# Appendix — New Jersey Chamber of Commerce v. Hughey > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1355%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1989 - **Citation:** 492 U.S. 920 ## Text — _ a Supreme Court, US, ‘LEG MAY 15 1996 P¥scrx F SPANION, uf CLERK : —- ee } Rcweesn — 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, We 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 la 25a Sla 82a 108a 112a 12la il 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 la 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 2a 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 a 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. 3a 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 4a 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 oa 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- 6a 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. 7a 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 9a 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. © 1910.1200(d). While the federal hazard communication 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, Ms 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, ve 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- Se 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1355%3A2. Public record. Not legal advice.