Petition for Writ of Certiorari — Manufacturers Ass'n of Tri-County v. Knepper

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86 - il 02 Supreme Court, U.S. -

FILED

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DEC 10 \96F

JOSEPH F. SPANIOL, JR.

No.

IN THE CLERK

SUPREME COURT OF THE UNITED — ES wi

OCTOBER TERM, 1986

MANUFACTURERS ASSOCIATION OF TRI-COUNTY, et. al.,

Petitioners

JAMES W. KNEPPER, JR.., et al.,

Respondents

ON CERTiORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

* ROBERT W. THOMSON

LOUIS C. LONG

MEYER, DARRAGH,

BUCKLER, BEBENEK & ECK

2000 The Frick Building

Pittsburgh, PA 15219

(412) 553-7059

DONALD A. TORTORICE

DUANE, MORRIS &

HECKSCHER

203 Pine Street

Harrisburg, PA 17108-1003

(717) 238-8161

Counsel for Petitioners

* Counsel of Record

QUESTION PRESENTED

Is the Pennsylvania Worker and Community Right-

to-Know Act preempted by the Occupational Safety and

Health Act of 1970, under the broad “relating to” test

expressed by Congress, where the state law regulates the

same matters of evaluation and communication of workplace

chemical hazards as the federal Hazard Communication

Standard, while also purporting to serve other limited

purposes?

LIST OF PARTIES BELOW

Manufacturers Association of Tri-County, Appleton

Papers Inc., Shenango Incorporated, International Metals

Reclamation Company, Inc., Ellwood City Forge Corpora-

tion, McDanel Refractory Company, Pennsylvania Foundry-

men’s Association, Manufacturers Association of Erie,

Manufacturers Association of York, Pennsylvania

Drycleaners and Launderers Association, American Mush-

room Institute, Donsco, Inc., Reading Gray Iron Castings,

Inc., Washington Mold Company, Confer, Smith and Com-

pany, Inc., Unicast Company and the Hospital Association

of Pennsylvania were plaintiffs in the proceedings below and

are Petitioners herein. James W. Knepper, Jr., Secretary of

the Department of Labor and Industry, Herbert Thieme,

Deputy Secretary for Administration of the Department of

Labor and Industry, the Pennsylvania Department of Labor

and Industry, and the Commonwealth of Pennsylvania were

defendants below. Pennsylvania American Federation of

Labor-Congress of Industrial Organizations, Council 13,

American Federation of State, County and Municipal

Employees, Pennsylvania Chapter of the Sierra Club, Dela-

ware Valley Council for Clean Air, Philadelphia Area Pro-

ject on Occupational Safety and Health, United Mine

Workers of America, Local 22 of the International Associa-

tion of Firefighters, International Association of Molders

and Allied Workers, Pennsylvania Public Interest Coalition

and the League of Conservation Voters were defendant-

intervenors below:

1. The parent corporation of Appleton Papers Inc. is B.A.T. Industries.

p.l.c. The parent corporation of International Metals Reclamation Com.

pany, Inc. is Inco, Ltd. There are no other parents, affiliates or subsidi-

aries of Petitioner corporations.

ill

TABLE OF CONTENTS

oi) fy 8 ny 2 | i

LIST OF PARTIES BELOW ............0.cceee. i

ey >) iii

RE ET UR UMEMEEEEEED 6 sc cc scccccccccceees Vv

ne eas odo tn oe eee 1

STATEMENT OF JURISDICTION .............. 1

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS INVOLVED ...... l

STATEMENT OF THE CASE .............005:. 5

The OSHA Hazard Communication

es cease ees eceee 5

The Pennsylvania Right-to-Know Act .........7

et Ciba we sos sesso newness 9

REASONS FOR ALLOWANCE OF

RO 5 he 11

The Court of Appeals Has Decided an Important

Question of Federal Law In a Manner Inconsistent

With Applicable Decisions of This Court, Thereby

Destroying the Uniformity of Nationwide Regulation

of Workplace Hazard Communication as Intended by

Congress, and OSHA, and Threatening Federal

Een 6 oie '65 5 a a av ek 6068 owes 0a ox 11

Congress and OSHA Have Clearly Expressed

Their Intent That the Hazard Communication

Standard Have a Broad Preemptive Effect ... 12

The Court of Appeals Ignored This Broad Preemp-

tive Intent and Applied an “Any Other Purpose’”’

Test That Is Contrary to Established Principles of

Preemption Analysis and That Allows Federal

Preemption to Be Easily Circumvented ...... 15

Te ean a hn et ha 0 6o48 oa se oo 21

APPENDIX A - Opinion and Judgment

of the Third Circuit Below ................... A-1

APPENDIX B - Stay of Certified Judgment

in Lieu of Formal Mandate ................... B-1

APPENDIX C - Opinion of the District Court

Se ara Ge tee a re ete ae 3 C-1

APPENDIX D - 29 U.SC. §655 ................ D-1

APPENDIX E - OSHA Hazard Communication

ID Geena sth ae eh a hs oN E-1

MP 56 cekRGAb ES ERAN Dad Ed badd oa emo. F-1

TABLE OF AUTHORITIES

Cases Pages

Alessi v. Raybestos — Manhattan, Inc.,

Ge GH ee RE 5 SS Ci 65 Cos cea ee eeekeas 14

Blum v. Bacon, 457 U.S. 132 (1982) ......... 18

Buczynski v. General Motors Corp.,

616 F.2d 1238 (3d Cir. 1980) ............... i4

Capitol Cities Cable, Inc. v. Crisp,

rg ¥ 2. peer 13

City of Burbank v. Lockheed Air Terminal Inc.,

GES Wee ee CE ho 0 k.0 06.446 6x bases. 12

Fidelity Federal Savings & Loan Ass'n v.

de la Cuesta, 458 U.S. 141 (1982) ............ 12,13

Jones v. Rath Packing Co.,

rR EE Of) Cg, FP aererrerse reer 12

Manufacturers Association of Tri-County v.

Knepper, 623 F. Supp. 1066 (M.D.Pa. 1985) .. .1, 9, 10,

New Jersey Chamber of Commerce v. Hughey,

ygiQe fof Ef: Ss aaa 11,19

Ohio Manufacturers’ Association v. Akron,

801 F.2d 824 (6th Cir. 1986) ................ 11, 18

Perez v. Campbell, 402 U.S. 637 (1971) ....... 18

Retail Clerks Int. Ass’n, Local 1625 v. -

Schermerhorn, 375 U.S. 96 (1963) ........... 12

Shaw v. Delta Air Lines, Inc.,

FP Bs & + Rear ere 12,15

United Steelworkers of America v. Auchter,

168 F.26 G20 GG Cir. ISGB) 2. nce cs cccceces 14

Statutes and Regulations

U.S. Constitution, Article VI, Clause 2 ...... l

Occupational Safety and Health Act of 1970

SP UL. GOURE GEOR. occ cccccrecssevesese passim

OP Gee Oe be cckss dc edebas ceeuassee 1, 2, 5,

DP Wak DONW abeadkaeecneeneseuneees 2

BP Che Cee CPS OD ox vcdcunaveneseenunes 1,2,3

SD Chae Gee OP vk cnn nkkcdnevesed een 12

SD Uae We OP es cetcbicckcvaneseneuee 5, 12,14

BO Us SEs GD wa uceviccarubansteneal 13

| es ren ery l

ee Ges DOU odes 6006054052440 5

SD Un Gees O00 0 nsadcuvawesaeneeuene 5

New Jersey Worker and Community Right

to Know Act, N.J. STAT. ANN.§§39.5A-1 et seq.

Cures Se: SGP i..00 Fucneeeeesies lee 19

Pennsylvania Worker and Community Right-

to-Know Act, 35 PA. STAT. ANN. §§7301

et.seq. (Purdon Supp. 1986) ................ passim

35 PA. STAT. ANN. §7302 (Purdon

Pere eee et ive

35 PA. STAT. ANN. §7303 (a) - (e) (Purdon

SU, SGD i600 kev ibicecececcceeus cane 7

35 PA. STAT. ANN. §7303 (a) (5) (Purdon

SPP eee eu kanetent 16

35 PA. STAT. ANN. §7303 (e) (Purdon

BD bc. n-00setawsewereee eee ee 8

35 PA. STAT. ANN. §7303 (e), (f (Purdon

PR ee een 9

vii

35 PA. STAT. ANN. §7303 (g) (Purdon

SE bdo scbb anc dude seus einvnsd ens 8

35 PA. STAT. ANN. §7304 (a) (Purdon

Ss ST vouokacchseeeecualaeeaseees 8

35 PA. STAT. ANN. §7304 (b) (Purdon

, SED cn cdanewsedund cenenedeaness -

35 PA. STAT. ANN. §7304 (c) (Purdon

CE a neh case case bkseueseses ee xas 8

35 PA. STAT. ANN. §7305 (c) - (e) (Purdon

DD bh tcccabeeeanveeeundssasss tes 8

35 PA. STAT. ANN. §7306 (a) (Purdon

EE dec ub Ca Ne dan eeddbanavadadake 8

35 PA. STAT. ANN. §7306 (c), (d) (Purdon

SE SE Scab da ddbdansdhewebeeces eens 8

35 PA. STAT. ANN. §7307 (Purdon

6 3 cs ane dee deuencs Cab aun ees 7,8

35 PA. STAT. ANN. §7308 (Purdon

Se I ana bc aos 60 ab heh euseuae cease 8

OSHA Hazard Communication Standard,

29 C.F.R. §§1910.1200 et seq. .............. passim

29 C.F.R. §1910.1200 (a) (2) ................ 3,13

BGs OD. occu ccccccéecesess 16

pet Me a 6

29 C.F.R. §1910.1200 (d) (3)... 2... eee. 16

SD Gos ED cncccccéconcccecosi 6

29 C.F.R. §1910.1200 (f) (1) - (4)... 2... 2... 6

SD Gee SD bccccccccccesccess 6

29 C_F.R. §1910.1200 (g) (2) (i) - (iv)... 22... .. 6

29 C.F.R. §1910.1200 (g) (2) (v) - (x) .... 2... 6

Vill

29 C.F.R. $1910.1200 (h) ............ awae

29 C.F.R. Part 1910, Subpart Z ............. 16

EE ona n-k.b ee 6A056 646 0K Os 11

48 Fed. Reg. 53282 - 53284 (1983) ...... ‘ance

48 Fed. Reg. 53283 - 53284 (1983) ........... 14

48 Fed. Reg. 53334 (1983) ................. 14

Other Authorities

S. Rep. 1281, 91st Cong. 2d Sess. 4, reprinted —

in 1970 U.S. Code Cong. & Ad. News 5180 . .13

RIGHT-TO-KNOW NEWS (Special Issue,

eee ee ee es er tel ol ll

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

MANUFACTURERS ASSOCIATION OF

TRI-COUNTY, et al.,

Petitioners

Vv.

JAMES W. KNEPPER, JR.., et al.,

Respondents

ON CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Petitioners Manufacturers Association of Tri-County,

et al., respectfully pray that a Writ of Certiorari issue to

review the judgment and opinion of the United States Court

of Appeals for the Third Circuit entered on September 12,

1986.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Third Circuit is reported at 801 F.2d 130 (3d Cir. 1986).

The opinion and judgment are set out in Appendix A hereto.

The certified judgment in lieu of formal mandate was stayed

on November 24, 1986. A copy of the stay order is set out in

Appendix B hereto. The opinion of the United States Dis-

trict Court for the Middle District of Pennsylvania is

reported at 623 F.Supp. 1066 (M.D.Pa. 1985) and is set out

in Appendix C hereto.

STATEMENT OF JURISDICTION

The judgment of the Circuit Court was made and

entered on September 12, 1986. The jurisdiction of this Court

is invoked pursuant to 28 U.S.C. §1254 (1).

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS INVOLVED

The Supremacy Clause, Article 6, clause 2 of the

United States Constitution states:

This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof; and all

Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme

Law of the Land; and the Judges in every State shall

be bound thereby, any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding.

