issue is the extent to which Hughey I

forecloses an independent asessment of these express pre-

emption questions. Hughey I construed section 18(a) as

expressly preempting a state law only “insofar as the

[law] pertains to protection of employee health and

safety,” and “only to the extent that a federal standard

regulating the same issue is already in effect.” 774 F.2d

at 593. Hughey I examined each section of the New

Jersey Act to determine the extent to which the section

pertains to employee health and safety and the extent to

which the section instead “regulate[s] other concerns.”

Id. Where the court found that a section pertains to

employee health and safety in some respect, the court held

that section 18(a) of the OSH Act preempted the section

to that extent. The overarching principle is therefore that

a provision of the New Jersey Act is preempted only to

the extent that the provision has as its “primary purpose

... the promotion of occupational health and safety... .”

774 F.2d at 595. See also Manufacturers Association of

Tri-County v. Knepper, 801 F.2d 130, 138 (3d Cir. 1986)

(applying Hughey I’s methodology to the Pennsylvania

Worker and Community Right-to-Know Act), cert. denied,

108 S. Ct. 66 (1987) .*

4 Regarding the problem of the severability of the preempted

provisions of the New Jersey Act, Hughey I held that “[tjhe

intention of the New Jersey legislature will be best advanced by

severing preempted portions of the Right to Know Act and leaving

the remainder operative.” Jd. at 598.

l4a

Hughey I dealt with the New Jersey Act’s container

labeling provision as follows (numbering added) :

[1] The labeling requirements of the federal Haz-

ard Communication Standard expressly preempt sec-

tion 34:5A-14 to the extent that they require labeling

of workplace hazards in the manufacturing sector.

[2] Section 34:5A-14 continues to operate, however,

outside... {the manufacturing sector].

[3] The Hazard Communication Standard does not

expressly preempt section 34:5A-14 to the extent that

it requires that containers of environmental hazardous

substances be labeled. [4] Plaintiffs contend that the

labeling provisions of the New Jersey Act are im-

pliedly preempted because they are an obstacle to the

accomplishment of congressional purpose in the OSH

Act. [5] Section 34:5A-14 requires that within two

years containers and pipelines be labeled with chemi-

cal names and Chemical Abstracts Service Registry

numbers of the five predominant substances passing

through them. [6]| The plaintiffs contend that com-

pliance with these labeling requirements, which are

intended to furnish information to firefighters, police

officers, and members of the community at large, will,

-if imposed on employers in the manufacturing sector,

stand as an obstacle to the accomplishment of the

purposes of the federal Hazard Communication Stand-

ard. ... 17] The district court, because it determined

that the preempted provisions of the Act were un-

severable, did not decide whether the plaintiffs were

entitled to a summary judgment that the environ-

mental hazard labelling features of the Right to

Know Act were impliedly preempted by the federal

.. .[sltandard. [8] Our examination of the sum-

mary judgment record suggests that there are dis-

puted issues of material fact which preclude a sum-

mary judgment for the plaintiffs or the defendants

on that issue.

15a

Id. at 595-96.5 The quoted passage is somewhat opaque

upon first reading, as it does not expressly distinguish

between section 14(a), regarding labeling of containers

containing a hazardous substance, and section 14(b), the

universal labeling provision. The passage does, however,

evince a clear holding.

The best place to start is the fifth sentence. The Court

there states that “Section 34:5A-14 requires that within

two years containers and pipelines be labeled with chemi-

cal names and Chemical Abstracts Service Registry num-

bers of the five predominant substances passing through

them.” This sentence must refer to section 14(b), as the

sentence does not limit the labeling requirement to haz-

ardous substances, and only section 14(b) contains the

five-predominant-substances requirement. The sixth sen-

tence of the passage states that ‘“|t|he plaintiffs contend

that compliance with these labeling requirements, which

are intended to furnish information to firefighters, police

officers, and members of the community at large, will, if

immosed on employers ... stand as an obstacle to...

the federal... [s]tandard.” In light of our understand-

ing of sentence five, we must conclude that reference to

“these labeling requirements” refers to the labeling re-

quirements of section 14(b), the universal labeling re-

quirement.

To recapitulate: given this analysis, the Court in the

sixth sentence must be deemed to have held that the re-

quirements of section 14(b) “are intended to furnish

information to firefighters, police officers, and members

of the community at large.” Under Hughey I’s “primary

5 Hughey I limited the secope of its express preemption holdings

to the New Jersey Act’s application to the manufacturing sector,

as OSHA had not yet extended the federal hazard communication

standard to the nonmanufacturing sector. With respect to the

nonmanufacturing sector, the New Jersey Act did not regulate

an “issue[] that... [was] federally regulated.” Hughey I, 774

F.2d at 593.

l6a

purpose” methodology, section 14(b) is thus addressed to

a concern other than occupational health and safety and

is therefore not expressly preempted by section 18(a) of

the OSH Act. Rather, Hughey I holds that section 14(b)

is preempted, in the words of the sixth sentence, only if

it “stand[{s] as an obstacle to the accomplishment of the

purposes of the federal ... [s]tandard.” The Court re-

manded this implied preemption question to the district

court.

We do not deny the force of plaintiffs’ contention that

another reasonable reading of section 14(b) could con-

clude that it was intended to furnish information both to

workers and nonworkers, especially since the second and

third sentences of section 14(b) ensure “employee” access

to certain information. If Hughey I had expressly ac-

knowledged the dual purpose of section 14(b), it would

then have had to determine whether a provision with such

a dual purpose “relat[ed| to any occupational safety or

health issue with respect to which a [f]ederal standard

has been promulgated,” OSH Act section 18(b), 29 U.S.C.

§ 667(b), and set forth an explicit rationale as to why.

While appellants may take such arguments to a higher

court, we are not free to consider them, as Hughey I is a

binding precedent of this court which a subsequent panel

may not overrule. U.S. Court of Appeals for the Third

Circuit Int. Op. P. 8(c).

In construing Hughey I, plaintiffs place great weight

on the first sentence of the quoted passage, which states

that “[t]he labeling requirements of the federal Hazard

Communication Standard expressly preempt section 34:

5A-14 to the extent that they require labeling of work-

place hazards in the manufacturing sector.” We do not

read this sentence as speaking, however, to whether sec-

tion 14(b), the universal labeling provision, is preempted.

Since the universal labeling provision is “intended to

furnish information to firefighters, police officers, and

members of the community at large,” the Hughey I court

17a

could not have meant to exempt containers containing

workplace hazards from the universal labeling require-

ment. If the New Jersey legislature has deemed it neces-

sary that firefighters be informed of whether a container

contains a harmless substance such as water, the fire-

fighter must also need to know whether a container con-

tains a chemical sufficiently hazardous that it is con-

sidered a workplace hazard.

Hughey I did hold that part of section 14(a) was ex-

pressly preempted. The first sentence (section 14 ex-

pressly preempted ‘“‘to the extent that [il]t|] require|[s]

labeling of workplace hazards”) and the third sentence

(section 14 not expressly preempted ‘to the extent that

it requires that containers of environmental hazardous

substances be labeled”) refer to labeling requirements con-

cerning hazardous substances and hence pertain to section

14(a). Read together, these sentences state that section

14(a) is expressly preempted to the extent that it re-

quires the labeling of workplace hazards that are not also

environmental hazards. This holding comports with

Hughey I’s methodology, as it would be difficult to argue

that a labeling requirement concerning workplace hazards

that were not also environmental hazards related to any-

thing other than the concerns addressed by the federal

standard.

Hughey I thus held that section 18(a) of the OSH

Act expressly preempted section 14 of the New Jersey

Act only to the extent that section 14(a) required the

labeling of workplace hazards that were not also environ-

mental hazards.* We turn to plaintiffs’ argument that

6 Hughey I limited the reach of its express preemption holding

to the New Jersey Aci’s application to the manufacturing sector, as

OSHA had not vet extended the federal standard to the nonmanu-

facturing sector. Since the federal standard has now been ex-

tended to the nonmanufacturing sector, one might argue that

Hughey I’s express preemption holding should also be extended to

the nonmanufacturing sector. Plaintiffs, however, did not raise

this issue in the district court, so we do not reach the issue whether

18a

the overlapping state and federal regulation of workplace

hazards will interfere with OSHA’s regulatory scheme,

a matter of implied rather than express preemption.

Ill. IMPLIED PREEMPTION

A. The District Court’s Findings of Fact

The container labeling provisions of the New Jersey

Act are impliedly preempted by the federal standard if

they “in fact stand as an obstacle to the accomplishment

of the purposes of the federal standard.” Hughey 1, 774

F.2d at 596. After evaluating the expert testimony pre-

sented by both plaintiffs and defendants, the district

court held “the OSH Act and OSHA’s Hazard Communi-

cation Standard do|{ | not impliedly preempt the N.J.

Act’s environmental and universal labeling requirements.”

Dist. Ct. Op. at 31 (Feb. 5, 1988). This legal conclusion

concludes a careful and thorough opinion that succinctly

summarizes the testimony of each of the expert witnesses.

In the factual findings section of its opinion, the dis-

trict court evaluates the credibility of the expert testi-

mony and concludes that “all of the witnesses were truth-

ful and I accept as true all the facts to which they testi-

fied. Needless to say the opinions of the parties’ wit-

nesses about the ultimate factual conclusions to be drawn

were in conflict and I must determine which were the

more persuasive.” Dist. Ct. Op. at 28. The district court

then restates plaintiffs’ argument that the New Jersey

labeling requirement stands as an obstacle to the ac-

complishment of the purposes of the OSHA standard:

Plaintiffs’ basic thesis ... is that serious worker

confusion will result from the dual labeling system.

The confusion will arise, plaintiffs contend, from

nonmanufacturers need comply with section 14(a) to the extent

that it requires the labeling of workplace hazards that are not also

environmental hazards.

19a

such things as: (i) the very existence of two label-

ing systems and the inability of workers to deter-

mine which one pertains to worker hazards: (ii) the

multiplicity of labels, tending to overwhelm the OSHA

hazard labels; (iii) the labeling of hazardous com-

ponents of mixtures on containers which do not re-

quire an OSHA hazard label; (iv) the labeling of a

non-hazardous component of a mixture which is in

fact hazaidous and must carry an OSHA hazard

label; and (v) the existence of different numbering

systems which will make it difficult for a worker to

find the appropriate |OSHA material safety data

sheets].

Dist. Ct. Op. at 29. The district court then sets forth

its factual conclusion:

While unquestionably it would be possible to cause

worker confusion through inappropriate label for-

matting and positioning and through inadequate

worker training, I conclude that this is most un-

likely to occur and that the OSHA labeling require-

ments can co-exist with the Section 14(a) and (b)

labeling requirements of the N.J. Act without serious

risk of one system obstructing or interfering with

the other.

Id,

With respect to worker training, the district court

reasoned that (1) “OSHA... cannot have contemplated

that the OSHA hazard label would be the only label on

. containers!, because] the testimony established con-

clusively that without regard to New J ersey’s labeling re-

quirements, . . . containers typically contain a multitude

of labels which include such things as the chemical names,

C{hemical | A[bstract ] [Service] numbers, the manufac-

turer’s product or inventory number, safety instructions,

instructions about disposing of containers”: (2) “OSHA

training would require that workers be instructed how

to identify the OSHA hazard label amidst all the other

20a

labels”; and therefore (3) “{t]he addition of the ma-

terial required by the N.J. Act would not change the

situation materially.” Jd. at 30. With respect to for-

matting and positioning, the district court reasoned that

(1) “[{t]he OSHA label can be distinguished from all

other labels by proper formatting and positioning’; (2)

“it is in the manufacturer’s interests to alert his workers

to potential hazards’; (3) “proper formatting and po-

sitioning ... are within the contemplation of the OSHA

system”; and therefore (4) “there is no reason to believe

that proper and effective formatting and positioning will

not be the rule.” Jd. The district court thus concluded

that “{flormatting and positioning and training, all of

which are within the contemplation of the OSHA system,

will ensure that implementation of New Jersey’s en-

vironmental and universal labeling requirements will not

stand as an obstacle to the accomplishment of the pur-

poses of the federal standard.” Dist. Ct. Op. at 30-31.

B. Scope of Review

We may not set aside the district court’s factual find-

ing that the New Jersey Act would-not stand as an ob-

stacle to the accomplishment of the purposes of the fed-

eral standard unless that finding is clearly erroneous.

Fed. R. Civ. P. 52(a); see Hillsborough County v. Au-

tomated Medical Laboratories, Inc., 471 U.S. 707, 720-21

(1985) (applying Rule 52(a) in the preemption con-

text). With respect to the district court’s legal conclu-

sion that the OSHA standard does not preempt the New

Jersey Act, we exercise plenary review. See Shultz v.

Wheaton Glass Co., 421 F.2d 259, 267 (3d Cir. 1970).

The Supreme Court has summarized the clearly er-—

roneous standard of Rule 52(a) as follows:

If the district court’s account of the evidence is plau-

sible in light of the record viewed in its entirety,

the court of appeals may not reverse it even though

2la

convinced that had it been sitting as the trier of

fact, it would have weighed the evidence differently.

Where there are two permissble views of the evi-

dence, the factfinder’s choice between them cannot

be clearly erroneous. This is so even when the dis-

trict court’s findings do not rest on credibility de-

terminations....

Anderson v. Ciiy of Besesemer City, 470 U.S. 564, 573-74

(1985) (citations and paragraphing omitted).

C. Discussion

The district court heard conflicting expert testimony

as to whether the New Jersey Act would stand as an

obstacle to the accomplishment of the purposes of the

federal standard. The plaintiffs presented a number of

highly qualified experts who opined that workers would

either be confused by the additional information by the

New Jersey Act or would be overwhelmed with so much

information that they would ignore the OSHA labels.

The defendants presented a number of highly qualified

experts who testified that workers would neither be con-

fused nor overwhelmed by the addition of the New Jersey

labels and that proper worker training and label for-

matting would take care of any such problems. The dis-

trict court found that the arguments presented by the

defendants’ experts were more convincing. We do not

think that the district court’s finding was clearly er-

roneous.

The Chamber of Commerce argues that “t]he fact

that confusion can be prevented or eliminated by a modi-

fication of the OSHA labeling format and training pro-

gram presents an impermissible intrusion into the fed-

erally mandated program.” Brief at 39. We disagree.

This argument rests upon an assumption that the fed-

eral standard contemplates a fixed rather than flexible

level of training and labeling format and that any de-

22a

velopment which necessitates a change from that fixed

level or format therefore constitutes an “intrusion.”

This assumption is unfounded, as the training and for-

matting requirements of the federal standard are phrased

in flexible terms so as to remain effective despite the

multiplicity of circumstances that naturally arise in our

nation’s factories, refineries, construction sites, offices, and

other workplaces.’

The federal standard requires that ‘“|!e]mployers

ensure that employees are provided with information and

training .. . to the extent necessary to protect them in

the event of a spill or leak of a hazardous chemical from

a sealed container.” 29 C.F.R. § 1910.1200(b) (4) (iil).

The standard‘s training requirements are undeniably gen-

eral, see 29 C.F.R. § 1910.1200(h) (2) (requiring em-

ployee training in observation, hazards, and employer’s

protection program), as are the labeling requirements,

which may reasonably be construed to require that the

hazard information be presented in such a way as to pre-

vent unnecessary worker confusion between the OSHA

label and the many other labels that the district court

found were present on chemical containers.* According to

7 Indeed, plaintiff’s argument leads to a reductio ad absurdum.

If one were to categorize the OSHA training requirements as

fixed rather than flexible, New Jersey would “intrude” upon the

OSHA training were it to repeal the Right to Know Act after it

went into effect, as the OSHA training that workers receive would

naturally be altered because there would no longer be a need to

train workers to focus on the OSHA rather than New Jersey

labels (although there would still be a need to train workers to

distinguish between the OSHA labels and the many other labels

that the district court found were present on chemical containers).