29 U.S.C. §655 is set out in full in Appendix D hereto.

29 U.S.C. §667 (a) - (c) provides:

(a) Nothing in this chapter shall prevent any State

agency or court from asserting jurisdiction under

(b)

(c)

(1)

(2)

(3)

State law over any occupational safety or health

issue with respect to which no standard is in effect

under section 655 of this title.

Any State which, at any time, desires to assume

responsibility for development and enforcement

therein of occupational safety and health stan-

dards relating to any occupational safety or health

issue with respect to which a Federal standard has

been promulgated under section 655 of this title

shall submit a State plan for the development of

such standards and their enforcement.

The Secretary shall approve the plan submitted

by a State under subsection (b) of this section, or

any modification thereof, if such plan in his judg-

ment —

designates a State agency or agencies as the

agency or agencies responsible for administering

the plan throughout the State,

provides for the development and enforcement of

safety and health standards relating to one or

more safety or health issues, which standards (and

the enforcement of which standards) are or will

be at least as effective in providing safe and

healthful employment and places of employment

as the standards promulgated under section 655

of this title which relate to the same issues, and

which standards, when applicable to products

which are distributed or used in interstate com-

merce, are required by compelling local conditions

and do not unduly burden interstate commerce,

provides for a right of entry and inspection of all

workplaces subject tothis chapter which is at least

as effective as that provided in section 657 of this

title, and includes a prohibition on advance notice

of inspections,

(4) contains satisfactory assurances that such agency

or agencies have or will have the legal authority

and qualified personnel necessary for the enforce-

ment of such standards,

(5) gives satisfactory assurances that such State will

devote adequate funds to the administration and

enforcement of such standards,

(6) contains satisfactory assurances that such State

will, to the extent permitted by its law, establish

and maintain an effective and comprehensive

occupational safety and health program applica-

ble to all employees of public agencies of the State

and its political subdivisions, which program is

as effective as the standards contained in an

approved plan,

(7) requires employers in the State to make reports

to the Secretary in the same manner and to the

same extent as if the plan were not in effect, and

(8) provides that the State agency will make such

reports to the Secretary in such form and contain-

ing such information, as the Secretary shall from

time to time require.

The OSHA Hazard Communication Standard, 29

C.F.R. §§1910.1200 et seq., is set out in full in Appendix E

hereto. Section 1910.1200 (a) (2) provides:

This occupational safety and health standard is

intended to address comprehensively the issue of

evaluating and communicating chemical hazards to

employees in the manufacturing sector, and to preempt

any state law pertaining to this subject. Any state

which desires to assume responsibility in this area

may only doso under the provisions of section 18 of the

Occupational Safety and Health Act (29 U.S.C. 651

et seg.) which deals with state jurisdiction and state

plans.

The Pennsylvania Worker and Community Right-to-

Know Act, 35 PA. STAT. ANN. §§7301 et seq. (Purdon Supp.

1986) is set out in full in Appendix F hereto.

STATEMENT OF THE CASE

By enacting the Occupational Safety and Health Act

of 1970, 29 U.S.C. §§651 et seq. (hereinafter referred to as

“the OSH Act’”’), Congress directed the Occupational Safety

and Health Administration of the U.S. Department of Labor

(hereinafter referred to as “OSHA’’) to promulgate uniform,

national occupational safety and health standards, 29 U.S.C.

§655, and expressly provided that any such federal standard

would preempt any state standard relating to the same issue,

unless the state standard is approved by OSHA. 29 U.S.C.

§667 (b). Pursuant to the OSI Act, OSHA has established

a uniform national standard, known as the Hazard Commu-

nication Standard, governing the evaluation of, and commu-

nication about, hazardous substances in the workplace. 29

C.F.R. §§1910.1200 et seq. Pennsylvania has, by its Worker

and Community Right-to-Know Act, 35 PA. STAT. ANN.

§§7301 et seq. (Purdon Supp. 1986) (hereinafter referred to

as “‘the Right-to-Know Act’’), also sought to regulate the

evaluation of, and communication about, workplace hazards.

Pennsylvania has not submitted any of the provisions of its

state standard for approval by OSHA.

Petitioners include manufacturers subject to the

requirements of the OSHA Hazard Communication Stan-

dard and the Pennsylvania Right-to-Know Act. They filed

suit in the U.S. District Court for the Middle District of Penn-

sylvania requesting a declaratory judgment that the Right-

to-Know Act is preempted and that the Pennsylvania

Department of Labor and Industry be permanently enjoined

from enforcing the Right-to-Know Act against Petitioners.

The district court had jurisdiction under 28 U.SC. §1331 and

28 U.S.C. §1337 (a).

The OSHA Hazard Communication Standard

The OSHA Hazard Communication Standard is cum-

prehensive, requiring manufacturers to engage in an expen-

sive multi-stage process of evaluating hazards and informing

employees of the risks of exposure to those hazards. The prin-

cipal requirements of the OSHA Standard are as follows:

(1) Chemical manufacturers and importers must

evaluate the hazards of all chemicals produced or

imported by them, 29 C.F-R. §1910.1200 (d); and

employers must develop a written hazard commu-

nication program, which lists the hazardous

chemicals in their workplaces and describes the

methods the employers will use to inform

employees of hazards associated with exposure to

those chemicals. 29 C.F R. §1910.1200 (e).

(2) Chemical manufacturers and importers must pre-

pare a material safety data sheet (MSDS) for each

of the hazardous substances covered by the

Standard, and must transmit the MSDS to distri-

butors, who make them available to all manufac-

turing employers. 29 C.F.R. §1910.1200 (g). Each

MSDS must include the chemical’s name, physi-

cal and chemical characteristics, physical hazards

and health hazards. 29 C.F.R. §1910.1200 (g) (2)

(i)-(iv). For each chemical, the MSDS must also

state the primary routes of entry, the OSHA per-

missible exposure limit, whether it has been listed

as an actual or potential carcinogen, any gener-

ally applicable precautions for safe handling and

use, any generally applicable control measures,

and emergency and first-aid procedures. 29 C.F.R.

§1910.1200 (g) (2) (v) - (x).

(3) Chemical manufacturers, importers and distribu-

tors must label each container of hazardous chem-

icals located in or leaving their workplaces with

both the identities of all hazardous chemicals and

appropriate hazard warnings. 29 C.F.R.

§1910.1200 (f) (1) — (4).

(4) Employers must provide employees with informa-

tion and training concerning hazardous chemicals

in their work areas. 29 C.F.R. §1910.1200 (h).

The OSHA Standard explicitly preempts any state law

pertaining to its subject matter, unless approved as part of

a state plan submitted in accordance with Section 18 of the

OSH Act. 29 C.F.R. §1910.1200 (a) (2).

The Pennsylvania Right-to-Know Act

On November 5, 1984, Pennsylvania enacted the

Right-to-Know Act. Like the OSHA Standard, the Right-to-

Know Act focuses upon the identification of hazardous chem-

icals in the workplace and the communication of informa-

tion about those chemicals to employees by means of MSDS,

container labeling and employee information and training

programs. The principal requirements of the Right-to-Know

Act are as follows:

(1) Employers must survey their workplaces for the

presence of substances found on a list of hazard-

ous substances prepared by the Pennsylvania

Department of Labor and Industry. The results of

the survey must be posted in the workplace and

reported on forms supplied by the Department.

The employers must also designate on the form

any workplace hazardous substance that qualifies

as either a “‘special hazardous substance’” or an

“environmental hazard.”* 35 PA. STAT. ANN.

§ §7303 (a) - (e), 7307 (Purdon Supp. 1986). A sep-

arate environmental hazard survey form must be

completed if requested by the Department. 35 PA.

2. Defined as posing a special hazard to health and safety. 35 PA. STAT.

ANN. §7302 (Purdon Supp. 1986).

3. Defined as posing a danger if released into the environment. 35 PA.

STAT. ANN. §7302 (Purdon Supp. 1986).

(2)

(3)

(4)

STAT. ANN. §7303 (g) (Purdon Supp. 1986).

Manufacturers, importers and suppliers of hazard-

ous substances must prepare an MSDS for each

hazardous substance, and must transmit them to

their customers. Employers must obtain an MSDS

for each hazardous substance used in the work-

place. 35 PA. STAT. ANN. §7304 (b) (Purdon Supp.

1986). In addition to the information required by

the OSHA Hazard Communication Standard,

each MSDS must include the Chemical Abstracts

Service number and all chemicals comprising 3%

or more of the substance, whether hazardous or

not, as well as all hazardous substances compris-

ing 1% or more of the substance, and all special

hazardous substances comprising .01% or more of

the substance. 35 PA. STAT. ANN. §7304 (c)(Pur-

don Supp. 1986).

Suppliers must insure that all containers of chem-

icals produced in, or delivered to, Pennsylvania are

labeled. 35 PA. STAT. ANN. §7304 (a) (Purdon

Supp. 1986). Employers must insure that all con-

tainers of hazardous substances in the workplace

are labeled with both the identities of all hazard-

ous chemicals (including all hazardous substances

constituting 1% or more and all special hazard-

ous substances constituting .01% or more of a mix-

ture) and appropriate hazard warnings. 35 PA.

STAT. ANN. §7306 (a) (Purdon Supp. 1986).

Employers must also label the ports of any pipe-

line system to identify the contents. 35 PA. STAT.

ANN. §7306 (c), (d) (Purdon Supp. 1986).

Employers must provide employees with informa-

tion and training concerning hazardous chemicals

in their work area. 35 PA. STAT. ANN. §§7303 (e),

7305 (c) - (e), 7306 (d), 7307, 7308 (Purdon Supp.

1986). Information concerning hazardous sub-

stances in the workplace must also be provided

upon request to citizens and police, fire and emer-

gency response agencies. 35 PA. STAT. ANN.

§§7303 (e), (f) (Purdon Supp. 1986).

The Rulings Below

The district court and the court of appeals disagreed

on whether the most crucial provisions of the Right-to-Know

Act were preempted by the OSHA Standard, and were in

accord on relatively few points, even though both claimed

to be following the same test and precedent. The principal

holdings below were as follows:

(1) Hazardous Substance Surveys. The district court

held that the hazardous substance survey provi-

sions were generally preempted in the manufac-

turing sector, with the exception of those

requirements relating to hazards designated as

environmental hazards. 623 F.Supp. at 1072-73.

The court of appeals, in contrast, upheld all of

these survey requirements, with the sole excep-

tion of the workplace posting provision. 801 F.2d

at 137-138.

(2) MSDS. The district court held that the MSDS

requirements were preempted as to all workplace

hazards not designated as environmental hazards,

except when the substance is delivered to non-

manufacturing employers. 623 F.Supp. at 1074.

The court of appeals upheld virtually all the

MSDS requirements, excepting only the manufac-

turing employer’s obligation to make the contents

of the MSDS known to his employees. 801 F.2d at

140-141.

(3) Labeling. The district court held that the con-

tainer labeling requirements were preempted,

except when the container is delivered to non-

manufacturing employers. 623 F.Supp. at 1073-74.

The court of appeals upheld all labeling require-

ments, with the exception of workplace labeling

of hazards not designated as environmental haz-

ards. 801 F.2d at 138-140.

(4) Employee Training. The district court held that

the employee training provisions were preempted

in the manufacturing sector. 623 F.Supp. at 1074.

The court of appeals agreed as to workplace haz-

ard training, but suggested that the state might

retain such a requirement for environmental haz-

ards. 801 F.2d at 142.

The effect of the court of appeals’ decision is to place

additional burdens on manufacturers and employers, par-

ticularly with respect to labeling and MSDS. For example,

the provisions of the Pennsylvania law upheld by the court

of appeals require labels and MSDS to include not only haz-

ardous chemicals, but all chemical ingredients whether haz-

ardous or not. :

REASONS FOR ALLOWANCE OF THE WRIT

The Court of Appeals Has Decided an Important

Question of Federal Law In a Manner Inconsis-

tent With Applicable Decisions of This Court,

Thereby Destroying the Uniformity of Nationwide

Regulation of Workplace Hazard Communication

as Intended by Congress and OSHA, and

Threatening Federal Supremacy.

The extent to which state right-to-know laws are

preempted by the OSH Act and the Hazard Communication

Standard is an increasingly important question of federal

law, requiring a consistent Supremacy Clause analysis faith-

ful to Congressional intent. Here, the court of appeals has

disregarded the broad statutory preemption language, as

well as the OSH Act’s carefully balanced preemption scheme

and OSHA's expressed purpose to replace the chaos of state

right-to-know regulation with a uniform federal standard.

The court of appeals’ decision will encourage state and local

governments to circumvent the OSH Act’s requirements for

approval of any state regulation, and lead to proliferation

of parallel and duplicative state regulatory schemes. Many

states and other local governmental authorities already

have been persuaded to pass their own right-to-know laws

without seeking federal approval* Courts of appeals have

had to address the extent of the preemptive effect of the OSH

Act and the Hazard Communication Standard on state right-

to-know laws three times within the past year® This court

now has the opportunity to clarify the law in this important

area, and to give effect to the intent of Congress by preserv-

4 At least 17 states without OSHA approved plans have some version

of a right-to-know law. Thompson Pub. Group, RIGHTTO-KNOW NEWS

at 4 (Special Issue, Oct. 1, 1986). By comparison, 23 jurisdictions have

received state plan approval. See 29 C.F.R. Part 1952.

5. In addition to the case below, the cases addressing preemption of

right-to-know laws are New Jersey Chamber of Commerce v. Hughey. 774

F.2d 587 (3d Cir. 1985) and Ohio Manufacturers’ Association v. Akron.

801 F 2d 824 (6th Cir 1986)

ing the uniformity of hazard communication regulation in

the workplace.

Congress and OSHA Have Clearly Expressed

Their Intent That the Hazard Communication

Standard Have a Broad Preemptive Effect

A state statute is expressly preempted when Congress

has stated its intent to preempt the field. Jones v. Rath Pack-

ing Co., 430 U.S. 519, 525 (1977). Where preemption is

express, no conflict between federal law and state law is

necessary to invalidate the state provision. City of Burbank

v. Lockheed Air Terminal Inc., 411 U.S. 624 (1973).

Established preemption doctrine therefore stresses the

significance of Congressional intent. Shaw v. Delta Air

Lines, Inc., 463 U.S. 85, 95 (1983); Fidelity Federal Savings

& Loan Ass’n _ v. de la Cuesta, 458 U.S. 141, 152 (1982).

Indeed, Congress’ intent is to be the “ultimate touchstone”

in preemption cases. Retail Clerks Int. Ass’n, Local 1625

v. Schermerhorn, 375 U.S. 96, 103 (1963).

Congress made clear in the OSH Act its intent to pre-

empt state occupational safety and health laws. To ensure

uniformity, Congress first authorized OSHA to set national

standards. 29 U.S.C. §655. Then, in Section 18 of the OSH

Act, Congress expressly provided for preemption of state laws

relating to issues with respect to which a federal standard

has been promulgated. 29 U.S.C. §667 (b). Congress explicitly

defined the extent to which it intended to preempt state law.

Section 18 (a) authorizes the states to regulate in any occupa-

tional safety and health area where “no standard is in

effect.”” 29 U.S.C. §667 (a). When OSHA has issued a stan-

dard, Section 18 (b) requires any state that wants to regu-

late in the area covered by the standard to submit a plan to

OSHA for approval. 29 U.S.C. §667 (b).

Significantly Congress did not simply give the states

concurrent jurisdiction over occupational safety and health.

The OSH Act was adopted in 1970 because “State regula-

tion [had not] proven sufficient to the need” and because

“(t]he spread of industry and the mobility of the workplace

combined to make the health and safety of the worker truly

a national concern.” S.Rep. No. 1281, 91st Cong. 2d Sess. 4,

reprinted in 1970 U.S. Code Cong. and Ad. News 5180. The

strong Congressional policy to avoid duplicative regulation

is found throughout the OSH Act. It is especially evident in

the provision addressing situations where, as here, the state

standard is “applicable to products which are distributed

or used in interstate commerce.’ To be approved by OSHA

such a state standard must not only be at least equally effec-

tive as the federal standard; it must also be “required by com-

pelling local conditions and ... not unduly burden

interstate commerce.” 29 U.S.C. §667 (c) (2). The assessment

of these factors is to be made by OSHA, and not by individual

state legislatures. Section 18 is clearly mandatory. Any state

that wishes to implement a law relating to an issue for which

there is an OSHA standard must do so by submitting it to

OSHA for approval.

Likewise, the OSHA Hazard Communication

Standard explicitly preempts any state law pertaining to the

same subject unless approved as part of a state plan. 29

C.F.R. §1910.1200 (a) (2). Such a federal regulation preempt-

ing state law is entitled to judicial deference when it

represents a “reasonable accommodation” by an adminis-

trative agency of matters committed to its care and it does

not actually conflict with the intent of Congress. Fidelity

Federal Savings and Loan Ass'n v. de la Cuesta, 458 U.S. 141,

154 (1982); Capitol Cities Cable, Inc. v. Crisp, 467 U.S. 691,

699 (1984). As explained in the preamble accompanying pub-

lication of the Standard, preemption was necessary because

of the “recent proliferation of state and local right-to-know

laws” and “the regulatory burden” they imposed® 48 Fed.

6. At the time the Standard was issued, twelve states and six local

governments had some type of regulation related to hazard communica-

tion, while thirteen other states and three other loca) governments had

legislation pending 48 Fed. Reg. 53282 - 84 (1983).

Reg. 53283 — 84(1983). OSHA also cited the “strong policy

justification for uniform application throughout the distri-

bution system of a national” standard. OSHA found that a

single federal standard would serve to enhance employee

protection as well as reduce the burden on interstate com-

merce posed by multiple laws. 48 Fed. Reg. 53334 (1983).

The specific statutory preemption test enacted by Con-

gress in the OSH Act has been given a broad construction

by this Court in interpreting other statutes. Congress

provided, in Section 18 (b) of the OSH Act, that any state law

“relating to’ an occupational safety and health issue for

which a federal standard was in effect would be preempted,

unless approved by OSHA. 29 U.S.C. 8667 (b). Thus, state

laws “relating to” the issue covered by the Hazard Communi-

cation Standard are preempted. United Steelworkers of

America v. Auchter, 763 F.2d 728, 736 (3d Cir. 1985).

Although this Court has not previously addressed the mean-

ing of “‘relating to” in the context of the OSH Act, when

deciding another express preemption case it made clear that

state regulation “relating to’ the forbidden subject is

preempted no matter what the purpose of the state law.

Whatever the purpose or purposes of the New Jersey

statute, we conclude that it ‘relate[s] to pension plans’

governed by ERISA because it eliminates one method

for calculating benefits—integration—that is permit-

ted by federal law.

Alessi v. Raybestos - Manhattan, Inc., 451 U.S. 504, 524

(1981). Ironically, the Third Circuit decision affirmed by this

Court in Alessi, had also held that the “relating to” lan-

guage in the statute before it should be given a broad mean-

ing in “its normal dictionary sense.’ Buczynski v. General

Motors Corp., 616 F.2d 1238, 1250 (3d Cir. 1980). Two years

7. The Hazard Communication Standard and the courts below used

the term “pertaining to’, while the OSH Act uses the term “relating to”

when expressing the extent of preemption. The terms appear to be

synonymous.

later, in a unanimous opinion written by Justice Blackmun,

this Court found that “[a] law ‘relates to’ an employee ben-

efit plan, in the normal sense of the phrase, if it has a con-

nection with or reference to such a plan.” Shaw v. Delta Air

Lines, Inc., 436 U.S. 85, 96-97, (1983). There is no reason

to believe that Congress intended the “‘relating to” phrase

in the OSH Act to have anything other than the same “plain”

meaning recognized in Shaw. Id. at 97. Thus to follow this

Court’s decision, the court of appeals should have examined

the Right-to-Know Act to determine whether it related to,

had aconnection with or reference to, the issue of the evalu-

ation and communication of occupational hazards.

The Court of Appeals Ignored This Broad Pre-

emptive Intent and Applied an “Any Other Pur-

pose” Test That Is Contrary to Established

Principles of Preemption Analysis and That

Allows Federal Preemption to Be Easily

Circumvented

Even acursory review of the court of appeals’ opinion

reveals its sharp divergence from the established preemp-

tion principles discussed above. One looks in vain for any

reference to the Congressional purpose or OSHA’s intent.

Instead, the court of appeals has concocted a novel preemp-

tion test that allows it to seize upon any excuse to uphold

the requirements of the Right-to-Know Act. The court of

appeals’ analysis places it squarely outside this Court’s stan-

dards, and flouts the expressed intent of Congress and

OSHA. Rather than promoting unformity and adherence to

the scheme established by Congress for OSHA review of

state plans, the court actually discourages such compliance

by allowing easy evasion.

While the court made passing reference to the statu-

tory test it should have applied, it thereafter completely

abandoned this line of reasoning, making no further men-

ticn of how or whether any part of the Pennsylvania law per-

tains or relates to issues addressed in the OSHA Standard.

Instead, the court of appeals purportedly based its decision

upon an analysis of the “primary purpose” of individual sec-

tions of the Pennsylvania law. This analysis is more appar-

ent than real, however, since the opinion reveals that the

Court upheld virtually any provision of the Pennsylvania

law for which it could perceive any purpose other than haz-

ard communication to employees. Far from requiring the

state to establish the validity of its primary purpose, the

court merely assumed that the presence of any other pur-

pose insured that the primary purpose of any given require-

ment was not hazard communication to employees.

The consequences of the court of appeals’ analysis are

evident in its handling of the hazardous substance survey

requirements. The court upheld survey requirements in part

because of the “broad range of hazards ... illustrated by

the comprehensiveness of the Pennsylvania hazardous sub-

stance list.” 801 F.2d at 137. But all of the hazardous

substances—apart from those alsc deemed environmental

hazards should they escape from the workplace—are solely

workplace hazards. Many, if not all, would also be deemed

workplace hazards under the OSHA Standard Nor is the

remainder of the court’s reasoning on this issue any sounder.

The court defends the hazardous substance surveys on the

extraordinary ground that without them employers could

not meet their obligation to send a survey to any interested

member of the public. 801 F.2d at 138. Surely, possible pub-

lic curiosity—where employees and their representatives are

8. The court of appeals appears to have mistakenly assumed that only

the toxic and hazardous substances described in ‘““OSHA’s list” in 29

C.F.R. Part 1910, Subpart Z, and specifically incorporated into the Right-

to-Know Act, 35 PA. STAT. ANN. §7303(aX5) (Purdon Supp. 1986), are

regulated under the OSHA Standard, when it stated that the Pennsy]-

vania hazardous substance list “includes many other substances as well.”

801 F.2d at 138. In fact, the OSHA Standard applies to any “health haz-

ard” or “physical hazard”. 29 C.F.R. §1910.1200(c). The Subpart Z list is

only one of the sources upon which a manufacturer must rely in deter-

mining whether chemicals are hazardous under the Standard. 29 C.F.R.

§$1910.1200(dX3).

«)

—"

most likely to be the interested parties-—is no basis for a

duplicative scheme of workplace hazard regulation. If no

more is needed than this, little if anything will remain of

Section 18.

The court then proceeded with an exercise in blatant

bootstrapping. It upheld the labeling provisions on the

ground that labeling will help employers comply with the

hazard survey requirements of the Pennsylvania law? 801

F.2d at 139. From this the court concluded that “it cannot

be said that the primary purpose of the supplier’s labeling

requirement ... is hazard communication to employees.’

Id. Although the labeling requirements of the Pennsylva-

nia law were clearly related to hazard communication to

employees, the possibility of some additional use for labels

was deemed sufficient to validate them.

Similarly, the court of appeals analyzed the MSDS pro-

visions in the Pennsylvania law as follows:

The MSDS serve purposes other than hazard commu-

nication to workers. They can facilitate the prepara-

tion of hazardous substance surveys, which will be

useful to public safety officials, and environmental haz-

ard surveys, which will be useful to agencies concerned

with emissions and discharges. Since we cannot say

that the preparation of and distribution of MSDS has

as its primary purpose the communication of hazards

to employees, that requirement is not expressly

preempted by the OSH Act, even in the manufactur-

ing sector. °

801 F.2d at 141. That the state required documents can

conceivably be “‘useful”’ to someone other than employees,

was enough for the court to find that their “primary pur-

pose” could not be hazard communication to employees. Such

analysis completely thwarts Congress’ purpose and OSHA's

intent.