8 See 29 C.F.R. § 1910.1200(f)(9) (requiring that employers

“ensure that labels or other forms of warning are legible, in

English, and prominently displayed on the container”); 29 C.F.R.

§ 1910.1200(f) (5) (ii) (requiring that employers “ensure that each

23a

the defendants’ expert testimony, adopted as a finding by

the district court, workers given proper training would

not be confused by the New Jersey labels if employers

took such easy-to-implement steps as boxing off the New

Jersey information or providing headings to inform the

reader whether the information under the headings was

required by the federal standard or New Jersey law.

This finding is certainly supported by the record.

Plaintiff Frangrance Materials also tries to escape

from clearly erroneous review by arguing that “{w]hen

a state seeks to require something that a federal agency

has decided should not be required, and thereby alters

the balance struck by the federal agency, the state law

‘conflicts’ with the federal as a matter of law.” Brief at

30. Although not labeled as such, this argument is a

species of the “occupied the field” preemption argument

and is foreclosed by our previous opinion in Hughey I.

If any state law that mandated additional labeling be-

yond that required by the federal standard were pre-

empted as a matter of law, there would have been no

need for Hughey I to remand this case to the district

court.

We therefore hold that the district court’s finding that

the Right to Know Act does not stand as an obstacle to

the accomplishment of the purposes of the federal stand-

ard is not clearly erroneous, and that the district court

correctly concluded that section 14 of the Right to Knew

Act is not impliedly preempted.

container of hazardous chemicals in the workplace is labeled . .

with ... appropriate hazard warnings’); 29 C.F.R. § 1910.1200(c)

(defining “hazard warning” as “any words, pictures, symbols, or

combination thereof appearing on a label or other appropriate form

of warning which convey the hazard(s) of the chemical(s) in the

container(s)’’).

24a

IV. CONCLUSION

The judgment of the district court will be affirmed.

This Court’s stay of the district court’s judgment pend-

ing appeal will be vacated.

A True Copy: a

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

25a

APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Civil Action No. 84-3255

NEW JERSEY STATE CHAMBER OF COMMERCE; CHEMICAL

INDUSTRY COUNCIL OF NEW JERSEY; NEW JERSEY BUsI-

NESS AND INDUSTRY ASOCIATION; CHEMICAL SPECIAL-

TIES MANUFACTURERS ASSOCIATION, INC.; MERCK & Co.,

INC.; MAGNESIUM ELEKTRON, INc.; CP CHEMICALS,

INC.; CHEM-MARK, INC.; EXXON CHEMICAL AMERICAS,

a division of Exxon Chemical Company, a division of

Exxon Corporation; SCHERING CORPORATION; ESSEX

CHEMICAL CORPORATION; INGERSOLL-RAND COMPANY;

and SHELL CHEMICAL COMPANY, a division of Shell

Oil Company, Plaintiffs,

ROBERT E. HUGHEY, Commissioner of Environmental Pro-

tection; J. RICHARD GOLDSTEIN, M.D., Commissioner of

Health, and WILLIAM VAN NOTE, Acting Commissioner

of Labor, and the STATE OF NEW JERSEY,

Defendants,

and

JOSEPH H. RODRIGUEZ, Public Advocate of the State of

New Jersey; NEW JERSEY STATE INDUSTRIAL UNION

CouncIL, AFL-CIO (IUC); CITIZEN ACTION oF NEW

JERSEY; PHILADELPHIA AREA PROJECT ON OCCUPA-

TIONAL SAFETY & HEALTH (PHILAPOSH); New

JERSEY ENVIRONMENTAL LOBBY; NEW JERSEY STATE

FIREMEN’S MUTUAL BENEVOLENT ASSOCIATION (FMBA);

26a

INTERNATIONAL ASSOCIATION OF FIREFIGHTERS OF NEW

JERSEY AFL-CIO (IAFF); COMMUNICATION WORKERS

or AMERICA, AFL-CIO (CWA); DisTRIcT THREE, IN-

TERNATIONAL UNION OF ELECTRONIC, ELECTRICAL,

TECHNICAL, SALARIED AND MACHINE WoRKERS, AFL-

CIO (IUE); INTERNATIONAL LADIES’ GARMENT WoRK-

ERS’ UNION, AFL-CIO (ILGWU); AMALGAMATED

CLOTHING AND TEXTILE WORKERS UNION, AFL-CIO,

CENTRAL AND SOUTH JERSEY JOINT BoarRD (ACTWU) ;

UNITED PAPERWORKERS INTERNATIONAL UNION, AFL-

CIO (UPIU); Om, CHEMICAL AND ATOMIC WORKERS

UNION, AFL-CIO, LocaLs 8-149, 8-760 and 8-5570

(OCAW); UNITED AUTO WorRKERS UNION, AFL-CIO,

LocaL 502 (UAW); CHEMICAL WORKERS ASSOCIATION,

INc.; INDEPENDENT OIL WORKERS UNION; TRENTON

EDUCATION ASSOCIATION; ALUMINUM, BRICK & GLASS

WORKERS INTERNATIONAL UNION, AFL-CIO, LOCAL

514-G; PENNSYLVANIA FEDERATION, BROTHERHOOD OF

MAINTENANCE OF WAY EMPLOYEES, AFL-CIO; COALI-

TION AGAINST TOXICS; LEAGUE OF CONSERVATION

Voters (NEW JERSEY) ; CLEAN WATER ACTION ( WASH-

INGTON, D.C. AND NEW JERSEY); STUDENT PUBLIC

INTEREST RESEARCH GROUP OF NEW JERSEY (N.J.

PIRG) ; ENVIRONMENTAL ACTION (WASHINGTON, D.C.) ;

LEAGUE OF WOMEN VOTERS OF NEW JERSEY; SIERRA

CLUB (NEW JERSEY) ; AMERICAN LUNG ASSOCIATION OF

NEW JERSEY; NEW JERSEY TENANTS ORGANIZATION

(NJTO) ; NEW JERSEY ASSOCIATION OF COUNTY HEALTH

OFFICERS; and NEW JERSEY HEALTH OFFICERS ASSOCI-

ATION,

Defendant-Intervenors.

27a

Civil Action No. 84-3892

FRAGRANCE MATERIALS ASSOCIATION OF THE UNITED

STATES; FLAVOR AND EXTRACT MANUFACTURE’S ASSO-

CIATION; BUSH BOAKE ALLEN, INc.; DRracoco, INC.;

FIREMENICH, INC.; INTERNATIONAL FLAVORS AND FRA-

GRANCES, INC.; ISOGENICS, INc.; H.J. KOHNSTAMM &

Co., INc.; V. MANE FILs, INc.; NOVILLE ESSENTIAL OIL

COMPANY, INC.; POLAROME MANUFACTURING COoRP.;

ROURE BERTRAND DUPONT, INc.; TAKASAGO USA, INc.;

UNGERER & Co.; and UNIVERSAL FRAGRANCE CORPORA-

TION, Plaintiffs,

WILLIAM VAN NOTE, Acting Commissioner of Labor for

State of New Jersey; J. RICHARD GOLDSTEIN, Commis-

sioner of Health for State of New Jersey; ROBERT E.

HUGHEY, Commissioner of Environmental Protection

for State of New Jersey,

Defendants,

and

JOSEPH H. RODRIGUEZ, Public Advocate of the State of

New Jersey; NEW JERSEY STATE INDUSTRIAL UNION

CouNncIL, AFL-CIO (IUC); CITIZEN ACTION oF NEW

JERSEY; PHILADELPHIA AREA PROJECT ON OCCUPA-

TIONAL SAFETY & HEALTH (PHILAPOSH); New

JERSEY ENVIRONMENTAL LOBBY; NEW JERSEY STAT!

FIREMEN’S MUTUAL BENEVOLENT ASSOCIATION (FMBA);

INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, NEW

JERSEY AFL-CIO (IAFF); COMMUNICATION WORKERS

OF AMERICA, AFL-CIO (CWA); DistricT THREE, IN-

TERNATIONAL UNION OF ELECTRONIC, ELECTRICAL,

TECHNICAL, SALARIED AND MACHINE WoRKERS, AFL-

CIO (IUE); INTERNATIONAL LADIES’ GARMENT WoORK-

28a

ERS’ UNION, AFL-CIO (ILGU) ; AMALGAMATED CLOTH-

ING AND TEXTILE WORKERS UNION, AFL-CIO, CENTRAL

AND SOUTH JERSEY JOINT BoARD (ACTWU); UNITED

PAPERWORKERS INTERNATIONAL UNION, AFL-CIO

(UPIU) ; OIL, CHEMICAL AND ATOMIC WORKERS UNION,

AFL-CIO, LocaALs 8-149, 8-760, and 8-5570 (OCAW) ;

UNITED AUTO WORKERS UNION, AFL-CIO, LocaAL 502

(UAW); CHEMICAL WORKERS ASSOCIATION, INC.; IN-

DEPENDENT OIL WORKERS UNION; TRENTON EDUCATION

ASSOCIATION ; ALUMINUM, BRICK & GLASS WORKERS IN-

TERNATIONAL UNION, AFL-CIO, LOCAL 514-G PENN-

SYLVANIA FEDERATION, BROTHERHOOD OF MAINTENANCE

OF WAY EMPLOYEES, AFL-CIO; COALITION AGAINST

Toxics; LEAGUE OF CONSERVATION VOTERS (NEW

JERSEY); CLEAN WATER ACTION (WASHINGTON, D.C.

and NEW JERSEY); STUDENT PUBLIC INTEREST RE-

SEARCH GROUP OF NEW JERSEY (N.J. PIRG) ; ENVIRON-

MENTAL ACTION (WASHINGTON, D.C.) LEAGUE OF

WOMEN VOTERS OF NEW JERSEY; SIERRA CLUB (NEW

JERSEY); AMERICAN LUNG ASSOCIATION OF NEW

JERSEY; NEW JERSEY TENANTS ORGANIZATION (NJTO) ;

NEW JERSEY ASSOCIATION OF COUNTY HEALTH OFFI-

CERS; and NEW JERSEY HEALTH OFFICERS ASSOCIATION,

Defendant-Intervenors.

Opinion

[Filed Jan. 3, 1985]

Appearances:

Farrell, Curtis, Carlin & Davidson, Esgqs.

By: John L. Carlin, Jr., Esq.

Lisa J. Pollak, Esq.

43 Maple Avenue

P.O. Box 145

Morristown, N.J. 07960

Attorneys for Plaintiffs in Civil 84-3255.

29a

Lawrence A. Casha, Esq.

By: Frank C. Azzinaro, Esq.

628 Main Road

P.O. Box 242

Towaco, N.J.

and

Daniel R. Thompson, Esq.

900 17th Street, N.W.

Suite 650

Washington, D.C. 20006

and

McKenna & Shea, Esqs.

By: John P. McKenna, Esq.

1726 M Street, N.W.

Suite 802

Washington, D.C. 20036

Attorneys for Plaintiffs in Civil 84-3892.

Irwin I. Kimmelman, Esq.

Attorney General of New Jersey

By: Michael S. Bokar, Esq.

Deputy Attorney General

Richard J. Hughes Justice Complex

CN 112

Trenton, NJ. 08625

Attorney for Defendants in Civil 84-3255

and 84-3892.

Joseph H. Rodriguez, Esq.

Public Advocate

By: Richard A. Goldberg, Esq.

Sharon A. Treat, Esq.

Assistant Deputies Public Advocate

Department of the Public Advocate

Division of Public Interest Advocacy

Richard J. Hughes Justice Complex

25 Market Street

CN 850

Trenton, NJ 08625

and

30a

Public Interest Law Center of Philadelphia

1315 Walnut Street

Suite 1632

Philadelphia, PA 19107

and

Reitman, Parsonnet, Maisel & Duggan, Esgqs.

By: Bennett D. Zurofsky, Esq.

744 Broad Street

Suite 1807

Newark, NJ 07102

Attorneys for Defendant-Intervenors in Civil

84-3255 and 84-3892.

DEBEVOISE, District Judge.

I. The Proceedings

These two consolidated actions challenge the New Jer-

sey Worker and Community Right to Know Act (the

“Right to Know Act”), N.J.S.A. 34:5A-1, et seq., primar-

ily on the ground that the Act is preempted by regula-

tions or standards promulgated under the federal Occu-

pational Safety and Health Act of 1970 (the “OSH

Act”),! 29 U.S.C. §§ 651, et seq. Plaintiffs further con-

1] have tried to minimize the use of initials and acronyms. To

assist the reader of this opinion, the following will be used from

time to time:

CAS Numbers —Chemical Abstract Service registry numbers.

DEP —New Jersey’s Department of Environmental

Protection.

EPA —The federal Environmental Protection Agency.

FIFRA —Federal Insecticide, Fungicide, and Rodenti-

cide Act, 7 U.S.C. §§ 136, et seq.

MSDS —Material Safety Data Sheets required under

the New Jersey Right to Know Act.

OSHA —Federal Occupational Safety and Health Ad-

ministration.

OSH Act —Occupational Safety and Health Act of 1970.

SIC —Standard Industrial Classification.

3la

tend that certain of the Right to Know Act’s disclosure

requirements constitute an unreasonable exercise of the

State’s police power and will result in a taking of trade

secrets without due process of law.

The plaintiffs in Civil Action No. 84-3255 (the “Cham-

ber of Commerce Action’) are the New Jersey State

Chamber of Commerce, three chemical and business as-

sociations, and eight pharmaceutical and chemical com-

panies. Defendants in that action are New Jersey’s Com-

missioner of Environmental Protection, Commissioner of

Health, Acting Commissioner of Labor, and the State of

New Jersey. Plaintiffs ask for injunctive and declaratory

relief. They seek an order directing the defendant Com-

missioners to comply with the provisions of $18 of the

OSH Act (defining federal preemption), 29 U.S.C. § 667,

and enjoining the State of New Jersey from enforcing

the obligations of the Right to Know Act. Plaintiffs seek

a declaratory judgment that §18 of the OSH Act pre-

cludes the New Jersey Commissioners from enforcing the

obligations of the Right to Know Act in light of OSHA’s

Hazard Communication Standard, 29 C.F.R. § 1910.1200,

and that the Right to Know Act is, on its face, uncon-

stitutional and preempted by $18 of the OSH Act and

the Hazard Communication Standard.

After defendants in the Chamber of Commerce Action

answered, plaintiffs moved for a preliminary injunction

against enforcement of the Right to Know Act. A hear-

ing was held on November 15, 1984.

The plaintiffs in Civil Action No. 84-3892 (the “Fra-

grance Materials Association Action”) are two associa-

tions, the members of which are engaged in the manu-

facture and sale of fragrances and fragrance materials,

and thirteen corporations which compound, mix, blend

and/or manufacture fragrances or their ingredients.

The defendants are the three New Jersey Commissioners

who are the defendants in the Chamber of Commerce

Action.

32a

Plaintiffs in the Fragrance Materials Association Ac-

tion seek to enjoin enforcement of the Right to Know

Act. After defendants answered plaintiffs moved for sum-

mary judgment on Count I (alleging preemption) and

on Count II (alleging deprivation of trade secrets with-

out just compensation) or, in the alternative, for a pre-

liminary injunction against enforcement of the Right to

Know Act. Plaintiffs’ motion was heard on December 10,

1984.