9. Petitioners know of nothing in the record to support this finding.

The attitude exhibited by the Third Circuit contrasts

sharply with the deference shown by the Sixth Circuit to

OSHA’s regulatory intent concerning preemption of local

right-to-know laws. In Ohio Manufacturers’ Association v.

Akron, 801 F.2d 824 (6th Cir. 1986), the Sixth Circuit held

local right-to-know laws to be preempted to the same extent

as state laws, recognizing that “considerable weight should

be accorded to an executive department’s construction of a

statutory scheme it is entrusted to administer.’ Id. at 833.

Accord, Blum v. Bacon, 457 U.S. 132, 141 (1982). The Third

Circuit below did not even mention OSHA’s intent.

The faiiure of the court of appeals’ preemption analy-

sis is clear from its consequences. If “any other purpose’ is

to be the test, a state legislature will always be able to devise

a rationale for a statute to escape preemption. Instead of

using Congressional intent as its touchstone, the court of

appeals has provided the states with a wide avenue to cir-

cumvent the statutory scheme. Nor is there any reason to

hope that the mischief will be restricted to the area of occupa-

tional safety and health. Ifa state is free to disregard Con-

gress’ desire for uniformity when expressed in the language

of the OSH Act, it would also be free to do so when Congress

expressed that desire in different language. As this Court

stated when discussing a purpose test in another context,

it will

enable state legislatures to nullify nearly all unwanted

federal legislation by simply publishing a legislative

committee report articulating some state interest or

policy—other than frustration of the federal objective—

that would be tangentially furthered by the proposed

state law.

Perez v. Campbell, 402 U.S. 637, 652 (1971).

The confusion that can arise from the Third Circuit’s

approach to preemption is illustrated by a comparison to its

decision on the validity of the New Jersey Worker and Com-

munity Right to Know Act.’° New Jersey Chamber of Com-

merce v. Hughey, 774 F.2d 587 (3d Cir. 1985). The New Jer-

sey Act, like the Pennsylvania statute, required employers

to complete workplace hazard surveys and distribute them,

not only to employees, but also to the state regulatory agency

and to local fire and police departments. Yet the Third Cir-

cuit held that the New Jersey workplace hazard survey

requirements were preempted in the manufacturing sector,

because their “primary purpose’ was promotion of occupa-

tional safety and health. Id. at 595. In spite of the finding

by the district court below that the Pennsylvania and New

Jersey survey provisions were “substantially identical’,

the court of appeals found the Pennsylvania provisions valid.

A test so nebulous that it leads to opposite rulings concern-

ing virtually indistinguishable statutes cannot be allowed

to remain the law.

Furthermore, a decision by this Court reaffirming the

broad preemptive purpose expressed in the OSH Act and the

OSHA Standard will make it substantially less likely that

the issue of implied preemption)” with its painstaking

10. NJ. STAT. ANN. §§39.5A-1 et. seg. (West Supp. 1986).

11. 623 F.Supp. at 1072.

12. Although only express preemption was argued to the district court

and the court of appeals below, the Third Circuit addressed and rejected

the possibility of implied preemption with respect to the surveys, !abel-

ing and MSDS requirements of the Right-to-Know Act. The court could

not properly carry out such an inquiry on the record before it, and any

analysis of implied preemption in this case would require a remand to

the district court for an evidentiary hearing to determine whether a con-

flict between the federal and state statutory requirements exists.

While this Court will not be required to decide the implied preemp-

tion issues, should this Petition be granted, it will be necessary, as a result

of the court of appeals’ action, to take jurisdiction over those issues in

order for effective relief to be granted. Should any of the challenged

requirements of the Right-to-Know Act be found not expressly preempted,

a remand to the district court to resolve the remaining implied preemp-

tion issues would be appropriate.

section-by-section search: for conflicts, will have to be

litigated in every jurisdiction that has adopted a right-to-

know law. The savings in time and resources for litigants

and the judiciary will be enormous.

CONCLUSION

For the foregoing reasons, Petitioners pray that a Writ

of Certiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Third Circuit in this

case.

ROBERT W. THOMSON

LOUIS C. LONG

MEYER, DARRAGH, BUCKLER,

BEBENECK & ECK

2000 The Frick Building

Pittsburgh, PA 15219

(412) 553-7059

DONALD A. TORTORICE

DUANE, MORRIS & HECKSCHER

203 Pine Street

Harrisburg, PA 17108-1003

(717) 238-8161

Counsel for Petitioners

Counsel of Record

Dated: December 10, 1986

A-1

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NOS. 86-5032 and 86-5066

MANUFACTURERS ASSOCIATION OF

TRI-COUNTY, APPELTON PAPERS, INC.,

SHENANGO INCORPORATED,

INTERNATIONAL METALS RECLAMATION

COMPANY, INC., ELLWOOD CITY FORGE

CORPORATION, AND McDANEL REFRACTORY

COMPANY,

Appellants in No. 86-5066

vs.

JAMES W. KNEPPER, JR., Secretary of the

Department of Labor and Industry. THE

PENNSYLVANIA DEPARTMENT OF LABOR

AND INDUSTRY, and the COMMONWEALTH

OF PENNSYLVANIA

(D.C. Civil No. 85-1027)

PENNSYLVANIA FOUNDRYMEN'S

ASSOCIATION, MANUFACTURERS

ASSOCIATION OF ERIE, MANUFACTURERS

ASSOCIATION OF YORK, PENNSYLVANIA

DRYCLEANERS AND LAUNDERERS

ASSOCIATION, AMERICAN MUSHROOM

INSTITUTE, DONSCO, INC., READING GRAY

IRON CASTINGS, INC., WASHINGTON MOLD

COMPANY, CONFER, SMITH AND COMPANY,

INC., UNICAST COMPANY, and THE HOSPITAL

ASSOCIATION OF PENNSYLVANIA,

Appellants in No. 86-5066

vs.

A-2

JAMES W. KNEPPER, oR.. individually and in

his official capacity as Secretary of Labor and

Industry for the Commonwealth of

Pennsylvania. HERBERT THIEME. individually

and in his official capacity as Deputy Secretary

and Administration of the Department of Labor

and Industry Pennsylvania American

Federation of Labor-Congress of Industrial

Organizations. Council 13. American

Federation of State County and Municipal

Employees. Pennsylvania Chapter of the Sierra

Club, Delaware Valley Council for Clean Air.

Philadelphia Area Project on Occupational

Safety and Health. United Mine Workers of

America, Local 22 of the International

Association of Fire Fighters. International

Association of Molders and Allied Workers.

Pennsylvania Public Interest Coalition and

League of Conservation Voters. Intervenors.

Appellants in No. 86-5032

(D.C. Civil No. 85-1028)

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA - SCRANTON

(D.C. Civil Nos. 85-1027 and 85-1028)

Argued: July 21, 1986

Before: GIBBONS, WEIS. and

SLOVITER, Circuit Judges

(Opinion filed September 12, 1986)

A-3

Robert W. Thomson, Esq. (Argued)

Meyer. Darragh, Buckler. Bebenek & Eck

2000 The Frick Building

Pittsburgh, Pennsylvania 15219

Attorneys for Manufacturers Association of

Tri-County; Appleton Papers Inc.; Shenango

Incorporated; International Metals Reclamation

Company, Inc.; Ellwood City Forge Corporation

and McDanel Refactory Company

Donald A. Tortorice, Esq.

Arthur K. Hoffman. Esq. (Argued)

Duane, Morris & Heckscher

203 Pine Street

P. O. Box 1003

Harrisburg. Pennsylvania 17108-1003

Attorneys for Pennsylvania Foundrymen's

Association: Manufacturers Association of York:

The Hospital Association of Pennsylvania:

Pennsylvania Drycleaners and Launderers

Association; American Mushroom Institute;

Donsco, Inc.’ Reading Gray Iron Castings. Inc.;:

Washington Mold Company; Confer, Smith and

Company, Inc. and Unicast Company

LeRoy S. Zimmerman. Attorney General

John G. Knorr, III, Senior Deputy

Attorney General

Andrew S. Gordon, Chief Deputy Attorney

General. Chief, Litigation Section

Allen C. Warshaw, Executive

Deputy Attorney General

Thomas M. Crowley (Argued)

Deputy Attorney General

A-4

Delancey W. Davis. Deputy Attorney General

Office of Attorney General

15th Floor, Strawberry Square

Harrisburg, Pennsylvania 17120

Attorneys for James W. Knepper, Jr. and

Herbert Thieme

Theodore M. Lieverman, Esq. (Argued)

1200 Walnut Street, Suite 400

Philadelphia, Pennsylvania 19107

Attorneys for Intervenors, Pennsylvania

AFL-CIO, et al.

McDermott, Will & Emery

Timothy K. Street. N.W.

Washington, D.C. 20006

Bruce H. Hamill. General Counsel

J. Andrew Rhode Island Avenue. N.W.

Washington. D.C. 20005

Attorneys for Amicus Curiae National Paint and

Coatings Association, Inc.

Jordan Rossen, General Counsel

Leonard R. Page (Member)

Richard W. McHugh. Associate

General Counsel

International Union, UAW

8000 East Jefferson Avenue

Detroit, Michigan 48214

Richard H. Markowitz, Esq.

Markowitz & Richman

1100 North American Building

121 South Broad Street

Philadelphia, Pennsylvania 19107

Attorneys for Amicus Curiae International

Union, UAW

a |

A-5

OPINION OF THE COURT

GIBBONS, Circuit Judge:

This is an appeal from a final summary judg-

ment in consolidated actions challenging the

constitutionality of the Pennsylvania Worker and

Community Right-to-Know Act (the Act), 35 Pa. Stat.

Ann. tit. 35, 88 7301-7320 (Purdon Supp. 1986), and

seeking injunctive relief against its enforcement. The

plaintiffs’ contend that the Act is preempted by the

federal Occupational Safety and Health Act of 1970, 29

U.S.C. §8§ 651-678 (1982) (OSH Act) and the

Occupational Safety and Health Administration's

(OSHA) Hazard Communication Standard, 29 C.F.R.

§ 1910.1200 (1985). The plaintiffs also argue that the

Pennsylvania Act violates the commerce clause and

exacts a taking of property for public use without just

compensation. The defendants’ are state officials and a

state department charged with the enforcement of the

1. The plaintiffs include the following:

Manufacturers Association of Tri-County, Appleton

Papers. Inc.. Shenango Incorporated. International

Metals Reclamation Company. Inc.. Ellwood City Forge

Corporation. McDanel Refractory Company.

Pennsylvania Foundrymen’s Association, Manufacturers

Association of Erie. Manufacturers Association of York.

Pennsylvania Drycleaners and Launderers Association.

American Mushroom Institute. Donsco, inc., Reading

Gray Iron Castings. Inc.. Washington Mold Company.

Confer. Smith and Company. Inc.. Unicast Company.

and the Hospital Association of Pennsylvania.

2. The defendants are James W. Knepper. Jr.. Secretary of the

Department of Labor and Industry, Herbert Thieme. Deputy

Secretary for Administration of the Department of Labor and

Industry. the Pennsylvania Department of Labor and Industry, and

the Commonwealth of Pennsylvania.

A-6

Act. Certain labor unions and SeerrCmanteS groups

were permitted to intervene’ for the purpose of

defending the constitutionality of the Act. All parties

moved for summary judgment. The district court,

relying extensively on this court’s opinion in New

Jersey State Chamber of Commerce v. Hughey. 774

F.2d 587 (3d Cir. 1985), which dealt with the New

Jersey Worker and Community Right-to-Know Act

(New Jersey Right-to-Know Act), rejected most of the

plaintiffs’ challenges to the constitutionality of the

Act.* The court held, however, that subsections

7303(e), (f). (i), and (j), subsections 7305(a), (c) and (g),

and subsections 7307(a) and (b) were expressly

preempted in the manufacturing sector’ by the OSH

Act to the extent they pertain to hazardous substance

survey forms. Id. at 1072. Moreover, the district court

also held that sections 7304(a) and 7306 of the Act,

requiring labeling of containers of hazardous

substances, were expressly preempted to the extent

that these sections require manufacturing employers

to label containers used in their place of business and

3. The intervenors include the following:

Pennsylvania American Federation of Labor-Congress of

Industrial Organizations, Council 13, American Federation

of State, County, and Municipal Employees. Pennsylvania

Chapter of the Sierra Club. Delaware Valley Council for Clean

Air, Philadelphia Area Project on Occupational Safety and

Health, United Mine Workers of America, Local 22 of the

International Association of Firefighters, International

Association of Molders and Allied Workers. Pennsylvania

Public Interest Coalition, and the League of Conservation

Voters.

4. The district court opinion is reported. See Manufacturers

Ass'n of Tri-County v. Knepper, 623 F. Supp. 1066 (M.D. Pa. 1985).

5. See United Steelworkers of America v. Auchter, 763 F.2d

728, 738 (3d Cir. 1985) (duly promulgated OSH Act standard, which

governs employees in the manufacturing sector . expressly

preempts state law in that sector).

A-7

to the extent that they require suppliers to label

containers shipped to employers or customers in the

manufacturing sector. Id. at 1073. Additionally, the

court held that section 7308, which requires employers

to provide an education and training program for

employees. was expressly preempted in the

manufacturing sector, and that subsection 7310(a),

which requires the Pennsylvania Department of Labor

and Industry (the Department) to conduct outreach

programs to educate employees and the public, was

expressly preempted insofar as it pertains to the

disclosure of workplace hazards® to employees in the

manufacturing sector. Id. at 1074. Similarly, the court

held that subsection 7310(d), permitting employers to

furnish Hazardous Substance Fact Sheets to

employees. was preempted in the manufacturing

sector. Id. at 1075. Finally, the court held that

subsections 7304(b). (c). (d). (e). (f), and (g), requiring

manufacturers, importers, and suppliers to furnish

Material Data Safety Sheets (MSDS) with shipments

were expressly preempted insofar as they require that

MSDS be furnished for shipments of hazards-

workplace substances destined for manufacturing-

sector customers.

The plaintiffs and the intervenors appeal. The

defendants filed a notice of appeal, but did not pursue

it. As appellees, the defendants defend the district

court's decision to the extent that it upholds the

constitutionality of the Act. The intervenors contend

that the district court erred in holding the hazard

survey requirement, the labeling requirement. the

MSDS requirement. and the education and training

requirement preempted in the manufacturing sector.

6. The district court coined the term “workplace hazard”. and

defined it as “a substance found on the Hazardous Substance list

but not found on the environmental substance list.” 623 F. Supp.

at 1074 n.7.

A-8

The plaintiffs defend the district court's preemption

rulings to the extent the court found preemption. They

contend. however. that the court erred in finding the

labeling and MSDS requirements preempted only to

the extent they apply to users of hazardous substances

in the manufacturing sector: the plaintiffs argue that

preemption should be broader. They also contend that,

once the district court held that the Act was preempted

in the manufacturing sector. see 623 F. Supp. at 1075.

the court should have held the Act entirely invalid

because as a matter of Pennsylvania law the preempted

provisions of the Act were not severable. Some

plaintiffs also contend that the district court erred in

granting summary judgment dismissals of their

commerce clause and taking contentions because

there were genuine issues of material fact as to those

contentions.

We hold that the district court properly applied the

Pennsylvania law of severability. and correctly ruled

that there was no OSH Act preemption outside the

manufacturing sector, that the education and training

requirement was preempted as to employees in the

manufacturing sector. and that the Department

Outreach program was preempted in that sector. We

also hold that the district court erred in holding the

hazard survey, labeling. and MSDS requirements

totally preempted in the manufacturing sector. Finally,

we conclude that the court properly granted summary

judgment on the commerce clause and taking clause

contentions. Thus we-affirm in part and reverse in

part.

Preemption

The Pennsylvania Act is substantially similar

although not identical to the New Jersey Worker and

Community Right to Know Act, N.J. Stat. Ann.

A-9

88 34:5A-l to 31 (West Supp. 1986). which we addressed

in New Jersey State Chamber of Commerce v.

Hughey. 774 F.2d 587 (3d Cir. 1985). Thus that

decision is generally controlling. In Hughey we held

that a state right-to-know act. requiring the collection

and dissemination of information with respect to

hazardous substances was expressly preempted only to

the extent that the state act pertains to issues that are

addressed by a duly promulgated OSHA standard. Id.

at 592. We held, further. that a state right-to-know act

was impliedly preempted only to the extent that it is

impossible to comply with both the state law and the

federal standard. or to the extent that the state law

serves as an obstacle to the accomplishment of the

congressional purposes served by the OSHA standard.

Id. at 594. Finally, we held that the severability of a

state law that was partially preempted was determined

by the law of that state. Id. at 596. With these general

principles in mind, we turn to the parties contentions.

Severability

The plaintiffs’ severability contentions need not

detain us long. The Act contains an express

severability clause:

The provisions of this act are severable. If any

provision of this act or its application to any

person or circumstances [is] held invalid. the

invalidity shall not affect other provisions or

applications of this act which can be given effect

without the invalid provision or application.

Pa. Stat. Ann. tit. 35. § 7320. This broad language

leaves no room for speculation as to the intention of the

Pennsylvania legislature with respect to severability.

Indeed the language of section 7320 is reinforced in

subsection 7319(b). See id. § 7319. Subsection (b) of

A-10

this section discloses that the Pennsylvania legisiature

was fully aware of the possible preemptive effects of

federal legislation. for it provides:

Construction with Federal law. —

This act is to be read in conjunction with any

provision of Federal law providing for the

identification, labeling or providing of

information concerning hazardous substances

and is intended to supplement such Federal

regulation in the interests of protecting the

health and safety of citizens of the

Commonwealth.

Id. § 7319(b). Thus the subsection suggests that the

legislature intended the Act to be operative to the

extent that federal law permits, and that intention is

expressly stated in section 7320.

Despite the clear language of section 7320 and

subsection 7319(b), however, the plaintiffs urge that

those provisions should be disregarded in light of

subsection 7319(d). Subsection 7319(d) reads:

Review of preemption. —

Should Federal Government preemption be

finally adjudicated and result in lessening the

burden on any employer to meet the

requirements of this act. it is the intent that the

General Assembly reexamine this act so that all

employers hereunder shall be reexamined as to

requirements necessary in meeting the

standards of this act so as to treat all employers

fairly and equitably. |

Id. § 7319(d). The plaintiffs seize on subsection (d) as

an expression by the Pennsylvania legislature of the

intention that if any employer is exempted from

coverage by the preemptive effect of federal law, all

Dis.

A-11

other employers must be preempted as well. The

language relied upon cannot be read to convey such a

meaning. It is unclear why all employers in the

construction or service sectors of the economy would

be treated unfairly or inequitably by virtue of an

exemption applicable to manufacturing sector

employers with which they do not compete. More

fundamentally. it is perfectly clear that it is the General

Assembly. not the courts. that must reexamine the act

to determine if further changes are required in the

interest of fairness and equity. The role of the courts is

delineated with unmistakable clarity. The Act is to be

applied to all persons or circumstances to which it can

lawfully be applied. See id. § 7320. The legislature's

specific direction to that effect in this Act is consistent

with its more general direction in the rules of

constitutional construction of Pennsylvania's law.

Those general ruies establish a presumption of

severability. See 1 Pa. Cons. Stat. Ann. § 1925 (Purdon

Supp. 1986).

Hazardous Substance Survey Provisions

As noted above, the district court held that

subsection 7303(e) of the Act was preempted in the

manufacturing sector by the OSHA standard

applicable to employers in that sector. Subsection

7303(e) provides:

Hazardous substance survey form. —

Every employer shall, upon a form supplied by

the department. fill out a hazardous substance

survey for each workplace. providing

information on the hazardous substances

present during the prior year. A listing of the

hazardous substances shall be posted by the

employer as required by section 7[307]. Upon the

A-12

written request of any person in Pennsylvania.

the department shail require the employer to

forward a copy of the completed survey form to

the department within 20 days. The department

shall. in turn. keep a copy of the survey form on

file. and shall immediately transmit a copy of the

form to the original requestor. The employer

shall update the hazardous substance survey

form for each workplace every two years.

Pa. Stat. Ann. tit. 35. § 7303(e). This subsection

appears as part of a general provision that directs the

Department to compile and maintain a list of

hazardous substances. The Department's list includes

all substances found on the latest compilation or issue

of eleven designated lists prepared by other

governmental and nongovernmental agencies

concerned with environmental. health. and safety

issues. One of the eleven designated lists is the OSHA

list of toxic and hazardous substances found in 29

C.F.R. § 1910.1000-.1500 (Subpart Z). See Pa. Cons.

Stat. Ann. tit. 35. 7303(a)(5). The Department's list.

relying on ten other source lists. is. however. more

inclusive than OSHA's list because the Department's

lists refer to environmental and general health

hazards, not merely to workplace health and safety

hazards. Moreover the Department is directed to

include “any other substance or mixture designated

. aS hazardous because of its known or probable

adverse human or environmental effect.” Id. 8 7303(a).

Thus the statutory purpose of the hazardous

substance list is broader than workplace safety. which

is the sole concern of the OSH Act.

The Act requires that the Department create

separate lists of those hazardous substances that shall

be considered “special hazardous substances.” Id.

§ 7303(d). These substances are designated by the

Department as special hazards because their

A-13

“particular toxicity, tumorigenicity, mutagenicity.

reproductive toxicity, flammability. explosiveness.

corrosivity or reactivity poses a special hazard to health

and safety.” Id. 8 7302. The Act also requires that the

Department designate those hazardous substances

that shall be considered “environmental hazards.” Id.

§ 7303(d). Environmental hazards are defined as those

hazards that “because of [their] particular or extreme

properties, pose[ | a danger if released into the

environment.” Id. § 7302. Thus the Department must

prepare three lists: an all-inclusive hazardous

substance list. a special hazardous substance list. and

an environmental hazardous substance list. All three

lists must be transmitted by the Department to every

employer subject to the Act. Id. § 7303(a), (d).

Subsection 7303(e) requires employers to complete

hazardous substance surveys. The survey asks for

information on any hazardous substances, as defined

by the Department's all inclusive hazardous substance

list. that were present in the workplace during the

prior year. The surveys necessarily disclose workplace

hazards. and these hazards, in the manufacturing

sector. include those hazards covered by subpart Z of

OSHA's Hazard Communication Standard. The survey

also discloses the presence of other hazardous

substances that may present environmental or general

health hazards, but not workplace hazards.

Under subsection 7303(f) employers must provide

emerge.icy health and safety agencies with these

surveys and any relevant environmental hazard

information. Id. § 7303(f). Section 7303(f) states:

Access of police, fire and emergency response

agencies. —

Upon the request of a local police. fire or

emergency response agency. within whose

jurisdiction an employer falls. an employer shall

A-14

provide a copy of its latest hazardous substance

survey ... . The employer shall further provide.

upon the request of said agency. all relevant and

available information concerning any

environmental hazards pertaining to the

workplace in question.

Id.

The requirements in the Act that the Department

compile hazardous substance, environmental hazard,

and special hazard lists and transmit those lists to

employers are virtually identical to those in sections

34:5A-4(a) (requiring development of environmental

hazardous substance list), 34:5A-5(a) (requiring

development of workplace hazardous substance list),

34:5A-5(b) (requiring development of special health

hazard list), 34:5A-5(d) (requiring development of

workplace hazardous substance fact sheet). and

34:5A-8 (requiring transmittal to employers of

hazardous substance fact sheet based on items in

employers’ workplace survey) of the New Jersey

Right-to-Know Act. In Hughey, we held that sections

34:5A-4 and 5 were not preempted because the New

Jersey Act depends upon an entirely different hazard

identification scheme than does the federal hazard

disclosure standard. 774 F.2d at 594-95. See also

C.F.R. § 1910.1200(d).(e)(1)(i). The same is true of the

Pennsylvania Act. The Pennsylvania standard relies on

the Department to identify hazardous substances

whereas the federal standard relies primarily on the

original manufacturer or importer. See 29 C.F.R.