The two cases were consolidated prior to the Novem-

ber 15 and December 10 hearings. The Public Advocate

of the State of New Jersey and twenty-nine unions, en-

vironmental organizations and other interested groups

had moved to intervene. I granted the motion. The in-

tervenors cross-moved for a partial summary judgment

in their favor dismissing Counts I and II of the com-

plaint in the Fragrance Materials Association Action.

The intervenors as well as the original parties partici-

pated in the two hearings.

This opinion addresses all of the pending motions.

II. The Facts

A. The Right to Know Act: On August 29, 1983 New

Jersey’s Governor signed the Worker and Community

Right to Know Act, N.J.S.A. 34:5A-1, et seq., which be-

came effective August 29, 1984.

Defendants submitted affidavits of numerous persons

having experience and expertise in the fields of chemical

substances and occupational and community hazards re-

sulting from such substances. Included among the affi-

davits were governmental officials having responsibilities

for workplace or community protection from chemical

hazards, physicians and scientists whose careers have

been devoted to treating or preventing illnesses caused

by dangerous substances and persons familiar with the

problems of fire fighting at industrial sites.

83a

Taken together their affidavits demonstrate the ration-

ale for the Right to Know Act. New Jersey, one of the

nation’s smallest states, is also one of the most densely

populated. It has a high concentration of industry in

general and of chemical manufacturers and processors in

particular. Since World War II the number of available

chemicals has grown extraordinarily, there now being ap-

proximately 50,000 different chemicals used in industry.

Many of these are hazardous. Exposure to these hazard-

ous substances can take place in the plant where they

are used or processed; the community can be exposed

through emission in the air, through accidental leakage

from the plant or through lawful and unlawful disposal

outside the plant. Exposure can and does result in debili-

tating or fatal illness, particularly cancer, lung ailments,

sterility and birth defects.

Workers in a plant are often unaware of the dangerous

substances with which they deal, or, if they are aware,

they may not be advised of the precautions they should

take. Often employers are unaware of the dangerous

nature of the materials in their plants. The affidavits re-

cite instances in which doctors seeking to treat an em-

ployee after exposure to a chemica! substance have been

unable to do so because the employer is either unable or

unwilling to identify the substance.

Further, inhabitants of communities surrounding in-

dustrial complexes do not know the nature of chemical

vapor to which they are exposed nor do they know the pos-

sible hazards which exposure entails. Public health offi-

cials cannot advise them because they, too, quite often do

not have the necessary information. While some indus-

trial concerns go to great pains to educate and inform

both their employees and public officials of the chemical

substances in their plants, others do not. Lacking such

cooperation there was little that public officials could do

to protect citizens from the existence of harmful sub-

stances.

34a

In particular fire fighting organizations were often un-

able to obtain precise information concerning the sub-

stances with which they might have to deal in the event

of a plant fire. Further, when fires occurred, there was

often no way in which firemen could tell quickly what

substances were burning in the plants. This information

might be vital both to know how to deal with the fire

itself and to safeguard firemen and other persons in the

area.

New Jersey enacted the Right to Know Act to meet this

congeries of problems arising in the workplace and ex-

tending into the community at large. The purpose is

reflected in the Act’s legislative findings and declarations,

N.J.S.A. 34:5A-2, and in the statement of purpose con-

tained in the regulations implementing the Act. N.J.A.C.

8 :59-1.2.

The Right to Know Act requires that the New Jersey

Department of Environmental Protection the “DEP”’) de-

velop both an environmental hazardous substance list and

an environmental survey designed to enable employers to

report information about environmental hazardous sub-

stances at their facilities. N.J.S.A. 34:5A-4.

The Department of Health is required to develop four

things: (1) a workplace hazardous substance list which

must include (a) any substance regulated by the

federal Occupational Safety and Health Administration

(“OSHA”) under 29 C.F.R., Part 1910, subpart z, (b)

any environmental hazardous substance and (c) any

other substance which the Department determines poses

a threat to the health or safety of an employee; (2) “a

special health hazard substance list comprising hazardous

substances which, because of their known carcinogenicity,

mutagenicity, teratogenicity, flammability, explosiveness,

corrosivity, or reactivity pose a special hazard to health

and safety, and for which an employer shall not be per-

mitted to make a trade secret claim;” (3) a workplace

_ survey designed to facilitate the reporting by employers

35a

of hazardous substances at their facilities; and (4) a

hazardous substance fact sheet for each hazardous sub-

stance on the workplace hazardous substance list. N.J.S.A.

34:5A-5.

The Act required that within 5 days of August 29,

1984 (the effective date of the Act), the environmental

survey and the workplace survey be distributed to each

employer subject to the Act. N.J.S.A. 34:5A-6. Within

90 days of receipt of the workplace survey the employer is

required to complete it and send copies to the Department

of Health, the county health department, the local fire

department and the local police department. Within the

same time the employer is required to complete the en-

vironmental survey and send a copy to the DEP and to

the county health department and to send “pertinent sec-

tions of the survey” to the local police and fire depart-

ments. N.J.S.A. 34:5A-7.

Upon recepit of a completed workplace survey from the

employer, the Department of Health must transmit to the

employer a fact sheet (prepared by the Department, as

noted above) for each hazardous substance reported by

the employer on the workplace survey. N.J.S.A. 34:5A-8.

The Department must maintain a file of completed work-

place surveys, require that every employer update ‘its

survey annually and make available copies of the surveys

and related hazardous substance fact sheets upon request.

N.J.S.A. 34:5A-10. The DEP must maintain a file of

completed environmental surveys, require that every em-

ployer update its survey each year, and make copies of the

surveys available upon request. N.J.S.A. 34:5A-9.

Each employer must maintain at its facility a central

file in which it shall retain the workplace survey, appro-

priate hazardous substance fact sheets and, if appro-

priate, the facility’s environmental survey. Notice of

availability must be posted and employee access must be

provided. N.J.S.A. 34:5A-12. In addition the Right to

36a

Know Act contains detailed provisions mandating an

education and training program for employees, “which

shall be designed to inform employees in writing and

orally of the nature of the hazardous substances to which

they are exposed in the course of the employment and the

potential health risks which the hazardous substances

pose.” The employer must also train his employees “in

the proper and safe procedures for handling the hazardous

substances under all circumstances. N.J.S.A. 34:5A-13.

The Act also contains detailed provisions for labeling

containers containing hazardous substances and pipelines

“Within six months of the effective date of this act, every

employer shall take any action necessary to assure that

every container at his facility containing a hazardous

substance shall bear a label indicating the chemical name

and Chemical Abstracts Service number of the hazardous

substance or the trade secret registry number assigned

to the hazardous substance.” Further, “[e]mployers shall

be required to label pipelines only at the valve or valves

located at the point at which a hazardous substance enters

a facility’s pipeline system, and at normally operated

valves, outlets, vents, drains and sample connections de-

signed to allow the release of a hazardous substance from

the pipeline.” N.J.S.A. 34:5A-14.

The Act goes on to provide that “[w]lithin two years of

the effective date of this act, every employer shall take

any action necessary to assure that every container at

his facility [whether or not it contains a hazardous sub-

stance] bears a label indicating the chemical name and

Chemical Abstracts Service number of the substance in

the container... or the trade secret registry number

assigned to the substance.” If a container contains a mix-

ture of substances, the employer’s label must similarly

identify the five most predominant substances contained

in the mixture. The labeling provisions effective after two

years will not apply to any substance constituting less

than 1% of a mixture unless the substance is present at

37a

the facility in an aggregate amount of 500 pounds or

more. Provisions concerning the labeling of pipelines

parallel those applying to the period beginning six months

after the effective date of the Act. N.J.S.A. 34:5A-14.

The Right to Know Law deals with the problem that

disclosure of chemical substances in the workplace and

the labeling of containers may result in the disclosure

of trade secrets of an employer. Procedures are estab-

lished whereby an employer may claim that specified in-

formation disclosed in an environmental survey or in a

workplace survey or through the labeling process consti-

tutes a trade secret. If the DEP or the Department of

Health disputes the trade secret claim an administrative

hearing and subsequent court review are available. Until

the dispute is resolved and after a trade secret claim is

either accepted by the agency or favorably adjudicated,

confidentiality must be preserved except that disclosure

may be made to a physician when such information is

needed for medical diagnosis or treatment. N.J.S.A.

34 :5A-15.

Trade secret protection is not accorded, however, to

substances on the special health hazard substance list,

“for which an employer shall not be permitted to make a

trade secret claim” N.J.S.A. 34:5A-5b. The Department

of Health has prepared a workplace hazardous substance

list consisting of 2051 items. Of these 835 are on the

special health hazard list. Of the 835 substances 335 are

carcinogens, mutagens (causing genetic mutations) and

teratogens (causing birth defects) and are considered

special health hazard substances in a pure form or in a

mixture at a concentration of 0.1% or greater. The

other 500 substances are flammable, explosive, reactive

or corrosive substances and are considered special healt!

hazard substances in a pure form or in a mixture

very high concentrations, eg., 80°, 90°, 95°. Se

Rosenman Affidavit, Defendants’ App. at Al9

38a

The DEP and the Department of Health have adopted

regulations implementing the Right to Know Act,

N.J.A.C. 7:1G-12, et. seq., N.J.A.C. 8:59-1.1, et seq. As

required by the Act, environmental surveys and work-

place surveys have been distributed to each employer in

the State subject to the Act, including the manufacturing

and processing concerns which are plaintiffs in the Cham-

ber of Commerce and the Fragrance Materials Associa-

tion cases. Unless enforcement of the Act is enjoined the

employers must complete and file them as required by

the Act.

B. The OSH Act: In 1970 Congress enacted the Occu-

pational Safety and Health Act of 1970 (“OSH Act”’).

29 U.S.C. $$ 651, et seq. Finding that personal injuries

and illnesses arising out of work situations imposed a

substantial burden on interstate commerce, Congress

sought to assure working persons safe and healthful work-

ing conditions by, among other things, (1) authorizing

the Secretary of Labor to set mandatory occupational

safety and health standards applicable to businesses af-

fecting interstate commerce, (ii) exploring ways to dis-

ver latent diseases. establishing causal connections be-

ses al work. environmental conditions and

n : g roblems, (iil

sory re Y eYN-

ad I na! |

~ ‘ Tie

> ’ oft a

39a

The Secretary of Labor is given the power and the

duty to promulgate, modify or revoke occupational safety

or health standards in order to implement the purposes

of the OSH Act. 29 U.S.C. $655. An “occupational

safety and health standard” is defined as “a standard

which requires conditions, or the adoption or use of one

or more practices, means, methods, operations, or proc-

esses, reasonably necessary or appropriate to provide safe

or healthful employment and places of employment.” 29

U.S.C. § 652(8).

In particular 29 U.S.C. § 655(b) (7) provides in part:

(7) Any standard promulgated under this sub-

section shall prescribe the use of labels or other ap-

propriate forms of warning as are necessary to in-

sure that employees are apprised of all hazards to

which they are exposed, relevant symptoms and ap-

propriate emergency treatment, and proper condi-

tions and precautions of safe use or exposure. Where

appropriate, such standard shall also prescribe suit-

able protective equipment and control or technological

procedures to be used in connecion with such hazards

and shall provide for monitoring or measuring em-

ployee exposure at such locations and intervals, and

in such manner as may be necessary for the protec-

tion of employees. ...

In order to carry out the purposes of the Act the Sec-

retary of Labor is authorized to enter, inspect and in-

vestigate places of employment. 29 U.S.C. § 657(a).

Further, the Secretary of Labor, in cooperation with the

Secretary of Health, Education and Welfare:

. shall issue regulations requiring employers to

maintain accurate records of employee exposure to

potentially toxic materials or harmful physical

agents which are required to be monitored or meas-

ured under section 655 of this title. Such regulations

shall provide employees or their representatives with

40a

an opportunity to observe such monitoring or meas-

uring, and to have access to the records thereof. Such

regulations shall also make appropriate provision for

each employee or former employee to have access to

such records as will indicate his own exposure to

toxic materials or harmful physical agents. Each

employer shall promptly notify any employee who

has been or is being exposed to toxic materials or

harmful physical agents in concentrations or at levels

which exceed those prescribed by an applicable occu-

pational safety and health standard promulgated

under section 655 of this title, and shall inform any

employee who is being thus exposed of the corrective

action being taken.

29 U.S.C. § 657(c) (3).

The statute mandates that information obtained under

the OSH Act “shall be obtained with a minimum burden

upon employers, especially those operating small busi-

nesses. Unnecessary duplication of efforts in obtaining in-

formation shall be reduced to the maximum extent feas-

ible.” 29 U.S.C. § 657(d). The Secretary of Labor and

the Secretary of Health, Education and Welfare are di-

rected to prescribe rules and regulations which they deem

necessary to carry out their responsibilities under the

OSH Act. 29 U.S.C. § 657/(g) (2).

C. OSHA’s Hazard Communication Standard: On No-

vember 25, 1983 OSHA published its final Standard for

Hazard Communication. 48 Fed. Reg. 53,340-348.° The

Standard is codified at 29 C.F.R. §§ 1910.1200, et seq.

Its purpose is stated to be:

_.. to ensure that the hazards of all chemicals

produced or imported by chemical manufacturers or

2 There are pending in the Court of Appeals for the Third Cir-

cuit petitions challenging the validity of OSHA’s Hazard Com-

munication Standard. United Steelworkers of America, et al. v.

Thorne G. Auchter, Docket Nos. 83-3554, et al.

4la

importers are evaluated, and that information con-

cerning their hazards is transmitted to affected em-

ployers and employees within the manufacturing sec-

tor. This transmittal of information is to be accom-

plished by means of comprehensive hazard communi-

cation programs, which are to include container label-

ing and other forms of warning, material safety data

sheets and employee training.

29 C.F.R. § 1910.1200 (a).

The Standard is applicable to all employers in Stand-

ard Industrial Classification (“SIC”) Codes 20-39, which

in general terms includes manufacturing operations. The

plaintiff enterprises in the consolidated cases are included

in SIC Codes 20-39. 29 C.F.R. § 1910.1200(b) (1).

Chemical manufacturers and importers are required

to evaluate chemicals produced in their workplaces or im-

ported by them to determine if they are hazardous. Cri-

teria and methods of evaluation are prescribed in the

Standard. Information concerning any physical or health

hazards determined to be present must be transmitted to

“downstream” manufacturers by product labels on con-

tainers leaving the workplace and by accompanying mate-

rial safety data sheets (“MSDS”). After evaluation of

workplace chemicals, employers are required to develop

and implement a written hazard communication program

for their workplaces “which at least describes how the

criteria specified . . . for labels and other forms of warn-

ing, material safety data sheets and employee information

and training will be met. . . .” 29 C.F.R. § 1910.1200(d)

and (e).

1. Hazard Determination/Material Safety Data Sheets:

The primary responsibility for hazard evaluation is placed

on chemical manufacturers and importers of hazardous

chemicals. 29 C.F.R. $ 1910.1200(d) (1). Each chemical

must be evaluated for its potential to cause adverse health

effects, as well as its potential to pose physical hazards

424

(e.g. flammability). The Standard provides general cri-

teria for the manufacturer or importer to follow in eval-

uating the scientific evidence on whether a chemical may

cause an adverse health effect and provides specific rules

for the evaluation of chemical mixtures. 29 C.F.R.

§ 1910.1200(d) (2), (5); see 48 Fed. Reg. 53,347 (Appen-

dix B to Standard). In addition, the Standard establishes,

by reference to several enumerated lists, a “floor list” of

approximately 2300 hazardous chemicals. 29 C.F.R. Part

1910, Subpart Z; 29 C.F.R. § 1910.1200(d) (3), (4).