§ 1910.1200(d). Therefore the subsections of the

Pennsylvania Act, 7303(a) and 7303(d). authorizing

the development of the hazardous substance. the

environmental hazard, and the special hazard lists are

not preempted. While some of the plaintiffs urge that

the requirement that the Department transmits these

hazardous substance lists to manufacturing-sector

A-15

employers should be preempted. the district court held

otherwise, see 623 F. Supp. at 1071-72 n.5. and that

holding is consistent with Hughey. See 774 F.2d at

595 :n.4 (section 34:5A-8. which requires the New

Jersey Department of Health to provide employers with

a fact sheet for each hazardous substance reported,

held not to be preempted).

In Hughey this court also considered the

requirement in the New Jersey Right-to-Know Act that

employers complete hazardous substance surveys. The

New Jersey statute provides separately for workplace

hazard surveys, N.J. Stat. Ann. § 35:5A-7(a). and

environmental hazards surveys. id. § 35:5A-7(b). We

held that because the primary purpose of the

workplace hazard surveys was the promotion of

occupational health and safety through hazard

communication, section 35:5A-7(a) was preempted in

the manufacturing sector by OSHA’s Hazard

Communication Standard. See 774 F.2d at 595.

However, because we found that the environmental

hazard surveys required by 35:5A-7(b) had a different

purpose. we held that the environmental hazard and

the related filing and disclosure provisions of the New

Jersey Act were not preempted. Id.

In the instant case the district court, relying on

Hughey, held that section 7303(e) of the Pennsylvania

Act. which requires employers to complete hazardous

substance surveys. was entirely preempted because

that provision is virtually identical to section

35:5A-7(a) of the New Jersey Act. See 623 F. Supp. at

1072. This holding misreads both the Pennsyivania

Act and the Hughey opinion. Unlike section

35:5A-7(a). which pertains only to workplace hazards --

the sole concern of the OSHA standard -- section

7303(e) deals with a broad range of hazards, as is

illustrated by the comprehensiveness of the

Pennsylvania hazardous substance list. Although this

A-16

list does include substances found on OSHA's list, it

includes many other substances as well. See Pa. Stat.

Ann. tit. 35, § 7303(a). Moreover substances on the

OSHA list may pose hazards not only to workers. but

also to the environment and public at large if they

escape, and to police. fire. and emergency response

personnel called to a place of business. By exempting

all manufacturing-sector employers from the

requirement that they make hazardous substance

surveys, the district court relieved them of the

obligation, imposed in subsection 7303(f). that such

surveys be made available to public safety agencies and

of the requirement that they be made available to

interested members of the public through the

Department. The more relevant holding in Hughey is

the conclusion that section 34:5A-7(b) of the New

Jersey Act. which requires completion and

distribution of environmental hazardous substance

surveys. is not preempted. Hughey. 774 F.2d at 594 n.

4. Thus the requirements in subsection 7303(e) and

7303(g) that employers make hazardous substance

surveys and environmental hazardous surveys, furnish

them to the public and employees through the

Department on request. see Pa. Stat. Ann. tit. 35,

§ 7305(a) and (c), and the requirement in subsection

7303(f) that employers furnish such surveys to public

safety agencies on request are not preempted.

We recognize the substantial similarities between

the manner in which the New Jersey and Pennsylvania

statutes deal with hazardous substance surveys. We

also recognize, however. that the statutes are drawn

somewhat differently. and we conclude that the

differences are significant. Unlike section 35:5A-5(a) of

the New Jersey Act, section 7303(e) of the Pennsylvania

Act does not have as its primary purpose the promotion

of occupational health and safety through hazard

communication. Therefore it is not expressly

A-17

preempted in the manufacturing sector by the federal

Hazard Communication Standard.

One provision in section 7303(e). however. raises

an express preemption question. The requirement that

“{a] listing of hazardous substances shall be posted by

the employer as required by section 7/307].” Pa. Stat.

Ann. tit. 35. § 7303(e). Section 7307 requires that

every employer post in every workplace “{llists of all

hazardous substances and special hazardous

substances found in the workplace and all

environmental hazards discharged therefrom.” Id.

§ 7307. Section 7307 deals only with notification to

employees of workplace hazards. and the posting

requirement thus is a hazard communication

standard. In the manufacturing sector, therefore. it is

preempted by the OSHA Hazard Communication

Standard. See Hughey. 774 F.2d at 595. However.

because the Act is severable. and the hazard survey

requirement serves purposes other than hazard

communication to employees. the hazard survey

requirement applies even in the manufacturing sector.

while the posting requirement does not.

Our holding that section 7303(e) is expressly

preempted by the OSH Act only to the extent that it

requires posting by employers of hazardous substance

found in the workplace is not dispositive. for although

the district court did not address implied preemption.

such a holding would afford a separate ground for

affirmance. We have examined the summary judgment

with this alternative ground in mind. and we conclude

that manufacturing-sector employer compliance with

both the hazardous substance survey provision and

the OSHA Hazardous Substance Cominunication

Standard is possible and that such compliance.would

not obstruct the accomplishment of the purposes

served by the OSHA standard. The plaintiffs’

complaints about the burdens imposed by separate

A-18

State hazardous substance lists is essentially the same

as the complaint that we rejected in Hughey. 774 F.2d

at 593-94.

Cc.

Labeling Provisions

Section 7304(a) requires that Suppliers of

chemicals ensure that every container is labeled in

accordance with section 7306. Pa. Stat. Ann. tit. 35.

§ 7304(a}. The latter section specifies what labels are

required and imposes on employers a separate

obligation to ensure that each container in the

workplace is appropriately labeled. See id. § 7306. The

plaintiffs defend the district court's holding that

sections 7304(a) and 7306 were preempted in the

manufacturing sector to the extent that they require

manufacturing employers to label containers and to

the extent they require suppliers to label containers

shipped to manufacturing employers. Their defense of

the ruling with respect to suppliers is somewhat

puzzling because the effect of this ruling is to

complicate matters for suppliers who apparently would

have to become knowledgeable about the economic

sector in which their customers operate and provide

separate labels for customers in the manufacturing

sector. Pennsylvania's labeling requirements include

everything that the OSHA standard mandates, and so

far as the summary judgment record discloses. it is

possible to include both the OSHA information and the

additional Pennsylvania information on the same label.

Moreover, as we point out in the discussion of the

hazardous substance survey, the Pennsylvania Act

addresses broader concerns than workplace safety.

The presence of the required labels on all

hazardous-substances containers will facilitate

employer compliance with their general hazardous

substance survey obligations. see id. § 7303(e). and

—

A-19

employer compliance with the more specific

environmental hazard survey obligations respecting

substances emitted. discharged. or disposed from the

workplace, see id. § 7303(g). Thus it cannot be said

that the primary purpose of the supplier's labeling

requirement. even with respect to manufacturing

sector customers. is hazard communication to

employees.

The district court, relying on section 7318(d).

construed the supplier labeling requirement to be

applicable only when empioyees are involved. Section

7318(d) exempts employers, for any period of time

during which they have no_ present employees, from

certain requirements of the Act.’ The sections from

which such employers are exempted deal primarily

with employers’ obligations to communicate

information to their own employees. We do not read it.

as apparently the district court did, to provide an

exemption for suppliers selling to customers without

employees. The supplier is obliged to label containers

of any chemical delivered or produced in Pennsylvania.

Id. 8 7304(a). Obviously delivery to a consumer other

than employers is covered. Such a construction of the

Act is consistent with its public safety and

environmental purposes. In Hughey we held that

“(tlhe Hazard Communication Standard does not

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

requires containers of environmental hazardous

7. Section 7318(d) provides:

Employers without employees. —

An employer shall not be required to comply with the

requirements of sections [7303(e)). [7305(e)]. [7306/a)(1)

through (5)}. [7306(b) through (g)|. [7307] and [7308] for any

period of time during which the employer does not have any

present employees.

Id. 8 7318(d).

A-20

substances to be labeled.” 774 F.2d at 596. That

holding, dealing with the New Jersey Act. controls on

the issue of express preemption to the extent that an

obligation is imposed by the Pennsylvania Act on

suppliers to include label information in addition to

that required by the federal Hazard Communication

Standard. In Hughey we also addressed the question of

implied preemption. The New Jersey labeling

requirement imposed on employers an obligation not

only to label containers and preserve labels, but also to

label pipelines. Affidavits in the Hughey summary

judgment record raised material issues of disputed fact

as to whether the New Jersey requirement for

environmental labeling by employers in the

manufacturing sector would lead to confusion of

.workers, and thereby obstruct the purposes of the

federal standard. See 774 F.2d 596. The record in this

case is different, at least with respect to suppliers.

Section 7304(a) does not deal with pipeline labeling.

There is no suggestion that suppliers compliance with

Pennsylvania's labeling requirements would confuse

manufacturing-sector employees. Thus we hoid that

section 7304(a) is not impliedly preempted by the

federal Hazardous Communication Standard. even

with respect to containers supplied to manufac-

turing-sector employers.

Section 7306, to which section 7304(a)

cross-references, specifies the content of the labels. To

the extent that section 7306 is thus incorporated in

section 7304(a). it binds suppliers. Section 7306

imposes separate obligations, however, on employers.

both with respect to containers, see Pa. Stat. Ann. tit.

35, § 7306(a), and with respect to pipelines, see id.

§ 7306(c). Like the New Jersey Right-to-Know Act.

these employer obligations arguably have a dual

purpose of hazard communication to employees and

hazard communication to firefighters. police officers,

A-21

and members of the community at large. The

exemption in section 7318(d) of the Pennsylvania Act

from compliance with most of section 7306 for

employers not having any present employees. suggests

that hazard communication to employees is the chief

purpose of the employers’ obligations. Moreover

section 7318(d) exempts employers. who do not have

employees. from the workplace notice requirement in

section 7307, which we have held to be expressly

preempted by the federal Hazard Communication

Standard in the manufacturing sector. Consistent

with that holding, we hold that the provisions in

section 7306 obliging employers to label containers

and pipelines with display labels are preempted for the

manufacturing sector."

Material Safety Data Sheets Provisions

Subsection 7304(b) of the Act obliges all suppliers

of hazardous substances in Pennsylvania to provide

MSDS to all purchasers of such substance with the

initial shipment. Jd. § 7304(b)(1). Employers are also

obliged to obtain and maintain MSDS from suppliers.

Id. § 7304(b)(3). The MSDS must contain the

information specified in subsection 7304(c) which is

8. That holding does not apply to subsection 7306(a)(6) which

provides:

The employer shall ensure that each container of hazardous

substance. hazardous mixtures or chemicals leaving the

workplace is labeled. tagged or marked with the appropriate

information required in paragraphs (1).(2).(3), or (4) lof

section 7306(a)].”

The exemption in section 7318(d) does not apply to subsection

7306(a)(6). Thus all manufacturers, even those without employees,

must comply with the labeling requirements when they act as

suppliers.

A-22

more inclusive than the Material Safety Data Sheets

required under the federal Hazard Communication

Standard. The subsection is qualified, however. by the

provision that “[nlotwithstanding the above, any

MSDS which contains the information requested in

paragraphs (1) and (2). and which otherwise contains

the information required by 29 C.F.R. § 1900.1200(g)(2)

{sic -- § 1910.1200(g)(2) intended], as of November 25.

1983, shall be considered to have met the requirements

of this section.” Pa. Stat. Ann. tit. 35, § 7304(c). The

reference here is to the provision in the federal Hazard

Communication Standard requiring suppliers of

chemicals to develop material safety data sheets for

each hazardous chemical they supply. Thus

compliance with the federal requirement for a material

safety data sheet satisfies the Pennsylvania Act, if it

also contains:

(1) The chemical name, the Chemical Abstract

Service number, the trade name, common

names and any other names under which

said substance is regulated by another State

or Federal agency.

(2) The chemical name, common name and

Chemical Abstract Service number of every

chemical contained in the substance which

comprises 3% or more of the substance

except that hazardous substances shall be

listed if they comprise 1% or more of the

substance, and all special hazardous

substance which comprise 0.01% or more of

the substance shall be listed.

Id. The federal Hazard Communication Standard

already requires the disclosure of chemical and

common names. See 29 C.F.R. 8 1910.1200(g)(2)(i)(B).

(C)(l), and (C)(2). Thus the only substantive difference

between the Pennsylvania and federal requirements

A-23

appears to be Pennsylvania's requirement that

chemical abstract service numbers be included.

The district court, apparently relying on the fact

that separate hazardous substance and environmental

hazards lists are required by section 7303(d), defined

workplace hazards as substances found on a

department hazardous substance list but not on the

environmental hazards list. 623 F. Supp. at 1074 n.7.

The court held that MSDS must be supplied, even to

manufacturing sector purchasers, if they included

information on environmental hazards, but not if the

substances in question would present only workplace

hazards. Thus interpreted, the court held that the

requirement that MSDS be_ supplied to

manufacturing-sector purchasers was expressly

preempted by the OSH Act. 623 F. Supp. at 1074.

Consequently, as in the case of labeling requirements.

the court's holding requires suppliers to prepare

several different kinds of MSDS, depending on whether

the substance is both a workplace and an

environmental hazard and whether the customer is an

employer in the manufacturing sector. The district

court's holding with respect to MSDS, insofar as it

applies to the obligation of suppliers to develop and

supply such sheets, suffers from the same defects as

does the holding with respect to labeling. The MSDS

serve purposes other than hazard communication to

workers. They can facilitate the preparation of

hazardous substance surveys, which will be useful to

public safety officials, and environmental hazard

surveys, which will be useful to agencies concerned

with emissions and discharges. Since we cannot say

that the preparation of and distribution of MSDS has

as its primary purpose the communication of hazards

to employees, that requirement is not expressly

preempted by the OSH Act, even in the manufacturing

sector. As to implied preemption, any danger that the

A-24

Pennsylvania Act makes compliance with the federal

act impossible or that the Pennsylvania Act would serve

as an obstacle to the accomplishment of the OSH Act's

objectives is obviated by the provision in section

7304(e) making compliance with the federal Hazard

Communication Standard requirement and the

Pennsylvania requirement virtually coextensive. There

is no suggestion in the record that the addition of

chemical abstract service numbers would confuse

employees in the manufacturing sector. Thus we hold

that all suppliers covered by the Act must furnish

MSDS required by section 7304, even to customers in

the manufacturing sector. Moreover, since those

sheets serve purposes other than hazard

communication, the obligation of employers to obtain

and maintain such sheets, see id. § 7304(b)(3), is not

preempted. Likewise the provision in section 7303(f),

requiring employers to make copies of MSDS available

to local police, fire, or emergency response agencies is

not preempted. The requirements in section 7303(j)

that the Department retain at least one MSDS for each

hazardous substance, and the requirement in section

7305(a) that the Department make MSDS available to

local public safety agencies, are also not preempted.

Employers’ obligations with respect to MSDS

present different considerations. Subsection 7305(c),

(d) and (e), and subsection 7307(b) deal with hazard

communication to employees of the contents of MSDS

and of Hazard Safety Factor Sheets prepared by the

Department. These communication provisions fall

directly within the subject matter of the federal Hazard

Communication Standard, and under Hughey they

must be held to be expressly preempted in the

manufacturing sector. The provisions appear to have

no other purpose than the promotion of occupational

health and safety through hazard communication. To

the extent that workers in that sector are also

on hia all

A-25

interested in environmental and public health and

safety issues outside the workplace, that interest is

recognized elsewhere in the Pennsylvania Act by the

provision for public access to MSDS or Hazardous

Substance Fact Sheets. See id. § 7305(g).

Employer Educational Programs

The district court held that section 7308, which

requires employers to provide an education and

training program, was preempted in_ the

manufacturing sector by the virtually identical

requirement in the federal Hazard Communication

Standard. See 623 F.2d at 1074. See also 29 C.F.R.

§ 1910.1200(h)(2). We agree that this requirement is

preempted insofar as it requires employers in the

manufacturing sector to conduct educational

programs with respect to workplace hazards. It is not

clear, however, that the Pennsylvania Act requires

educational programs with respect to environmental as -

distinguished from workplace hazards. If the

Pennsylvania authorities so construe the Act, the

provision that employees be educated as to

environmental hazards would not be preempted.

Department Outreach Program

Section 7310 requires the department to develop

outreach programs to inform employees and the public

of their rights under the Act and to educate employers,

employees. and the public about hazardous

substances. The district court held that this section

was preempted only to the extent that it applies to the

disclosure of workplace hazards to employees in the

manufacturing sector. We agree that section 7310 is

preempted by the OSH Act in the manufacturing sector

A-26

to this extent only because the purpose of such an

outreach program is hazard communication.

II.

Constitutional Issues

One group of plaintiffs, who filed the

Manufacturers Association of Tri-County complaint,

urges that while the preemption issues are strictly

legal, and resolvable on cross-motions for summary .

judgment, the counts in their complaint alleging an

unconstitutional burden on interstate commerce and

an unlawful taking of property without just

compensation raise factual issues which are not

resolvable as a matter of law. Thus, they urge, the

district court should not have granted summary

judgment on those counts.

This contention was not made to the district court,

and the parties in that court proceeded on the

assumption that the motion for summary judgment

applied to the entire complaint. Thus the question

before us is not whether these plaintiffs were deprived,

procedurally, of the opportunity to make a factual

record, but whether given the allegations in their

complaint and the supporting affidavits on which they

rely, they have stated a claim upon which relief could,

as a matter of law, be granted. The plaintiffs raise two

constitutional challenges: a fifth amendment taking

challenge and an article I commerce clause challenge.

The district court addressed both challenges.

Noting that in Hughey, 774 F.2d at 598, this court

upheld the virtually identical provisions of the New

Jersey Right-to-Know Act, the court held that the

Pennsylvania Act did not constitute a taking. See 623

F. Supp. at 1076. On this issue Hughey controls. The

complaint fails to state a claim under the fifth

amendment taking clause. As to the Commerce Clause,

et“ SSCS

A-27

the district court applied the criteria for determining

dormant commerce clause challenges announced in

Pike v. Bruce Church, Inc.:

Where the statute regulates evenhandedly to

effectuate a legitimate local public interest, and

its effects on interstate commerce are only

incidental, it will be upheld unless the burden on

such commerce is clearly excessive in relation to

the putative local benefits.

397 U.S. 137, 142 (1970). The compiaint does not

allege discrimination against interstate commerce and

the affidavits the plaintiffs filed in support of their

commerce clause challenge fail to identify any burdens

on interstate commerce that would be excess in

relation to the local health, safety. and environmental

interests served by the Pennsylvania Act. Thus we

agree with the district court that both the

constitutional challenges are deficient as a matter of

law.

Conclusion

The judgment of the district court will be affirmed

insofar as it upholds the Act outside the

manufacturing sector. It will be affirmed in part and

reversed in part insofar as it holds that the Act is

preempted in the manufacturing sector, and the case

will be remanded for the entry of a judgment consistent

with this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 86-5032 and 86-5066

Manufacturers Association of Tri-County, et. al.

vs.

James W. Knepper, Jr., et. al.

Pennsylvania American Federation of Labor, et. al.,

Intervenors—Appellants

Pursuant to Rule 41(b) of the Federal Rules of

Appellate Procedure, it isO R DERE D that issuance of the

certified judgment in lieu of formal mandate in the above

cause be, and it is hereby stayed until December 11, 1986.

Circuit Judge

Dated: November 24, 1986

APPENDIX B

C-1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MANUFACTURERS ASSOCIATION OF

TRI COUNTY, et al.,

Plaintiffs

vs.

JAMES KNEPPER, JR., et al.,

Defendants

and

PENNSYLVANIA AMERICAN FEDERATION

OF LABOR - CONGRESS OF

INDUSTRIAL ORGANIZATIONS, et al.,

Intervenors

CIVIL ACTION NO. 85-1027

PENNSYLVANIA FOUNDRYMEN’S

ASSOCIATION, et al.,

Plaintiffs

vs.

JAMES W. KNEPPER, JR., et al.,

Defendants

and

PENNSYLVANIA AMERICAN FEDERATION

OF LABOR - CONGRESS OF

INDUSTRIAL ORGANIZATIONS, et al.,

Intervenors

C-2

MEMORANDUM

I. Introduction.

Plaintiffs, defendants and intervenors have filed cross

motions for summary judgment. Plaintiffs are certain

manufacturers, manufacturing associations and non-

manufacturers doing business in Pennsylvania. Defendants

are James W. Knepper, Jr., Secretary of the Department of

Labor and Industry, Herbert Thieme, Deputy Secretary for

Administration of the Department of Labor and Industry,

the Pennsylvania Department of Labor and Industry, and

the Commonwealth of Pennsylvania. Intervenors are the

Pennsylvania American Federation of Labor-Congress of

Industrial Organizations (“AFL-CIO”). The International

Union (also known as United Auto Workers) has also filed

an amicus curiae brief. This consolidated action’ arises from

the enactment of the Pennsylvania Worker and Community

Right to Know Act, P.L. 734 No. 159, 35 P'S. §7301.1 et seq.

(“Right to Know Act’’) which establishes a statewide pro-

gram for communicating information concerning hazard-

ous substance to employees and the general public.

Plaintiff's primary contention is that, based upon the recznt

decision of New Jersey State Chamber of Commerce v.

Hughey, Nos. 85-5087, 85-5088 and 85-5095 (3d Cir. October

10, 1985), the Right to Know Act is preempted by §18 of the

Occupational Health and Safety Act (“OSH Act”)(29 U.S.C.

§667), and the Hazard Communication Standard (“The

Standard’’) (29 C.F.R. §1910.1200) as it applies, (1) to

employers who are included within the Standard Industrial

Classification (“SIC”) Codes 20-39 and (2) as it applies to

employers outside SIC Codes 20-392 In accordance with

1. Upon motion of the parties, Civil Action No. 85-1028 was consoli-

dated into Civil Action No. 85-1027.

2. The Standard consists of regulations adopted by OSHA pursuant

to the OSH Act. SIC Codes 20-39 consist primarily of categories of

C-3

Hughey defendants and intervenors acknowledge that cer-

tain provisions of the Right to Know Act are preempted, but

nevertheless maintain that the remainder of the Right to

Know Act should be enforced, and that the preempted sec-

tions of the Act can be severed. In addition to their preemp-

tion argument plaintiffs also assert that the Right to Know

Act imposes an excessive burden on interstate commerce in

violation of the Commerce Clause of the Federal Constitu-

tion and deprives plaintiffs of their property rights in trade

secrets and confidential information without just

compensation.

For the reasons set forth below, we conclude that the

Right to Know Act is entirely preempted by federal law to

the extent it requires employers in the manufacturing sec-

tor to identify and disclose information concerning work-

place hazards. The Right to Know Act is not preempted as

it applies to employers in the non-manufacturing sector, nor

as it requires all employers to disclose information relating

to environmental hazards, except for the labeling require-

ment in the manufacturing sector. We also conclude that the

Right to Know Act does not violate the Commerce Clause

or constitute a taking without just compensation.

II. Background.

A. The Pennsylvania Worker and Community Right to

Know Act.

On October 5, 1984 the Governor of Pennsylvania

signed the Right to Know Act into law, to become effec-

tive on October 5, 19853 The purpose of the Act inter

manufacturers as set forth in the Standard Industrial Classification Man-

ual published by the U.S. Office of Management and Budget. For purposes

of this Memorandum we will refer to SIC Codes 20-39 as the manufac-

turing sector.

3. On August 28, 1985 we stayed the implementation and enforcement

of the Act until December 4, 1985. On December 3, 1985 we again stayed

enforcement of the Act until this decision is rendered.

C-4

alia is “to ensure that employees, their families and the

general public be given current information concern-

ing the nature of the hazardous substances with which

they may come in contact and full information concern-

ing the health hazards of these hazardous substances.”

35 P.S. $7301 (Preamble to the Act). It establishes a com-

prehensive statutory scheme for (1) identifying and (2)

communicating to employees, emergency response

agencies, health care professionals, and the general pub-

lic information concerning hazardous chemicals

employed in the workplace. These objectives are accom-

plished primarily through the following procedures.