The MSDS for each hazardous chemical is the primary

means, under the Standard, for transmitting comprehen-

sive hazard information. 48 Fed. Reg. 53,305. The MSDS

will include the physical and chemical characteristics of

the substance, its health and safety hazards, including

symptoms of exposure, recommended maximum exposure

limits, primary routes of exposure, generally applicable

safe handling and use precautions and control measures.

29 C.F.R. § 1910.1200(g). Employer-purchasers will re-

ceive copies of the MSDS’s produced by manufacturers

for all hazardous chemicals in their workplace and will be

required to ensure that they are readily accessible to all

employees. Jd. Workplace container labels designed to

communicate to employees by message, word, picture or

symbol, the dangers of the chemicals in the container, are

keyed to the readily-available MSDS.

2. Labeling: Chemical manufacturers, importers and

distributors must ensure that containers of hazardous

chemicals leaving the workplace are appropriately labeled,

and all manufacturing emplovers must similarly label in-

plant containers. 29 C.F.R. § 1910.1200(f) (1), (4). The

labels on containers leaving the workplace must include

at least the “identity” of the chemical, appropriate hazard

warnings and the name and address of the manufacturer,

importer or other responsible party. Jd.

The labeling requirement under the Standard expressly

takes into account the applicability of other existing stat-

43a

utes or substance-specific health standards regulating

hazardous materials. 29 C.F.R. $ 1910.1200(a) (4). The

Standard also directs that if labels already applied by a

manufacturer, distributor or improper comply with the

Standard’s requirements, additional labels need not be

applied. 29 C.F.R. § 1910.1200(f) (9).

The Standard recognizes the practical problems of label-

ing within a plant and allows a flexible approach. 48 Fed.

Reg. 53,336. For example, if there are a number of sta-

tionary work containers which have similar contents

(such as reactor vessels) within a work area, the em-

ployer may post signs or placards which convey the re-

quired hazardous information rather than individually

labeling each piece of equipment. Employers may also use

written material other than labels ( e.g. process sheets,

batch tickets, etc.) on Stationary process equipment, as

long as it is readily accessible to employees working in

the area. In addition, the Standard as promulgated does

not require labels on piping and Support systems, the most

costly items in any plan. 29 C.F.R. § 1910.1200(¢). This

resulted in an estimated cost savings of approximately

58% to 67% of the initia] compliance cost and 70% of

the annual cost associated with earlier proposals for the

Standard which required such labeling. 48 Fed. Reg.

53,325.

3. Employee Training: The Standard specifies the sub-

jects which must be covered by employee training pro-

grams. 29 C.F.R. § 1910.1200(h) (2).

4. Trade Secrets: The Standard permits a chemical

manufacturer, importer or employer to withhold the spe-

cific chemical identity from the MSDS if:

(i) The claim that the information withheld is

a trade secret can be supported;

(ii) Information contained in the material safety

data sheet concerning the properties and effects of

the hazardous chemical] is disclosed;

44a

(iii) The material safety data sheet indicates that

the specific chemical identity is being withheld as a

trade secret; and

(iv) The specific chemical identity is made avail-

able to health professionals, in accordance with the

applicable provisions of this paragraph.

29 C.F.R. § 1910.1200(1) (1).

If a treating physician or nurse determines that a

medical emergency exists and that the chemical identity

of a hazardous chemical is necessary for emergency or

first aid treatment, the entity claiming a trade secret

must immediately disclose the identity of the chemical.

In non-emergency situations more complex procedures are

required to obtain the identity of the chemical. These pro-

cedures are designed to provide greater protection to the

trade secret. 29 C.F.R. § 1910.1200(i) (2) and (38).

D. The Alleged Burdens Imposed by the Right to Know

Act: Plaintiffs in the Chamber of Commerce Action have

submitted a number of affidavits of corporate executives

and scientists describing the effect of having to comply

both with OSHA’s Hazard Communication Standard and

the Right to Know Act.

Labeling of pipelines, including valves, vents, inlets,

drains and sample connections would, according to plain-

tiffs, impose enormous burdens in manpower and money.

Some plants, for instance, have thousands of locations

which would require labeling. In view of the fact that

different materials may be sent through the pipes, it

might be necessary to change the labels continually.

It is claimed that the requirement that within two

years containers and pipelines be labeled with the chemi-

cal names and Chemical Abstract Service registry num-

bers (“CAS numbers”) of the five predominant sub-

stances contained in or passing through them (whether

hazardous or not) imposes a heavy financial burden and

45a

serves to confuse employees and others with an excess of

information.

Double sets of labels, reports and training programs

will be required to meet both the federal and state

requirements.

Out-of-state suppliers may be unwilling to provide the

information which New Jersey requires be placed on the

labels, particularly when trade secrets are involved. This

will result in loss of essential suppliers or an inability to—

comply with the Right to Know Act provisions.

The education program requirement imposes a far

greater burden on employers than the federal standard

because it must include extensive information about the

Right to Know Act and about all hazardous substances in

a plant whether or not in the individual employee’s work-

place.

The most serious consequences of the Right to Know

Act which plaintiffs foresee is the threatened loss of trade

secrets. Unlike the federal standard, under which em-

ployers can claim trade secret protection for all hazardous

substances, the Act mandates disclosure of the presence

of all special health hazard substances. There are 835

substances in this category, and as to them no employer

“may seek trade secret protection. In many instances,

plaintiffs assert, the identification of the presence of one

of these substances will necessarily result in the dis-

closure of valuable trade secrets which heretofore have

been protected from competitors and others. It is not nec-

essary to know the quantity of the substance involved.

According to plaintiffs the mere presence of the substance

often constitutes the trade secret. :

Defendants have sought to answer plaintiffs’ analysis

of the effects of the Right to Know Act, and at least to

some extent have done so in the affidavits submitted on

their behalf (see in particular Rosenman Affidavit, De-

fendants’ Appendix at A13, et seq.). They note that there

46a

are many exceptions to the labeling requirements, such

as containers labeled pursuant to various federal acts

(other than the OSH Act) and that alternate methods of

labeling are permitted in special situations. Defendants

demonstrate that many state requirements correspond

with or complement the federal requirements and that

employer compliance with one set of requirements can

be used to meet the other set.

Defendants seek to minimize the loss of trade secrets

risk which the Right to Know Act creates. There are af-

fidavits which state that using available technology it is

almost always possible to ascertain the component sub-

stances of a product, and therefore the listing of chemical

substances will not disclose anything which a competitor

or other interested person could not ascertain in any

event. Further, defendants note that of 50,000 chemicals

which are commonly used, only 835 are in the category

of special health hazard substances. All the rest are en-

titled to trademark protection under the Right to Know

Act. Finally, defendants argue that these 835 substances

are capable of causing extraordinary harm to workers

and others, and that if there is a conflict between the em-

ployer’s right to protect his trade secrets and a worker’s

need to know the identity of the substance to prevent or

_ treat injury or disease, the interest in maintaining trade

secrets must give way to the more important health

needs.

It is impossible on the present record to measure with

any precision the extent of the increased burden imposed

by the Right to Know Act, although given the additional

requirements of the Act the extra burden must of neces-

sity be considerabie. 1 suspect that not even an extended

evidential hearing would enable a court to determine the

extent of the risk of trade secrets which would result

from implementation of the Right to Know Act. Plaintiffs

discussed their trade secrets in only the most general

terms. Even when dealing with a claim of a single trade

47a

secret, the determination of the validity of the claim is

a difficult process at best. Discussion of a threat to all of

the asserted trade secrets of all industrial concerns in

New Jersey is necessarily imprecise and nebulous. Simi-

larly defendants’ assertions that there is little danger to

this undifferentiated mass of trade secrets cannot. be

totally convincing. The most that can be said is that there

is a likelihood that the disclosure requirements will in-

volve a substantial risk of the loss of some trade secrets

by some of New Jersey’s employers.

III. Conclusions of Law

A. Jurisdiction: Plaintiffs in the Fragrance Materials

Association Action assert federal jurisdiction under 28

U.S.C. $ 1331 (federal question) and 28 U.S.C. § 1337(a)

‘commerce regulation). Plaintiffs in the Chamber of

Commerce Action assert federal jurisdiction under 28

U.S.C. $1331, 42 U.S.C. § 1983 (deprivation of federal

rights under color of state law) and 28 U.S.C. § 220]

(Declaratory Judgment Act). The latter statute, of

course, is not an independent basis of jurisdiction and

simply provides for a remedy when a federal court al-

ready has jurisdiction.

Defendants urge that under the rule set forth in Neo

Jersey State AFL-C1O v. New Jersey, Docket No. 84-5196

(3d Cir. Nov. 8, 1984) and Exwon Corp. ». Hunt, 683

F.2d 69 (3d Cir. 1982), cert. denied, 103 S. Ct. 727

(1983), this court lacks jurisdiction notwithstanding the

fact that plaintiffs rely on a federal statute and regula-

tion as the bases of their claims. Plaintiffs’ principal

claim is that the Right to Know Act has been preempted

by the federal Hazard Communication Standard. In

Exxon plaintiffs sought a declaratory judgment that the

existence of the federal Superfund Act, 42 U.S.C. § 9631,

preempted New Jersey’s Spill Act, N.J.S.A. 58:10-23.11a,

and exempted them from paying the tax imposed by the

Spill Act. The Court of Appeals ruled that “a complaint

48a

seeking a declaration that federal law preempted state

regulations did not raise a federal question” and that

“a declaratory judgment complaint does not state a cause

of action arising under federal law when the federal is-

sue is in the nature of a defense to a state law claim,”

638 F.2d at 73.

In State AFL-CIO plaintiffs sought a declaratory judg-

ment that the Employment Retirement Income Security

Act of 1974 (ERISA) preempted four New Jersey stat-

utes regulating “closed panel” dental insurance plans. Af-

firming the district court’s dismissal of the action for lack

of subject matter jurisdiction, the Court of Appeals held

that the case did not arise under federal law since the

declaratory relief was sought “only to stave off action by

New Jersey against plan providers which might be taken

under the state statute.” Slip op. at p. 4.

I do not believe these cases are controlling here.

Rather, Shaw v. Delta Airlines, Inc., 77 L.Ed. 2d 490

(1983) governs the question of jurisdiction. The issue in

that case was the extent to which ERISA preempted New

York’s Human Rights Law and Disability Benefits Law.

In a footnote the Supreme Court stated:

Here, . . . companies subject to ERISA regulation

seek injunctions against enforcement of state laws

they claim are pre-empted by ERISA, as well as

declarations that those laws are pre-empted. Jt is

beyond dispute that federal courts have jurisdiction

over suits to enjoin state officials from interfering

with federal rights. See Ex Parte Young, 209 US.

123, 160-162, 52 L. Ed. 714, 28 S. Ct. 441 (1908).

A plaintiff who seeks injunctive relief from state

regulation, on the ground that such regulation is

pre-empted by a federal statute which, by virtue of

the Supremacy Clause of the Construction, must pre-

vail, thus presents a federal question which the fed-

eral courts have jurisdiction under 28 U.S.C. § 1331

49a

[28 U.S.C.S. § 1831] to resolve.... (Emphasis

added. )

Id. at 500, n. 14.

Plaintiffs here seek injunctive as well as declaratory

relief, thus distinguishing the case from Exxon and State

AFL-CIO. This may avpear to be a distinction without

a difference, but at least in this Circuit the Supreme

Court’s ruling in Shaw gives significance to the distinc-

tion.

Further, plaintiffs’ trade secret claims allege a depriva-

tion of property without due process of law, a different

claim altogether from those advanced in Exxon and State

AFL-CIO. Thus I conclude that the instant cases arise

under federal law and that jurisdiction lies in this court.

B. Preemption: The principal contention of plaintiffs

in both actions is that OSHA’s Hazard Communication

Standard preempts the Right to Know Act. It must be

noted in this regard that when OSHA issued the Standard

it limited the Standard’s coverage to employers in the

manufacturing sector, SIC codes 20 through 39. 29 C.F.R.

§$ 1910.1200(b) (1). It reserved “the right to separately

regulate other segments in the future.” 48 Fed. Reg.

53,284-87, 53,334. The Right to Know Act covers both

the manufacturing and other sectors. In this section of

this opinion I am proceeding on the assumption that pre-

emption, if applicable, would apply only to state regula-

tions affecting manufacturing businesses covered by the

federal Standard, i.e., employers within SIC codes 20

through 39.

It is hornbook law that under the Supremacy Clause

of the Constitution, Art. 6, Ch. 2, when a state statute

conflicts with a federal statute which has preempted the

subject matter of the legislation, the state statute must

give way. Maryland v. Louisiana, 451 U.S. 725, 746-47

(1981). Preemption may be either express or implied

50a

and “is compelled whether Congress’ command is explicitly

stated in the statute’s language or implicitly contained in

its structure and purpose.” Jones v. Rath Packing Co.,

430 U.S. 519, 525 (1977).

In the present case Congress addressed the preemption

question in the statute itself, and therefore the question

is one of statutory interpretation, not implied preemp-

tion. Section 18 of the OSH Act provides:

(a) Nothing in this chapter shall prevent any

State agency or court from asserting jurisdiction

under State law over any occupational safety or

health issue with respect to which no standard is

in effect under section 655 of this title.

(b) Any State which, at any time, desires to as-

sume responsibility for development and_ enforce-

ment therein of 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 655 of this title shall submit a

State plan for the development of such standards

and their enforcement.

29 U.S.C. § 667(a), (b).

The OSH Act sets forth criteria to be applied when

a state plan is submitted to the Secretary of Labor for

approval. Among the criteria is the requirement that

when state standards are applicable to products distrib-

uted or used in interstate commerce they be “required

by compelling local conditions and do not unduly burden

interstate commerce.” 29 U.S.C. §$667(¢)1(2). New

Jersey has not sought federal approval of its Right to

Know Act.

The language of £18 of the OSH Act provides “both

a broad grant of power to the states and a limitation

on the exercise of that power.” Florida Citrus Packers

uv. State of California, 549 F. Supp. 213, 216 (N.D.

Cal. 1982). Section 18/a) has been consistently inter-

5la

preted by OSHA and the courts to bar the exercise of

state jurisdiction over issues addressed by an OSHA

standard, even where the state law may arguably be more

stringent or where OSHA has not explicitly addressed

a provision. See, e.g., Five Migrant Farm Workers v.

Hoffman, 136 N.J. Super. 242, 246 (Law Div. 1975) ;

Stanislawski v. Industrial Comm., 99 Ill. 2d 36, 457 N.E.

2d 399 (198°); Columbus Coated Fabrics v. The In-

dustrial Comm. of Ohio, 1973-74 O.S.H. Rep. (BNA)

{16,832 (S.D. Ohio 1973), appeal dismissed, 498 F.2d

408 (6th Cir. 1974).

The Hazard Communication Standard itself expressly

provides that it “is intended to address comprehensively

the issue of evaluating and communicating hazards to

employees in the manufacturing sector, and to preempt

any state law pertaining to this subject.” 29 C.F.R.

§ 1910.1200(a) (2). Comparing the Right to Know Act

and the Standard, it is apparent that the Right to Know

Act deals, to a very great extent, with hazard communi-

cation in the workplace, the identification of hazardous

substances, labeling, and workplace training and educa-

tional programs, the precise issues covered by the Stand-

ard. Unless one of the reasons defendants advance for

not applying preemption controls, it would appear that

the Right to Know Act is subject to the express pre-

emptive effect of the federal statute and administrative

Standard. See Fidelity Fed. Sav. & Loan Ass’n v. de la

Cuesta, 458 U.S. 141, 152-54 (1982;.

Defendants and intervenors first argue that preemption

is unwarranted because federal jurisdiction under the

OSH Act is limited to occupational safety and health,

whereas the Right to Know Act is directed to the health

and safety of the general public. As described above the

New Jersey statute and regulations are designed to

protect not only workers but also inhabitants of the

state who live near industrial or other facilities and to

enable fire and health officials to protect the community

52a

from health risks and other hazards. However, to accom-

plish these objectives the Right to Know Act deals with

precisely the same subjects in the workplace as are reg-

ulated by the OSHA Standards. The Act clearly. asserts

jurisdiction over occupational safety and health issues

as to which a federal standard is in effect. Consequently

$18(b) of the OSH Act mandates submission of the

Act and the regulations implementing it to the Secre-

tary of Labor for approval. This approval has not been

obtained or even sought.

The fact that the Right to Know Act has purposes in

addition to occupational health and safety does not in-

sulate it from the preemption provisions of the OSH

Act. In Perez v. Campbell, 402 U.S. 637, 651-52 (1971),

the Supreme Court rejected as “aberrational’’ the doctrine

that:

[S]tate law may frustrate the operation of federal

law as long as the state legislature in passing its

law had some purpose in mind other than one of

frustration. Apart from the fact that it is at odds

with the approach taken in nearly all our Supremacy

Clause cases, such a doctrine would enable state

legislators to nullify nearly all unwanted federal

legislation by simply publishing a legislative com-

mittee report articulating some state interest or

policy—other than frustration of the federal objec-

tive—that would be tangentially furthered by the

proposed state law.

It may well be, as defendants and intervenors assert,

that the Right to Know Act is not inconsistent with the

federal Standard and in fact is the kind of legislation

which furthers the OSH Act objectives and is therefore

permitted under that Act. Congress, however, has re-

quired that a determination in this regard must be made

in the first instance by the Secretary of Labor and that

until such a determination is made an OSHA standard

preempts the area of regulation.

53a

Defendants and intervenors have relied heavily on

Pacific Gas & Elec. v. State Energy Res. Conservation

& Dev’t Comm’n, 75 L.Ed.2d 752 (1983). In that case

the Atomic Energy Act expressly permitted states to

regulate for “purposes other than protection against

radiation hazards.” Id. at 752, quoting 42 U.S.C. § 2021

(k). No prior approval of a federal agency was re-

quired, as in the case of state regulation of an area

covered by an OSHA Standard. Thus, inquiry into

the purposes of the State enactment was made relevant

by the express terms of the federal statute. The Su-

preme Court reasoned that:

At the outset, we emphasize that the statute does

not seek to regulate the construction or operation

of a nuclear powerplant. It would clearly be im-

permissible for California to attempt to do so, for

such regulation, even if enacted out of non-safety

concerns, would nevertheless directly conflict with

the NRC’s exclusive authority over plant construc-

tion and operation. ... the federal government has

occupied the entire field of nuclear safety concerns,

except the limited powers expressly ceded to the

states. When the federal government completely

occupies a given field or an identifiable portion of

it, as it has done here, the test of preemption is

whether “the matter on which the state asserts the

right to act is in any way regulated by the federal

government.”

Id. at 770. The New Jersey Right to Know Act seeks,

among other things, to regulate employer activity in the

workplace in regard to the dissemination of information

on hazardous substances. This is an issue expressly

preempted by the federal Standard.

Defendants argue that the preemption provisions of

the OSH Act are inapplicable because the Hazards Com-

munication Standard is not a “standard”, rather it is a

regulation. Both §18(a) and §18(b) use the term

54a

“standard”. Subsection (a) permits a state to act on an

issue “to which no standard is in effect.”’ Subsection

(b) requires a state to obtain federal approval of any

of its regulatory requirements relating to an occupational

safety or health issue “with respect to which a Federal

standard has been promulgated.” :

The OSH Act provides for the adoption of standards

promulgated pursuant to 29 U.S.C. § 655(b) and it

provides for the promulgation of regulations pursuant

to 29 U.S.C. § 657(g) (2). Defendants urge that the

Hazard Communication Standard does not fall within

the statutory definition of “standard”, namely, a rule

“which most adequately assures, to the extent feasible, on

the basis of the best available evidence, that no ernployee

will suffer material impairment of health or functional

capacity even if such employee has regular exposure

to the hazard dealt with by such standard for the period

of his working life... .” 29 U.S.C. § 655(b) (5). Re-

lying on Louisiana Chemical Ass’n v. Bingham, 657 F.2d

777 (5th Cir. 1981), defendants contend that the Hazard

Communication Standard, not being ‘hazard specific’,

is a regulation—any rule the Secretary of Labor “may

deem necessary to carry out [his] responsibilities under

[the Act]....” 29 U.S.C. § 657(g) (2).

I do not believe that defendants’ position is well taken.

In § 3/8) of the OSH Act, an occupational health and

safety standard is defined as a standard “which requires

conditions or the adoption or use of one or more practices,

means, methods, operations or processes, reasonably nec-

essary or appropriate to provide safe or healthful em-

ployment and places of employment.” 29 U.S.C. § 652(8).

Section 6(b) (5) of the OSH Act, 29 U.S.C. § 655(b) (5)

provides for the development of occupational health and

safety standards addressing toxic materials and harmful

physical agents. Finally, $6'b)(7) of the statute re-

quires that a standard promulgated thereunder “prescribe

the use of labels or other appropriate forms of warn-

55a

ing... as are necessary to ensure that employees are

apprised of all hazards to which they are exposed, rele-

vant symptoms and appropriate emergency treatment,

and proper conditions and precautions of safe use or

exposure.” Taken together, these statutory provisions

support the status of the Hazard Communication Stand-

ard as a § 6(b) standard.

In addition, the legislative history of the OSH Act

clearly supports the validity of the Hazard Communica-

tion Standard as a $ 6(b) standard. At the time of the

passage of the OSH Act, Congress, in discussing what

would constitute a § 6(b) standard, stated:

Standards promulgated under this procedure would

include requirements regarding the use of labels or

other forms of warning to alert employees to the

hazards covered by the standard and to provide them

with necessary information regarding proper meth-

ods of use or exposure and appropriate emergency

treatment, where appropriate, such standards would

also prescribe protective equipment and other con-

trol measures, as well as, in the case of toxic sub-

stances or harmful physical agents, requirements

for monitoring conditions or measuring employee

exposure as may be necessary to protect employee’s

health.

1970 U.S. Code Cong. & Admin. News at 5183.

Furthermore, the position of the Agency is clearly set

forth in its comments to the Standard, 48 F.R. 53320,

and should be accorded the significant weight which

courts give to interpretations of an implementing agency.

Blum v. Bacon, 457 U.S. 132, 141 (1982): Chevron

U.S.A., Inc. v. Natural Resources Defense Counsel, Inc.,

81 L.Ed.2d 694 (1984). OSHA’s comments distinguish

the Standard from a § 8(g) on the basis that (1) the

Hazard Communication Standard requires evaluation of

chemical hazards, development of material safety data

56a

sheets, and the establishment of educational programs,

thereby requiring affirmative action on the part of manu-

facturers, importers, distributors and employers as to

practices, means and methods; (2) the core of the re-

quirements contained in the Standard pertain only to

hazardous chemicals: and (3) the labeling and warning

requirements of the Standard fit clearly within the lan-

guage of §$6(b)(7). These characteristics provide a

marked contrast to the record keeping provisions that

were held to be a § &8(g) regulation, and not a standard,

in Louisiana Chem. Ass’n v. Bingham, 657 F.2d 777

(5th Cir. 1981). In Bingham, the Court held that the

record access rule which was (1) aimed primarily at

the detection of health risk patterns, not at the correction

of that risk, (2) which involved a voluntary record crea-

tion program, and (3) incorporated thousands of sub-

stances into the rule that probably did not present any

risk of injury, was not a $6 Standard. 7d. at 781.

Thus I conclude that the Hazard Communication Stand-

ard is a “standard” and that, therefore, the preemptions

of 29 U.S.C. § 667 are applicable.

Defendants further urge that the preemption provisions

of the OSH Act are not applicable at the present time

because certain of the provisions of the Standard do

not become effective until a later date in order to give

employers an opportunity to put themselves in com-

pliance. Section 18ta) of the OSH Act permits states

to act concerning issues as to which no standard is “in

effect”. The language of the Act and common sense re-

quire the conclusion that a standard is “in effect”? when

it is issued (November 25, 1983, in this case) even

though for practical reasons employers are given addi-

tional time to prepare to meet the requirements of the

standard. Given this interpretation Section 18a) com-

plements Section 18(b) which requires federal approval

of state action if the state seeks to regulate any issue

as to which a federal standard “has been promulgated”.

57a

The Hazard Communication Standard is in effect for

preemption purposes.

C. The Extent of Preemption: The new Standard

covers only employers in the manufacturing sector, SIC

codes 20 through 39. The employer plaintiffs in both the

Chamber of Commerce Action and the Fragrance Mate-

rials Association Action are in the manufacturing sector

covered by those codes. The Chamber of Commerce and per-

haps some of the other trade association plaintiffs include

in their membership employers who are not covered by

those codes. Plaintiffs in the Chamber of Commerce Ac-

tion urge that the preemption doctrine precludes applica-

tion of the Right to Know Act to these groups as well as

to employers in the manufacturing sector,

Plaintiffs advance two arguments in support of their

position. First, they urge that non-inclusion of other em-

ployers in the Standard represents a deliberate decision by

OSHA that these other employers should not be subject to

hazard communication requirements, and that imposition

of the Right to Know Act requirements would defeat this

decision. Second, and somewhat inconsistently, plaintiffs

argue that issuance of a federal] standard regulating these

other sectors is imminent, and that in such a situation

State regulations should not intrude. Neither argument

is at all persuasive.

Once again, the question is governed by the express

preemption provision of the OSH Act. Section 18(a) af-

firmatively confers jurisdiction on the states to deal with

any occupational safety or health issue as to which no

OSHA standard is in effect. No OSHA hazard communi-

cation standard is in effect for non-manufacturing em-

ployers. Consequently New Jersey is free to act as to

those employers.

The fact that OSHA may intend to adopt a standard

covering non-manufacturing employers is of no moment.

Federal approval of state occupational safety and health

58a

standards under Section 18'b) of the OSH Act is re-

quired only when a federal standard on the subject “has

been promulgated”. No federal standard has been pro-

mulgated covering employers in the non-manufacturing

sectors. Consequently federal approval of state regulation

of employers in those sectors is not required.

The defendants urge that preemption does not apply to

those provisions of the Right to Know Act which are nec-

essary to carry out the non-workplace purposes of the

Act, namely, the provisions designed to assist emergency

response services, to enforce compliance with environmen-

tal laws and regulations, to provide the public with infor-

mation concerning toxic substances used in their com-

munities and emitted into the environment, and to assist

health professionals and others in diagnosing, treating

and preventing adverse health effects from exposure to

toxic substances.

Defendants would exempt from preemption the statu-

tory and regulatory requirements for hazardous substance

lists, the surveys, the fact sheets and the labeling provi-

sions.’ There seems little question but that New Jersey

$’The specific provisions of the right to Know Act which de-

fendants urge not be considered preempted even with respect to

employers in the manufacturing sector are:

1. The requirement that the Department of Health and the

DEP develop and publicly distribute lists of hazardous substances

used, manufactured, stored, or emitted from workplaces in the

State. These lists are (a) the environmental hazardous substances

list, N.J.S.A. 34:5A-4a; (b) the workplace hazardous substances

list, N.J.S.A. 34:5A-5a; and (c) the special health hazard sub-

stances list, N.J.S.A. 34:5A-5b.

2. The provision that disclosure of information concerning

emissions into the environment, in particular the chemical name

and CAS number, may not be withheld from the public by means

of a trade secret claim. N.J.S.A. 34:5A-15h.

3. The provision that information concerning special health

hazard substances, in particular the chemical name and CAS num-

ber, may not be withheld from the public by means of a trade

59a

could enact legislation and regulate employers in order to

achieve the non-workplace objectives to which defendants

refer. Unfortunately, in the present case the non-work-

place regulatory plan is superimposed upon a regulatory

foundation which was designed to and does cover precisely

the same occupational health and Safety issues as are the

Subject of the OSHA Hazard Communication Standard.

The workplace and non-workplace regulatory schemes are

inextricably intertwined. The fact that this regulatory

base also serves other ends does not save it from preemp-

tion. To hold otherwise Would permit ready nullification

of the Section 18 preemption provision.

It would be otherwise if a State were to adopt a statute

and regulations directed as a bona fide effort solely to

achieve the kind of non-workplace objectives to which de-

fendants refer. In such a Situation the OSH Act’s pre-

emption provisions would not be applicable. If in fact the

non-workplace regulatory scheme impinged on an OSHA

standard, the often difficult question of implied preemp-

tion would have to be addressed. But that is not the

present case.

Thus the Hazard Communication Standard preempts

the Right to Know Act only as the Act covers employers

secret claim. N.J.S.A. 34:5A-3s; 534 :5A-3t; 34:5A-5b; NJAC.

8 :59-10.

4. The requirement that employers complete the environmental

survey, N.J.S.A. 34:5A-T7b: 54:5A-3k; the emergency service in-

formation Survey, N.J.A.C. 7:1G-5; and the workplace survey,

N.J.S.A. 34:5A-7a: 34 :0A-3y, thereby listing those hazardous sub-

stances on the Department of Health and DEP lists that are present

in their facilities or known to be emitted into the environment.

5. The requirement that the Department of Heaith prepare,

and publicly distribute, hazardous substance fact sheets describing

the health effects of exposure to hazardous substances located in

employers’ facilities or known to be emitted into the environment.

N.J.S.A. 34 ?5A-3n; 34:5A-10a.

6. The provision requiring employers to label containers with

the chemical name and CAS numbers of the contents of the con-

tainers. N.J.S.A. 34 -0A-14a; 34:5A-14b.

60a

in SIC codes 20 through 39. However, as to those em-

ployers the Right to Know Act is preempted in its

entirety.

D. Trade Secrets: Plaintiffs contend that the require-

ment of the Right to Know Act that employers disclose

special health hazard substances without trade secret pro-

tection will deprive them of property without due process

of law. This issue is academic for employers in the man-

ufacturing sector because the trade secret provisions of

the Right to Know Act along with its other provisions

have been preempted by the federal standard. The issue

is not academic, however, for other categories of em-

ployers who remain subject to the Right to Know Act.

It will be recalled that the Act contains a procedure by

which employers may claim that the presence of desig-

nated substances constitutes a trade secret and that if

the trade secret claim can be substantiated the substance

will not be reveaied in the labels and lists to which the

public has access. It will also be recalled that, unlike the

federal standard, the Right to Know Act provides for a

category of particularly dangerous chemicals designated

special health hazard substances, as to which employers

are not allowed to obtain trade secret protection. Dis-

closure of these substances, plaintiffs assert, will result

in the loss of trade secrets which may have been the

product of substantial and costly research endeavors.

The forced disclosure of these trade secrets, it is said,

will impair or destroy the employer’s investment and

endanger his ability to compete.

1. Ruckelshaus v. Monsanto Co.: Many of the ques-

tions involved in this aspect of the case were considered

in the Supreme Court’s decision in Ruckelshaus v. Mon-

santo Co., 81 L.Ed.2d 815 (1984). That case dealt with

the disclosure of trade secrets of pesticide manufacturers

who were required to register with federal agencies un-

der the Federal Insecticide, Fungicide, and Rodenticide

6la

Act (“FIFRA”), 7 U.S.C. §$ 136, et seq. Three periods

of time were pertinent to the Court’s decision: (i) Prior

to amendments enacted in 1972, FIFRA was silent with

respect to the Environmental Protection Agency’s

(“EPA”) use and disclosure of data submitted to it in

connection with an application for registration. (ii) By

virtue of the 1972 amendments to FIFRA, during the

period from October 22, 1972 through September 30,

1978 a pesticide manufacturer submitting data was

given an opportunity to protect its trade secrets from

disclosure by designating them as trade secrets at the

time of submission. Under FIFRA EPA was free to use

non-trade secret data when considering the application of

another registrant, provided EPA required the subse-

quent application to pay reasonable compensation to the

original submitter. The statute, however, prohibited

EPA from disclosing publicly, or considering in connec-

tion with the application of another, any data submitted

by an applicant if both the applicant and EPA deter-

mined the data to constitute trade secrets. (iii) FIFRA

was further amended effective October 1, 1978. Under

that amendment pesticide registrants were granted a 10-

year period of exclusive use for data on new active in-

gredients contained in pesticides registered after Sep-

tember 30, 1978. § 3/e)(1)(D) (i). All other data sub-

mitted after December 31, 1969 could be cited and con-

sidered in support of another application for 15 years

after the original submission if the applicant offers to

compensate the original submitted. § 3/e) (1) (D) (ii).

Absent agreement of the parties on compensation, com-

pensation is set by binding arbitration, which is not re-

viewable absent fraud or misrepresentation. Data not

qualifying for either the 10-year period of exclusive use

or the 15-year period of compensation may be considered

by EPA without limitation. § 3(¢) (1) (D) (ili). Finally

the 1978 amendment provides for disclosure of all health,

safety and environmental data to qualified requesters

notwithstanding the prohibition against disclosure of

62a

trade secrets. Disclosure of information that would re-

veal “manufacturing or quality control processes” or cer-

tain details about deliberately added inert ingredients is

not authorized unless “the Administrator has first deter-

mined that the disclosure is necessary to protect against

an unreasonable risk of injury to health or the environ-

ment.” §§ 10(d) (1) (A) to (C).

Monsanto Company was one of a small group of com-

panies that invent and develop new active ingredients

for pesticides and conduct most of the research and test-

ing with respect to those ingredients. The development

process may take 14 to 22 years, and it is usually that

long before a company can expect any return on its in-

vestment. Monsanto instituted suit in the United States

District Court against EPA’s Administrator seeking

injunctive and declaratory relief against the data-

consideration and data-disclosure provisions of FIFRA,

alleging, among other things, an unconstitutional taking

of property without just compensation.

The District Court declared, among other things, that

the statutory provisions of a 10-y@ar period of exclusive

use, the 15-year period of compensation and the use for

health, safety and environmental purposes were uncon-

stitutional. In reaching this result the District Court

made the following determinations:

1. Monsanto possessed property right in the data it

submited.

2. The data consideration provisions contained in

§ 3(¢e) (1) (D) appropriated for the benefit of Monsanto’s

competitors Monsanto’s property rights.

3. Monsanto’s property was being appropriated for a

private purpose and this interference was much more

significant than the public good that the appropriation

might serve.

4. The question of the FIFRA disclosure provisions

constituted a taking of Monsanto’s property, and the cost

63a

to Monsanto significantly outweighed any benefit to the

general public from having the ability to scrutinize the

data. The District Court appeared to believe that the

public could derive the assurances it needed about the

safety and effectiveness of a pesticide from EPA’s deci-

sion to register the product and to approve the label.

5. The compulsory binding arbitration scheme con-

tained in § 3(c)(1)(D) (ii) did not adequately provide

compensation for the property taken.

6. A remedy was not available under the Tucker Act

of the deprivations of property effected by $$ 3 and 10

of FIFRA.

On direct appeal the Supreme Court reversed and re-

manded for further proceedings. Both the holdings and

the Court’s step by step analysis bear critically on the

present case.

The Court first addressed the question whether data

of the kind which Monsanto submitted to EPA was a

property interest protected by the Fifth Amendment’s

Taking Clause. It noted that property interests are not

created by the Constitution but must stem from an inde-

pendent source such as state law. After reviewing Mis-

sourl law (Monsanto being headquartered in that

state), the Restatement of Torts, federal cases and other

legal sources, the Court concluded:

. that to the extent that Monsanto has an

interest in its health, safety, and environmental data

cognizable as a trade-secret property right under

Missouri law, that property right is protected by the

Taking Clause of the Fifth Amendment.

81 L.Ed.2d at 833.

The Court then addressed the question whether a

taking occurs when EPA discloses the data or considers

it when evaluating another application for registration.

Noting that the Court has been unable to develop any

—EEEEEEEE——==

64a

set formula for determining when justice and fairness

require that economic injuries caused by public action

are to be deemed a compensable taking, and further

noting that inquiry into whether a taking has occurred

is an ad hoc factual inquiry, the Court stated:

The Court, however, has identified several factors

that should be taken into account when determining

whether a governmental action has gone beyond

“regulation” and effects a “taking.” Among those

factors are: “the character of the governmental ac-

tion, its economic impact, and its interference with

reasonable investment-backed expectations.” [Cita-

tions omitted. ]

81 L.Ed.2d at 834.

The Court found that the force of the third factor—

interference with reasonable investment-backed expecta-

tions—“‘is so overwhelming, at least with respect to

certain of the data submitted by Monsanto to EPA, that

it disposes of the taking question regarding that data.

The Court examined the expectation factor as it related

to each of the three periods described above and reached

a separate conclusion for each period.

With respect to the post September 30, 1978 period,

the Court ruled that by reason of the provisions of the

statute itself Monsanto had no reasonable expectation of

non-disclosure:

We find that with respect to any health, safety,

and environmental data that Monsanto submitted to

EPA after the effective date of the 1978 FIFRA

amendments—that is, on or after October 1, 1978—

Monsanto could not have had a reasonable, invest-

ment-backed expectation that EPA would keep the

data confidential beyond the limits prescribed in the

amended statute itself. Monsanto was on notice of

the marner in which EPA was authorized to use and

65a

disclose any data turned over to it by an applicant

for registration.

81 L.Ed.2d at 834.

If, despite the data-consideration and data-

disclosure provisions in the statute, Monsanto chose

to submit the requisite data in order to receive a

registration, it can hardly argue that its reasonable

investment-backed expectations are disturbed when

EPA acts to use or disclose the data in a manner

that was authorized by law at the time of the sub-

mission.

81 L.Ed.2d at 835.

Answering Monsanto’s contention that the requirement

that a registrant give up its property interest in the

data constitutes an unconstitutional condition on the right

to a valuable governmental benefit, the Court noted that

the federal government clearly has the power to regulate

the marketing and use of pesticides and

Thus, as long as Monsanto is aware of the con-

ditions under which the data are submitted, and the

conditions are rationally related to a legitimate gov-

ernment interest, a voluntary submission of data by

an applicant in exchange for the economic advan-

tages of a registration can hardly be called a taking.

81 L.Ed.2d at 835.

Prior to the 1972 amendment, FIFRA was silent with

respect to EPA’s authorized use and disclosure of data

submitted to it in connection with an application for

registration. There was in existence another statute, the

Trade Secrets Act, 18 U.S.C. $1905, which imposed a

criminal penalty for any federal employee who disclosed,

in a manner not authorized by law, any trade secret

information revealed to him during the course of his

official duties. Notwithstanding the existence of the

Trade Secrets Act, the Court held that:

66a

Thus, with respect to any data that Monsanto

submitted to EPA prior to the effective date of the

1972 amendments to FIFRA, we hold that Monsanto

could not have had a “reasonable investment-backed

expectation” that EPA would maintain that data in

strictest confidence and would use it exclusively for

the purpose of considering the Monsanto application

in connection with which the data were submitted.

81 L.Ed.2d at 837.

The Court came to a different conclusion with respect

to data submitted during the pericd from October 22,

1972 through September 30, 1978. It will be recalled

that during that period the statute gave a registrant

the opportunity to protect its trade secrets from dis-

closure by designating them as trade secrets at the time

of submission. By the very terms of the statute EPA

was prohibited from disclosing publicly, or considering

in connection with the application of another, any data

which EPA and the applicant determined to constitute

trade secrets. The Court held that “[t]his explicit gov-

ernmental guarantee formed the basis of a reasonable

investment-backed expectation. If EPA, consistent with

the authority granted to it by the 1978 FIFRA amend-

ments, were now to disclose trade-secret data or consider

that data in evaluating the application of a subsequent

applicant in a manner not authorized by the version of

FIFRA in effect between 1972 and 1978, EPA’s actions

would frustrate Monsanto’s reasonable investment-backed

expectation with respect to its control over the use and

dissemination of the data it had submitted.” 81 L.Ed.2d

at 838.

Thus compensation was mandated for disclosure of

any trade secrets submitted during the 1972-78 period

when the statutory guarantee of secrecy was in effect.

The Court observed that if negotiation or arbitration

pursuant to §3(c)(1)(D) (ii) were to yield just com-

67a

pensation, then Monsanto would have no claim against

the government for a taking. Since no arbitration had

yet been undertaken, “any findings that there has been

an actual taking would be premature.” 81 L.Ed.2d at

839.

The Court summarized its “taking” rulings as follows:

In summary, we hold that EPA’s consideration or

disclosure of data submitted by Monsanto to the

agency prior to October 22, 1972, or after Septem-

ber 30, 1978, does not effect a taking. We further

hold that EPA consideration or disclosure of health,

safety, and environmental data will constitute a

taking if Monsanto submitted the data to EPA be-

tween October 22, 1972, and September 30, 1978;

the data constituted trade secrets under Missouri

law; Monsanto had designated the data as trade

secrets at the time of its submission; the use or

disclosure conflicts with an explicit assurance of

confidentiality or exclusive use contained in the stat-

ute during that period; and the operation of the

arbitration provision does not adequately compen-

sate for the loss in market value of the data that

Monsanto suffers because of EPA’s use or disclosure

of the trade secrets.

81 L.Ed.2d at 839.

The Court concluded that any taking of private prop-

erty that occurred by operation of FIFRA’s data-

disclosure and data-consideration provisions between Oc-

tober 22, 1972 and September 30, 1978, was a taking for

public, not private, use, even though subsequent appli-

cants may benefit from the disclosure of prior applicants.

Next, the Court cited the rule that equitable relief is

not available to enjoin an alleged taking of private

property for a public use when a suit for compensation

can be brought against the sovereign subsequent to the

68a

taking. It rejected the District Court’s determination

that the Tucker Act remedy is unavailable for whatever

taking may occur due to EPA activity pursuant to

FIFRA. It held that where the operation of the data-

consideration and data-disclosure provisions of FIFRA

effect a taking of property belonging to Monsanto, an

adequate remedy for the taking exists under the Tucker

Act, and therefore the District Court erred in enjoining

the taking. It further held that until Monsanto nego-

tiates with a beneficiary of its data filings and until the

controversy goes through arbitration Monsanto’s claims

with respect to the constitutionality of the arbitration

scheme would not be ripe for adjudication.

In conclusion the Court stated:

We find no constitutional infirmity in the chal-

lenged provisions of FIFRA. Operation of the pro-

visions may effect a taking with respect to certain

health, safety, and environmental data constituting

trade secrets under state law and designated by

Monsanto as trade secrets upon submission to EPA

between October 22, 1972, and September 20, 1978.

But whatever taking may occur is one for a public

use, and a Tucker Act remedy is available to pro-

vide Monsanto with just compensation. Once a taking

has occurred, the proper forum for Monsanto’s claim

is the Claims Court. Monsanto’s challenges to the

constitutionality of the arbitration procedure are

net yet ripe for review.

81 L.Ed.2d at 843-44.

2. Trade Secrets as Property: In Monsanto the Court

weighed FIFRA’s data submission provisions against

the requirements of the Fifth Amendment. In the pres-

ent case, since state action is involved, Fourteenth

Amendment due process requirements are implicated.

However, the same criteria will control the outcome. Fol-

lowing the Supreme Court’s rule in Monsanto, it must —

69a

first be determined whether trade secrets which non-

manufacturing employers submit pursuant to the Right

to Know Act are property rights which are protected

from governmental taking without just compensation.

It is well established in New Jersey law, as in the law

of most jurisdictions, that trade secrets are property

rights. E.g., Sun Dial Corp. v. Rideout, 16 N.J. 252

(1954), citing, Restatement of Torts, § 757, comment 6;

cf. N.J.S.A. 34:5A-3(g) (defining “trade secrets’). Al-

though no case has been brought to my attention de-

termining whether an uncompensated taking of a trade

secret would violate the State Constitution, I see no rea-

son why the New Jersey Supreme Court would not take

the same approach as the United States Supreme Court

in this regard.

The intervenors argue that since state law defines the

property interest in question, when the Right to Know

Act was enacted requiring disclosure of certain trade

secrets, it simultaneously redefined the property interest

in those trade secrets to exclude the right of secrecy.

By so defining the property right, compelled disclosure

could not result in a taking of property.

This circular reasoning is unpersuasive. In Monsanto

the Supreme Court refuted EPA’s similarly strained ar-

gument that FIFRA had preempted state laws by declar-

ing that trade secrets were not property rights:

This argument proves too much. If Congress can

“pre-empt” state property law in the manner advo-

eated by EPA, then the Taking Clause has lost all

vitality. This Court has stated that a sovereign, “by

ipse dixit, may not transform private property into

public property without compensation. ... This is

the very kind of thing that the Taking Clause of the

Fifth Amendment was meant to prevent.” Webb’s

70a

Fabulous Pharmacies, Ine. v. Beckwith, 449 US, at

164, 66 L Ed 2d 358, 101 S Ct 446.

81 L.Ed.2d at 838-839.

Trade secrets are property rights under New Jersey

law. The Right to Know Act does not change these

rights. These are rights which are protected from a

taking without just compensation.

3. Right to Know Act Disclosure as a Taking: Still

following the Supreme Court’s lead in Monsanto, it must

be determined whether the mandated disclosures of trade

secrets under the Right to Know Act are “takings”

which will trigger a right to compensation. I conclude

that they are not.

The factors to be considered in determining whether

particular governmental regulation effects a taking in-

clude the character of the governmental action, its eco-

nomie impact and its interference with reasonable in-

vestment-backed expectations. Here the state is acting in

an area of great public concern—worker health, environ-

mental effects of hazardous substances in the workplace,

community health and safety as it is effected by work-

place chemical substances.

No evidence whatsoever has been submitted to show

what effect, if any, the Right to Know Act trade secret

provisions will have on employers in non-manufacturing

sectors. The affidavits in this regard were submitted by

employers in the manufacturing sector, and they were

couched in vague and conclusory terms. Similarly the

affidavits submitted by defendants and intervenors on

the trade secret issue were highly generalized, utterly

lacking in specificity.

As in Monsanto, reasonable investment-backed expecta-

tions of employers would seem to be determinative. On

this question plaintiffs focus on and would have this

T1la

court rely on the Supreme Court’s ruling in Monsanto

with respect to data submitted during the period from

October 22, 1972 through September 30, 1978. However,

as described above, the situation during that period was

totally dissimilar from the situation in the present case.

There during the 1972-1978 period the statute itself gave

a registrant the opportunity to protect its trade secrets

from disclosure. Registrants submitted trade secret data

relying on that statutory guarantee. The 1978 amend-

ment of FIFRA stripped away the protection of the

guarantee. That is what the Supreme Court character-

ized as a taking.

Nothing like that has happened in New Jersey. There

has been no antecedent period of disclosure during which

the state committed itself to protecting trade secrets.

The state has simply adopted a statute and regulations

in economic and social areas in which it unquestionably

has the power to act. As part of the regulatory scheme

disclosure is required which may result in a loss of trade

secrets.

This is just the situation which prevailed in the pre-

1972 period which was addressed in Monsanto. Prior

to the 1972 amendment FIFRA was silent with respect

to EPA’s authorized use and disclosure of registrants’

data submitted to it. As in the case of New Jersey’s

Right to Know Act, there was no preexisting legisla-

tion protecting trade secrets submitted by registrants.

In such a situation the entity submitting data cannot

have a “reasonable investment-backed expectation” that

the agency receiving the data will maintain it in con-

fidence. Consequently disclosure of the data is not a tak-

ing for which the state must pay compensation under

the Fifth Amendment or the Fourteenth Amendment.

Employers may face the unpleasant choice of disclos-

ing trade secrets or limiting or shutting down opera-

tions in New Jersey. This may be a more onerous di-

72a

lemma than Monsanto faced, but the reasoning in the

Monsanto case is nevertheless applicable here: as long

as the employer is aware of the conditions under which

the data are submitted and as long as the conditions are

rationally related to a legitimate government interest,

a submission under the Right to Know Act does not con-

stitute a taking. 81 L.Ed.2d at 835.

4. Other Trade Secret Contentions: Having concluded

that the absence of trade secret protection for certain

substances does not constitute a taking requiring com-

pensation, it is unnecessary to pursue other inquiries

which the Court made in the Monsanto case. In par-

ticular, it is unnecessary to determine whether, as de-

fendants assert here, New Jersey provides a means of

compensating persons whose trade secrets are taken in

the course of implementing state regulatory programs,

thus rendering injunctive relief inappropriate.

E. Disposition of Motions: The pending motions must

be disposed of upon the basis of the foregoing conclusions.

Although the plaintiffs in the Chamber of Commerce

Action originally moved for an order for a preliminary

injunction against enforcement of the Right to Know

Act, they later joined the motion for summary judgment

filed by plaintiffs in the Fragrance Materials Association

Action. Those plaintiffs moved for summary judgment

(or, in the alternative, for a preliminary injunction) on

Count I of their complaint (premption) and on Count II

of their complaint (trade secrets).

Fed.R.Civ.P. 56 provides that summary judgment shall

be rendered 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 a judgment as a matter of law. I find that

there are no genuine issues of fact insofar as the pre-

emption and trade secret claims are concerned. The

73a

facts relating to preemption are established by the fed-

eral and state statutes and regulations and by the un-

disputed legislative history of those statutes. The facts

relating to trade secrets are established by the same

material and by the affidavits submitted by the parties.

Consequently summary judgment will be entered in

both actions (i) declaring that the Right to Know Act

is preempted by the OSH Act and the federal Hazard

Communication Standard to the extent that the Right

to Know Act affects employers in the manufacturing sec-

tor (SIC Codes 20-39) and (ii) permanently enjoining

defendants from enforcing the Right to Know Act

against such employers until the Act and regulations

adopted pursuant to it have been approved by the Secre-

tary of Labor pursuant to the provisions of the OSH Act.

As a practical matter this grant of summary judg-

ment gives the plaintiffs in the Fragrance Materials

Association Action full relief and should constitute a

final judgment in that action. In the Chamber of Com-

merce Action there remain persons who are members of

the association plaintiffs who are not employers in the

manufacturing sector and consequently are not within

the terms of the order for summary judgment which will

be entered pursuant to the preceding paragraph.

In the Chamber of Commerce Action an order will be

entered (i) denying plainttiffs’ motion for summary

judgment on the preemption issue insofar as the Right

to Know Act affects employers who are not in the manu-

facturing sector and (ii) denying plaintiffs’ motion for

summary judgment on the trade secret issue. The motion

of these plaintiffs for a preliminary injunction will be

denied, since, for the reasons previously discussed, they

have not shown any likelihood of prevailing on the merits.

The intervenors’ cross-moved for summary judgment

in the Fragrance Materials Association Action on the

preemption and trade secrets claims. Their motion will

74a

be denied on the merits on the preemption claim and will

not be disposed of on the trade secrets claim since sum-

mary judgment in favor of plaintiffs in that action

makes it unnecessary to reach the trade secrets issue.

However, the intervenors are deemed also to have

moved for summary judgment on these issues in the Cham-

ber of Commerce Action. In that action (i) their motion

for summary judgment on the preemption issue insofar

as it relates to employers in the manufacturing sector

will be denied; (ii) their motion for summary judgment

on the preemption issue insofar as it relates to employers

in the non-manufacturing sector will be granted; (ili)

their motion for summary judgment on the trade secret

claims will be granted.

The attorneys for plaintiffs are requested to submit

appropriate forms of orders implementing this opinion.

‘s/ Dickinson R. Debevoise

DICKINSON R. DEBEVOISE

U.S.D.J.

Dated: January 3,1985

75a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

Civil Action No. 84-3255

NEW JERSEY STATE CHAMBER OF COMMERCE, et als.,

Plaintiffs,

VS.

ROBERT E. HUGHEY, Commissioner of Environmental

Protection, et als.,

Defendants,

—and—

JOSEPH H. RODRIGUEZ, Public Advocate

of the State of New Jersey, et als.,

Defendant-Intervenors,

Civil Action No. 84-3892

FRAGRANCE MATERIALS ASSOCIATION OF THE

UNITED STATES, et als.,

Plaintiffs,

VS.

WILLIAM VAN NOTE, Acting Commissioner of Labor

for State of New Jersey, et als.,

Defendants,

—and—

JOSEPH H. RODRIGUEZ, Public Advocate

of the State of New Jersey, et als.,

Defendant-Intervenors.

76a

ORDER

{Entered on the Docket 1-11-1985]

THIS MATTER having been brought before the Court

on motions of the plaintiffs in these consolidated actions

for summary judgment or, in the alternative, for pre-

liminary injunctive relief and cross-motion of the

defendant-intervenors for summary judgment; and the

Court having considered the moving papers, affidavits and

briefs submitted by the parties and having heard the

argument of counsel;

IT IS on this 10th day of January, 1985,

ORDERED as to the Chamber of Commerce Action,

Civil Action No. 84-3255:

1. That summary judgment is entered in favor of

plaintiffs in the Chamber of Commerce Action declaring

that the New Jersey Worker and Community Right to

Know Act (“Right to Know Act’) is preempted by the

OSH Act and the federal Hazardous Communication

Standard (“Standard”) to the extent that the Right to

Know Act affects employers in the manufacturing sector,

SIC Codes 20-39;

2. That defendants are permanently enjoined from en-

forcing the Right to Know Act in its entirety against

employers in the manufacturing sector until the Right to

Know Act and regulations adopted pursuant thereto have

been approved by the Secretary of Labor pursuant to the

provisions of the OSH Act;

3. That the motion for sumary judgment of plaintiffs

in the Chamber of Commerce Action on the preemption

issue insofar as it affects employers in the non-manufac-

turing sector is denied;

4. That the motion for summary judgment of the

plaintiffs in the Chamber of Commerce Action on the

issue of trade secrets is denied;

5. That the motion for preliminary injunction of plain-

tiffs in the Chamber of Commerce Action insofar as it

relates to employers not in manufacturing sector is

denied ;

6. That the motion for summary judgment of defend-

ant-intervenors on the preemption issue insofar as it re-

lates to employers within the manufacturing sector is in

all respects denied;

7. That the motion for summary judgment of defend-

ant-intervenors in the Chamber of Commerce Action on

the preemption issue insofar as it relates to employers not

in the manufacturing sector is granted;

8. That the motion for summary judgment of defend-

ant-intervenors in the Chamber of Commerce Action on

the issue of trade secrets insofar as it relates to employers

in the manufacturing sector is granted.

s/ Dickinson R. Debevoise

DICKINSON R. DEBEVOISE

U.S.D.C.J.

78a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

Civil Action No. 84-3892D and 84-3255

FRAGRANCE MATERIALS ASSOCIATION OF THE UNITED

STATES; FLAVOR AND EXTRACT MANUFACTURERS’ AS-

SOCIATION; BUSH BOAKE ALLEN, INC.; Dracoco, INC.;

FIREMENICH, INC.; INTERNATIONAL FLAVORS AND FRA-

GRANCES, INC.; ISOGENICS, INC.; H.J. KOHNSTAMM &

Co., INc.; V. MANE FILS, INc.; NOVILLE ESSENTIAL OIL

COMPANY, INC.; POLAROME MANUFACTURING CORP. ;

RourRE BERTRAND DUPONT, INC.; TAKASAGO USA, INC,;

UNGERER & Co.; and UNIVERSAL FRAGRANCE CORPORA-

TION, Plaintiffs,

WILLIAM VAN Norte, Acting Commissioner of Labor for

State of New Jersey; J. RICHARD GOLDSTEIN, Commis-

sioner of Health for State of New Jersey; ROBERT E.

HuUGHEY, Commissioner of Environmental Protection

for State of New Jersey, Defendants,

and

JoseEPH H. RopRIGUEZ, Public Advocate of the State of

New Jersey; NEW JERSEY STATE INDUSTRIAL UNION

CouncIL, AFL-CIO (IUC); CITIZEN ACTION OF NEW

JERSEY; PHILADELPHIA AREA PROJECT ON OCCUPA-

TIONAL SAFETY & HEALTH (PHILAPOSH); NEw

JERSEY ENVIRONMENTAL LOBBY; NEW JERSEY STATE

FIREMEN’S MUTUAL BENEVOLENT ASSOCIATION (F MBA) ;

INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, NEW

JerseEY AFL-CIO (IAFF); COMMUNICATION WORKERS

or AmMeERicA, AFL-CIO (CWA); District THREE, IN-

TERNATIONAL UNION OF ELECTRONIC, ELECTRICAL,

TECHNICAL, SALARIED AND MACHINE WORKERS, AFL-

CIO (IUE): INTERNATIONAL LADIES GARMENT WORK-

79a

ERS’ UNION, AFL-CIO (ILGWU); AMALGAMATED

CLOTHING AND TEXTILE WORKERS UNION, AFL-CIO,

CENTRAL AND SOUTH JERSEY JOINT BoarD (ACTWU);

UNITED PAPERWORKERS INTERNATIONAL UNION, AFL-

CIO (UPIU); OIL, CHEMICAL AND ATOMIC WORKERS

UNION, AFL-CIO, LOcALS 8-149, 8-760, AND 8-5570

(OCAW); UNITED AUTO WORKERS UNION, AFL-CIO,

LOcAL 502 (UAW); CHEMICAL WORKERS ASSOCIATION,

INc.; INDEPENDENT OIL WORKERS UNION; TRENTON

EDUCATION ASSOCIATION; ALUMINUM, BRICK’ & GLASS

WORKERS INTERNATIONAL UNION, AFL-CIO, LOcAL

514-G; PENNSYLVANIA FEDERATION, BROTHERHOOD OF

MAINTENANCE OF WAY EMPLOYEES, AFL-CIO; COALI-

TION AGAINST TOXICS; LEAGUE OF CONSERVATION VOT-

ERS (NEW JERSEY) ; CLEAN WATER ACTION (WASHING-

TON, D.C. AND NEW JERSEY; STUDENT PUBLIC INTEREST

RESEARCH GROUP OF NEW JERSEY (N.J. PIRG); EN-

VIRONMENTAL ACTION (WASHINGTON, D.C.) ; LEAGUE

OF WOMEN VOTERS OF NEW JERSEY; SIERRA CLUB (NEW

JERSEY) ; AMERICAN LUNG ASSOCIATION OF NEW JERSEY;

NEW JERSEY TENANTS ORGANIZATION (NJTO); NEW

JERSEY ASSOCIATION OF COUNTY HEALTH OFFICERS, and

NEW JERSEY HEALTH OFFICERS ASSOCIATION,

Defendant-Intervenors.

FINAL JUDGMENT

[Filed Jan. 10, 1985]

This action came on for hearing before the Court on

plaintiffs’ motion for summary judgment, the Honorable

Dickinson R. Debevoise, United States District Judge,

presiding, and the issues having been duly heard and a

decision having-been rendered ;

It is ORDERED and ADJUDGED that the New Jersey

“Worker and Community Right-to-Know Act,” N.J.S.A.

34:5A-1, et seg., insofar as said Act is applicable to

80a

employers in the manufacturing sector (SIC Codes 20-39

inclusive’, is preempted by the Occupational Safety and

Health Act of 1970 (“OSH Act’), 29 U.S.C. §§ 651 et

seq., and the Final Rule entitled “Hazard Communication”

promulgated by the Occupational Safety and Health Ad-

ministration on 25 November 1983, 48 Fed. Reg. 53280

et seq., 29 C.F.R. § 1910.1200, and defendant state offi-

cials, their successors, agents, employees, attorneys, and

all those acting in concert with said defendants, are hereby

permanently enjoined from enforcing, directly or indirectly

any of the provisions of said New Jersey Act or regula-

tions issued pursuant thereto against the individual plain-

tiffs or any of the members of the plaintiff associations;

provided, however, that nothing herein shall preclude the

defendant state officials from submitting such provisions

to the Secretary of Labor as part of a State plan pursuant

to the provisions of § 18 of the OSH Act, 29 U.S.C. § 667.

It is further ORDERED that the claims in Counts II and

III of plaintiffs’ Complaint, having been rendered moot by

this Final Judgment in plaintiffs’ favor on the claims

asserted in Count I, are therefore dismissed without

prejudice.

January 10, 1985

/s/ Dickinson R. Debevoise

DICKINSON R. DEBEVOISE

Clerk of Court

United States District Judge

Dated at Newark, New Jersey this

ary, 1985.

day of Janu-

8la

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

Civil Action No. 84-3892D, No. 84-3255D

FRAGRANCE MATERIALS ASSOCIATION

OF THE UNITED STATES, et al.,

Plaintiffs,

i A

WILLIAM VAN NOTE, et al.,

Defendants.

ORDER

[Filed Feb. 25, 1985]

Upon consideration of the motion of the defendant state

officials to stay the final judgment of this Court pending

appeal, and the Court having concluded that defendants

have failed to make a sufficient showing with respect to

likelihood of success, harm to the respective parties, and

the public interest, it is hereby

ORDERED that the motion to stay the judgment is

denied.

/s/ Dickinson R. Debevoise

DICKINSON R. DEBEVOISE

United States District Judge

Dated Feb. 25, 1985

82a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

March 7, 1985

Nos. 85-5087, 5088, 5095

NEW JERSEY STATE CHAMBER OF COMMERCE, et al.

VS.

ROBERT E. HUGHEY, ETC., et al.

JOSEPH A. RODRIGUEZ, ETC., et al.,

Defendant-Intervenor

(D.C. Civil 84-3255)

FRAGRANCE MATERIALS ASSOCIATION OF THE

UNITED STATES, et al.

VS.

WILLIAM VAN NOTE, ETC., et al.

(D.C. Civil 84-3892)

ROBERT E. HUGHEY, J. RICHARD GOLDSTEIN, M.D. and

WILLIAM VAN NOTE,

Appellants, 85-5087

JOSEPH H. RODRIGUEZ, ETC., et al.,

Appellants, 85-5088

N.J. STATE CHAMBER OF COMMERCE,

CHEMICAL INDUSTRY COUNCIL OF N.J., et al.,

Appellants, 85-5095

83a

Present: GIBBONS and BECKER, Circuit Judges.

1. Motion by appellants in No. 85-5087 and appellants in

No. 85-5088 for a stay of the district court order (as

stated and attached on p. 37 in joint brief in support of

motion) and judgment dated January 10, 1985, pending

appeals,

and

Motion for an expedited appeal with suggested briefing

schedule:

—

Brief and appendix of appellants, cross appellees 10

days from date of this Court’s order;

Brief of appellees, cross appellants 10 days from

service of appellants, cross appellees;

Reply briefs, if any, 5 days from service of brief of

appellee, cross appellants;

Oral argument four weeks after parties’ briefs are filed

in the above-entitled cases.

Respectfully,

/s/ Valerie Young

Deputy Clerk 7-3080

enc.

84a

The foregoing Motion for a stay pending appeal is denied.

The case will be listed for disp. during the week of

June 17, 1985. The Clerk is ordered to fix a briefing

schedule accordingly.

By the Court,

/s/ John J. Gibbons

Judge

Dated: March 21, 1985

vy/ee: BDF

JPMcK

SAT

J.J.C Jr.

85a

UNITED STATES COURT OF APPEALS

THIRD CIRCUIT

Nos. 85-5087, 85-5088 and 85-5095

NEW JERSEY STATE CHAMBER OF COMMERCE, CHEMICAL

INDUSTRY COUNCIL OF NEW JERSEY, NEW JERSEY BUSI-

NESS AND INDUSTRY ASSOCIATION, CHEMICAL SPECIAL-

TIES MANUFACTURERS ASSOCIATION, INC., MERCK & Co.,

INC., MAGNESIUM ELEKTRON, INC., CP CHEMICALS, INC.,

CHEM-MARK, INC., EXXON CHEMICAL AMERICAS, a divi-

sion of Exxon Chemical Company, a division of Exxon

Corporation, SCHERING CORPORATION, ESSEX CHEMICAL

CORPORATION, INGERSOLL-RAND COMPANY, and SHELL

CHEMICAL COMPANY, a division of Shell Oil Company

ROBERT E. HUGHEY, Commissioner of Environmental Pro-

tection; J. RICHARD GOLDSTEIN, M.D., Commissioner of

Health, and WILLIAM VAN NOTE, Acting Commissioner

of Labor and and The State of New Jersey and AMY

Piro, Acting Public Advocate of the State of New

Jersey; NEW JERSEY STATE INDUSTRIAL UNION COUN-

cIL, AFL-CIO (IUC) ; CITIZEN ACTION OF NEW JERSEY;

PHILADELPHIA AREA PROJECT ON OCCUPATIONAL SAFETY

& HeEALTH (PHILAPOSH); NEW JERSEY ENVIRON-

MENTAL LOBBY; NEW JERSEY STATE FIREMEN’S MUTUAL

BENEVOLENT ASSOCIATION (FMBA); INTERNATIONAL

ASSOCIATION OF FIREFIGHTERS, NEW JERSEY AFL-CIO

(IAFF) ; COMMUNICATION WORKERS OF AMERICA, AF'L-

CIO (CWA); DISTRICT THREE, INTERNATIONAL UNION

OF ELECTRONIC, ELECTRICAL, TECHNICAL, SALARIED

AND MACHINE WorRKERS, AFL-CIO (IUE); INTER-

NATIONAL LADIES GARMENT WORKERS’ UNION, AFL-

CIO (ILGWU) ; AMALGAMATED CLOTHING AND TEXTILE

WoRKERS UNION, AFL-CIO, CENTRAL AND SOUTH

JERSEY JOINT BOARD (ACTWU); UNITED PAPERWORK-

ERS INTERNATIONAL UNION, AFL-CIO (UPIU); OIL,

86a

CHEMICAL AND ATOMIC WORKERS UNION, AFL-CIO,

LOcALS 8-149, 8-760, and 8-5570 (OCAW); UNITED

AUTO WORKERS UNION, AFL-CIO, Loca 502 (UAW) ;

CHEMICAL WORKERS ASSOCIATION, INC.; INDEPENDENT

OIL WORKERS UNION, TRENTON EDUCATION ASSOCIA-

TION; ALUMINUM, BRICK & GLASS WORKERS INTERNA-

TIONAL UNION, AFL-CIO, LOCAL 514-G; PENNSYLVANIA

FEDERATION, BROTHERHOOD OF MAINTENANCE OF WAY

EMPLOYEES, AFL-CIO; COALITION AGAINST TOXICS;

LEAGUE OF CONSERVATION VOTERS (NEW JERSEY) ;

CLEAN WATER ACTION (WASHINGTON, D.C. AND NEW

JERSEY) ; STUDENT PUBLIC INTEREST RESEARCH GROUP

OF NEW JERSEY (N.J. PIRG); ENVIRONMENTAL AC-

TION (WASHINGTON, D.C.) ; LEAGUE OF WOMEN VOT-

ERS OF NEW JERSEY; SIERRA CLUB (NEW JERSEY) ;

AMERICAN LUNG ASSOCIATION OF NEW JERSEY; NEW

JERSEY TENANTS ORGANIZATION (NJTO) ; NEW JERSEY

ASSOCIATION OF COUNTY HEALTH OFFICERS; and NEW

JERSEY HEALTH OFFICERS ASSOCIATION,

Defendant-Intervenors,

FRAGRANCE MATERIALS ASSOCIATION OF THE UNITED

STATES, FLAVOR AND EXTRACT MANUFACTURER’S ASSO-

CIATION, BUSH BOAKE ALLEN, INc., DRAGOCO, INC.,

FIRMENICH, INC., INTERNATIOAL FLAVORS AND FRA-

GRANCES, INC., ISOGENICS, INc., H.J. KOHNSTAMM & Co.,

INc., V. MANE FILES, INC., NOVILLE ESSENTIAL OIL

COMPANY, INC., POLAROME MANUFACTURING CORP.,

ROURE BERTRAND DUPONT, INC., TAKASAGO USA INC.,

UNGERER & Co., and UNIVERSAL FRAGRANCE CORPORA-

TION

WILLIAM VAN NOTE, Acting Commissioner of Labor for

State of New Jersey; J. RICHARD GOLDSTEIN, Commis-

sioner of Health for State of New Jersey; ROBERT E.

HUGHEY, Commissioner of Environmental Protection for

State of New Jersey.

87a

Appeal of Robert E. Hughey, J. Richard Goldstein, M.D.,

and William Van Note, Appellants in No. 85-5087

Appeal of Amy Piro, Acting Public Advocate of the

State of New Jersey, et al.,

Defendant-Intervenors, Appellants in No. 85-5088

Appeal of New Jersey State Chamber of Commerce, et al.,

Appellants in No. 85-5095

Argued June 18, 1985

Decided Oct. 10, 1985

Theodore M. Lieverman, Philadelphia, Pa., for amici

curiae, The Hon. Mark B. Cohen, et al.

Robert W. Thomson, Debra M. Coulson, Blair S. Me-

Millin, Reed Smith Shaw & McClay, Pittsburgh, Pa., for

amici curiae, Manufacturers Ass’n for Tri-County, Ap-

pleton Papers, Inc., Ellwood City Forge Corp. and

McDanel Refractory Co.

John J. Carlin, Jr. (argued), Lisa Pollak, Martin

Cronin, Farrell, Curtis, Carlin & Davidson, Morristown,

N.J., for N.J. State Chamber of Commerce, et al.

John P. McKenna (argued), Daniel F. Shea, McKenna

& Shea, Washington, D.C., Daniel R. Thompson, Law

Offices of Daniel R. Thompson, Washington, D.C., for

Fragrance Materials Ass’n, et al.

Paul Bardacke, Atty. Gen., Douglas Meiklejohn, Chris-

topher D. Coppin, Asst. Attys. Gen., Santa Fe, N.M., for

amici curiae, the State of N.M. and the New Mexico

Environmental Imp. Div.

88a

Irwin I. Kimmelman, Atty. Gen. of N.J., Michael

R. Cole, First Asst. Atty. Gen., Michael S. Bokar, Deputy

Atty, Gen. (argued), Trenton, N.J., for defendant Robert

E. Hughey, Com’r of Environmental Protection, et al.

Amy Piro, Acting Public Advocate of New Jersey,

Richard A. Goldberg, Sharon A. Treat, Asst. Deputies

Public Advocate, Div. of Public Advocacy, Trenton, N.J.,

Reitman, Parsonnet, Maisel & Duggan, Sidney Reitman,

Bennett D. Zurofsky (argued), Newark, N.J., Public

Interest Law Center of Philadalphia, Jerome Balter,

Philadelphia, Pa., for Amy Piro, Acting Public Advocate,

et al.

Before GIBBONS and BECKER, Circuit Judges, and

DIAMOND, District Judge.*

OPINION OF THE COURT

GIBBONS, Circuit Judge:

This is an appeal from a final summary judgment in

consolidated actions challenging the constitutionality of

the New Jersey Worker and Community Right to Know

Act, N.J.Stat.Ann. § 34:5A-1 to -31 (West 1984), which

requires the disclosure of substances that may pose en-

vironmental hazards. The plaintiffs! contend that the

statute is preempted in its entirety by the federal Occu-

pational Safety and Health Act of 1970, Pub.L. No. 91-

* Hon. Gustave Diamond, United States District Judge for the

Western District of Pennsylvania, sitting by designation.

1 The plaintiffs include the New Jersey State Chamber of Com-

merce, three chemical and business associations, eight pharma-

ceutical and chemical companies, the Fragrance Materials Associ-

ation of the United States, the Flavor and Extract Manufacturers’

Association, and thirteen corporations which manufacture, com-

pound, mix, or blend fragrances. The original defendants are the

New Jersey Commissioners of Environmental Protection, Health,

and Labor, and the State. The New Jersey Public Advocate and

twenty-nine labor unions and environmental organizations are in-

tervening defendants.

89a

596, 84 Stat. 1590 (1970), codified at, 29 U.S.C.

§§ 651-678 (1982) (OSH Act), and that the disclosure

requirements are an unreasonable exercise of the state’s

police power which will result in a taking of trade secrets

without due process. The district court, 600 F.Supp. 606

(D.N.J.1985), held that the Right to Know Act, as ap-

plied to workers in the manufacturing sector,’ is pre-

empted by the OSH Act and OSHA’s Hazard Communica-

tion Standard, 29 C.F.R. § 1900.1200 (1984). The dis-*

trict court further held that the provisions of the Right

to Know Act that apply to employers outside the manu-

facturing sector are unseverable. The court therefore

permanently enjoined enforcement of the Act against

employers in the manufacturing sector until the state

submits a plan to the Secretary of Labor, pursuant to

29 U.S.C. § 667(b), and obtains his approval of the state

enforcement plan. The court also entered a declaratory

judgment that the Act is not a taking of trade secrets

without due process, and is not preempted as applied to

employers not in the manufacturing sector. All parties

appeal. Since we review a summary judgment our re-

view is plenary. We affirm in part and reverse in part.

The Right to Know Act

The legislative findings and declaration of purpose are

included in the statute, which provides in relevant part:

[T]he proliferation of hazardous substances in the

environment poses a growing threat to the public

2The Hazard Commuication Standard regulates employers who

are “engaged in a business within SIC [Standard Industrial Clas-

sification] Codes 20-39 where chemicals are either used, or are

produced for use or distribution.” 29 C.F.R. § 1910.1200(c) (1984).

SIC Codes 20-39 correspond to the manufacturing sector of the

economy For purposes of this opinion, “‘manufacturing sector” shall

be considered synonymous with SIC Codes 20-39.

90a

health . . . [and] individuals have an inherent right

to know the full range of risks they face so that

they can make reasoned decisions and take informed

action concerning their employment and their living

conditions.

. [L]ocal health, fire, police, safety and other

government officials require detained [sic] informa-

tion about the identity . . . of hazardous substances

. in order to adequately plan for, and respond to,

emergencies... .

... [T]he toxie contamination of the air, water,

and land in this State has caused a high degree of

concern among its residents . . . [which is] need-

lessly aggravated by the unfamiliarity of these sub-

stances to residents.

The Legislature therefore determines that it is in

the public interest to establish a comprehensive pro-

gram for the disclosure of information about haz-

ardous substances in the workplace and the com-

munity, and to provide a procedure whereby resi-

dents of this State may gain access to this informa-

tion.

N.J.Stat.Ann. § 34:5A-2 (West 1984). Thus the New

Jersey Legislature intended the Right to Know Act to

make information about toxic chemicals available, (1)

to all New Jersey residents who might be exposed to such

chemicals, in the workplace or elsewhere, and (2) to

public safety officers who might need such information to

prevent, or respond to, emergencies.

The Right to Know Act directs the New Jersey Depart-

ment of Environmental Protection (DEP) to develop an

environmental hazardous substance list, which must con-

tain:

substances used, manufactured, stored, packaged,

repackaged, or disposed of or released into the en-

9la

vironment of the State which, in the department’s

determination, may be linked to the incidence of

cancer; genetic mutations; physiological malfunc-

tions, including malfunctions in reproduction; and

other diseases; or which, by virtue of their physical

properties, may pose a threat to the public health

and safety.

N.J.Stat.Ann, § 34:5A-4(a). The DEP promulgated such

a list pursuant to the Act. N.J.Admin.Code tit. 7, § 1G-

2.1 (1984). DEP is further directed to develop an en-

vironmental survey “designed to enable employers to re-

port information about environmental hazardous sub-

stances at their facilities.” N.J.Stat.Ann. § 34:5A-4(b).

A separate section of the Act directs the Department

of Health to develop a workplace hazardous substance

list which must include: (1) all substances regulated by

the Occupational Safety and Health Administration

(OSHA) under 29 C.F.R. § 1910, subpart z; (2) all en-

vironmental hazardous substances; and (3) all sub-

stances that “pose[{] a threat to the health or safety of

an employee.” N.J.Stat.Ann. § 34:5A-5(a). The work-

place hazardous substance list, therefore, by definition

includes all substances on the environmental hazardous

substance list, and may include some additional sub-

stances. The list as promulgated is codified at N.J.

Admin.Code, tit. 8, § 59 App. A (1984). The Department

of Health must develop a “hazardous substance fact

sheet” for every item on the workplace hazardous sub-

stance list. N.J.Stat.Ann § 34:5A-5(d). The Department

of Health is further directed to designate a “special

health hazard substance list” indicating those substances

that are so dangerous that employers will not be per-

mitted to make a trade secret claim as to them. N.J.

Stat.Ann. § 34:5A-5(b). Finally, the Department of

Health is directed to develop a workplace survey to facili-

tate reporting of workplace hazardous substances by

employers. N.J.Stat.Ann. § 34:5A-5(c).

92a

Employere must provide completed surveys to county

health departments, local fire and police departments, and

to the Department of Health (workplace surveys) or the

DEP (environmental surveys). N.J.Stat.Ann. § 34:5A-7.

Upon receipt of an employer’s completed workplace sur-

vey, the Department of Health must provide the em-

ployer with a hazardous substance fact sheet (prepared

by the Department, pursuant to section 5(d) of the Act)

for each hazardous substance reported by that employer.

N.J.Stat.Ann. § 34:5A-8(a). The Department of Health

must keep the workplace surveys on file, and make them

available to any person who submits a written request.

N.J.Stat.Ann. § 34:5A-10. Likewise, DEP must main-

tain a current file of environmental surveys and make

them available to any person who makes a written re-

quest. N.J.Stat.Ann. § 34:5A-9. The Act provides that

“any person” may obtain access to environmental and

workplace surveys; this information is not limited to

employees.

Several sections of the Act are designed to ensure

that information about hazardous substances is commu-

nicated to employees in particular. Employers must

maintain a central file of workplace and environmental

surveys, and notify employees of the file’s availability.

N.J.Stat.Ann. § 34:5A-12. Each employer must also im-

plement an employee education and training program

designed to inform employees cf the risk of hazardous

chemicals, and to train them in pr

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