Within 180 days of the effective date of the Right

to Know Act (October 5, 1985) the Pennsylvania Depart-

ment of Labor and Industry is required to compile a list

of hazardous substances and designate those substances

which are considered to be “special” or “environmen-

tal” hazards. 35 PS. §7303. Every employer is required

to complete a hazardous substance survey form

(“HSSF”) for each workplace, listing the designated haz-

ardous substances which were present during the past

year. 35 P.S. §7303 (e). This form must be retained on

file at the workplace and updated every two years. Id.

The employer is also required, upon the written request

of any person, to complete an environmental hazard sur-

vey (“EHS”) for the workplace which discloses “those

[designated] substances emitted, discharged or disposed

of from the workplace.” 35 PS. §3703 (g).

The primary burden of disclosing hazardous sub-

_ stances falls upon manufacturers and suppliers of chem-

icals. The Right to Know Act provides that “every

supplier, as a condition of doing business in this Com-

monwealth, shall ensure that the container of any chem-

ical which is delivered to a point within this

Commonwealth or which is produced within this Com-

monweaith is clearly labeled in the manner required

by section 6.” 35 P.S. §7304 (a) (footnote omitted). Sec-

tion 6, in turn specifies the information that must be

C-5

disclosed. 35 P.S. §7306 (a). The Right to Know Act fur-

ther provides that within two (2) years all containers,

used by entities covered by the Act, regardless of

whether they contain hazardous substances, must be

labeled. 35 P.S. §7306 (a) (4). In addition, employers are

required to place labels at or near all pipeline ports. 35

P.S. 7306 (c). |

Similarly, manufacturers, importers and suppliers

must prepare a material safety data sheet (“MSDS”) for

each designated “hazardous substance or hazardous

mixture they produce or import, and shall ensure that

all purchasers of hazardous substances or hazardous

mixtures are provided with an appropriate MSDS... .”

35 PS. §7304 (b). The Department of Labor and Indus-

try must also be supplied with a copy of each MSDS. The

MSDS must incorporate certain information, including

the chemical name, its physical characteristics, and its

health hazards. Id.

The Right to Know Act also permits employers,

manufacturers, etc., to withhold the identity of a chem-

ical substance as a trade secret. 35 P.S. §7311. This pro-

tection is not absolute and the claimant must satisfy

the criteria in §7311 (a). In no case is the claimant per-

mitted to withhold a chemical’s identity from a treat-

ing physician or nurse. The claimant may, however,

require the physician or nurse to sign a confidentiality

agreement. 35 P.S. §7311 (b).

Finally, employers are obligated to disclose the

information required by the Right to Know Act to (1)

employees and (2)the community. Employers must post

in the workplace a listing of all designated hazardous

substances present and make available in the work area

a MSDS for each hazardous substance to which the

employees may be exposed. 35 PS. §7307. Employers are

also required to provide, at least annually, educational

and training programs for employees exposed to hazard-

ous substances. 35 P.S. §7308. With respect to public dis-

closure, employers must make available to the

C-6

community, including local police, fire and emergency

response personnel, copies of HSSF’s, EHS’s and

MSDS’s upon demand. 35 PS. §7305.

B. The Hazard Communication Standard.

In 1970 Congress enacted the Occupational Safety and

Health Act (OSH Act), 29 U.S.C. §§651 et seq. ‘“‘to assure so

far as possible every working man and woman in the Nation

safe and healthful working conditions.’ 29 U.S.C. §651 (b).

Pursuant to §655 of the OSH Act, the Secretary of Labor was

given the authority to promulgate standards to implement

its purposes, and on November 23, 1983, the Occupational

Safety and Health Agency (“OSHA”) published the final

Hazard Communication Standard. The stated purpose of the

Standard is to “insure that the hazards of all chemicals

produced or imported by chemical manufacturers or

importers are evaluated, and that information concerning

their hazards is transmitted to affected employees within

the manufacturing sector.’ 29 C.F.R. §1910.1200 (a) (1). By

its terms it is applicable to all employers in SIC Codes

20 - 39.

The Standard is practically duplicative of the Right

to Know Act and likewise can be broken down in two parts.

First, chemical manufacturers and importers must assess

the hazards of chemicals which they produce or import. Sec-

ond employers must communicate the hazards to their

employees by means of a hazardous communication program

which “includes at least the mandated container labeling,

material safety data sheets (““MSDS’’), and an employee

training program.” 48 Fed. Reg. 53,336.

The MSDS is the principle instrumentality for trans-

mitting hazard information. 48. Fed. Reg. 53,305. Chemi-

cal manufacturers and importers must develop a MSDS for

each substance they identify as hazardous which iicludes

the name(s) of the chemical, its physical and chemical

characteristics and its health and safety characteristics.

29 C.F.R. §1910.1200 (g). The MSDS’s must also be readily

C-7

available to employees. In addition, manufacturers,

importers, and distributors must ensure that each container

of hazardous chemicals leaving the workplace is appropri-

ately labeled and all employers must ensure that containers

utilized in the workplace are labeled. 29 C.F.R. §1910.1200

(f). The hazard communication program must also include

an employee training program designed to provide

employees with the skills necessary to detect hazardous con-

ditions and to take appropriate protective measures.

29 C.F.R. §1910.1200 (h) (2).

Finally, the Standard provides for trade secret protec-

tion. 29 C.F.R. §1910.1200(1). The employer may withhold

the identity of a chemical substance if it satisfies the require-

ments contained in 29 C.F.R. §1910.1200 (i) (1). Notwith-

standing this provision, employers must reveal the identity

of a substance to a treating physician or nurse if they deter-

mine that a medical emergency exists. 29 C.F.R. §1910.1200

(i) (2). Under certain circumstances, the employer may

require a written statement of need and confidentiality

agreement. Id.

III. Discussion.

A. Application to Employers covered by the SIC Codes

20 - 39.

The United States Supreme Court recently set forth

the standards for determining preemption of state law in

Hillsborough County v. Automated Medical Laboratories,

TEN ces Wot ' , 85 L.Ed.2d 714, 721, 105 SCt.

2371, 2375 (1985) as follows:

[3] Itis a familiar and well-established principle that

the Supremacy Clause, US Const, Art VI, cl 2,

invalidates state laws that “interfere with, or are

contrary to” federal law. Gibbons v Ogden, 9 Wheat

1, 211,6 L Ed 23 (1824) (Marshall, C. J.). Under the

C-8

Supremacy Clause, federal law may supersede state

law in several different ways. First, when acting

within constitutional limits, Congress is empow-

ered to pre-empt state law by so stating in express

terms. Jones v Rath Packing Co., 430 US 519, 525,

51 L Ed 2d 604, 97 S Ct 1305 (1977). In the absence

of express pre-emptive language, Congress’ intent

to preempt all state law in a particular area may

be inferred where the scheme of federal regulation

is sufficiently comprehensive to make reasonable

the inference that Congress “left no room” for sup-

plementary state regulation. Rice v Santa Fe Ele-

vator Corp., 331 US 218, 230 91 L Ed 1447,67SCt

1146 (1947). Pre-emption of a whole field also will

be inferred where the field is one in which “the fed-

- eral interest is so dominant that the federal system

will be assumed to preclude enforcement of state

laws on the same subject.” Ibid.; see Hines v.

Davidowitz, 312 US 52, 85 L Ed 581, 61 S Ct 399

(1941).

[4] Even where Congress has not completely displaced

state regulation in a specific area, state law is nul-

lified to the extent that it actually conflicts with

federal law. Such a conflict arises when “compli-

ance with both federal and state regulations is a

physical impossibility,’ Florida Lime & Avocado

Growers, Inc. v. Paul, 373 US 132, 142 - 143, 10 L

Ed 2d 248, 83 S Ct 1210 (1963), or when state law

“stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of Con-

gress,’ Hines v. Davidowitz, supra, at 67, 85 L Ed

581, 61 S Ct 399. See generally Capital Cities

Cable, | uc. v. Crisp, 467 US : , 81 L Ed 2d

580, 104 S Ct 2694 (1984).

In addition, state laws can be preempted by federal regula-

tions as well as by federal statutes. Id. at , 85 L.Ed.2d

at 721, 105 S.Ct. at 2375; Capital Cities Cable, Inc. v. Crisp,

C-9

467 U.S. __., 81 L.Ed.2d 580, 104 S.Ct. 2694 (1984).

In the present case, Congress has expressly provided

for the preemption of state laws in §18 of the OSH Act which

provides in pertinent part:

(a) Assertion of State standards in absence of applica-

ble Federal standards 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 stan-

dard is in effect under section 655 of this title’

OSHA has also expressed its intent to preempt state law in

this area. The OSHA Standard states it “is intended to

address comprehensively the issue of evaluating and com-

municating chemical hazards to employees in the manufac-

turing sector, and to preempt any state law pertaining to this

subject.” 29 C.F.R. 1910.1200 (a) (2) (emphasis added).

In New Jersey State Chamber of Commerce v. Hughey,

supra, the Third Circuit recently examined the New Jersey

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

34:5A-1, et seq., (“New Jersey Right to Know Act’’), a stat-

ute whose purpose and framework is substantially identi-

cal to the Pennsylvania Right to Know Act. In Hughey the

plaintiff contended that the entire statute was expressly

preempted by section 18 of the federal OSH Act. The court

rejected plaintiff's contention on the grounds that section

18 was intended to preempt only state laws which sought

to regulate employee health and safety. Hughey, slip op. at

13 -14. Instead, applying the principles of implied preemp-

4. Subsection (b) provides, however, that:

Any State which, at any time, desires to assume responsibility

for development and enforcement therein of occupational safety

and health standards relating to any occupational safety or health

issue with respect 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 (b).

Pennsylvania has not submitted such a plan.

C-10

tion, the court reviewed each section of the New Jersey Right

to Know Act to determine whether ‘‘Congress would have

intended to preempt such a provision.” Hughey, slip op. at

15. More importantly for our purposes, the court developed

the following standards for determining preemption:

A section shouid be held to be preempted, therefore,

only to the extent that: 1) it is expressly preempted

because is regulates communication of hazards to

employees in the manufacturing sector; 2) it is

impossible to comply both with state law and with

federal law; or 3) the provision serves as an obsta-

cle to the accomplishment of Congress’ object in the

OSH Act to promote safe and healthful working

conditions.

Id. at 15.

With these principles in mind, we will examine each dis-

puted section of the Pennsylvania Right to Know Act5

5. The following sections presented no question of preemption:

7301

7302

7303 (a)

7303 (b)

7303 (c)

7303 (d)

7303 (i)

7309

7311

7312

7313

7314

7315

7316

7317

7318

7319

7320

Short Title

Definitions

Hazardous Substance List

Additions to hazardous substance list

Deletions from hazardous substance list

Special hazards and environmental hazards

Authority to modify filing requirements

Health and Exposure Records

Trade Secrets

Risk to public health

Protection of employees

Complaints and investigations

Judicial review and enforcement

False statements and intentional omissions

Rules and regulations

Special applications

Construction of act

Severability

C-11

1) The Hazardous Substance Survey Form.

Section 7303 (e) requires employers to complete a haz-

ardous substance survey form for each workplace. Both

plaintiff and defendant agree that this provision is

preempted because Section 7303 (e) is substantially iden-

tical to section 34:5A-5 of the New Jersey law which the

Hughey court found to be preempted in the manufacturing

sector. Both statutes contemplate the creation of several haz-

ardous substances lists, including one which identifies only

environmental hazards. As the court in Hughey stated:

any hazardous substance listed as a workplace haz-

ard pursuant to section 34:5A-5 (a), and not listed

as an environmental hazard pursuant to section

34:5A-4 (a) is deemed to be one posing a specific

threat to workers. It appears therefore that the pri-

mary purpose of section 34:5A-7 (a) is the promo-

tion of occupational health and safety through

hazard communication. The federal Hazard Com-

munication Standard expressly preempts section

34:5A-7 (a) in the manufacturing sector.

Hughey, slip. op. at 18 - 19.

The only difference between the two state statutes is that

the Pennsylvania Right to Know Act does not provide spe-

cifically for a workplace hazardous substance list. Inter-

venors, however, contend that section 7303 (e) is not

preempted because the Pennsylvania definition of a hazard-

ous substance is different from tlie New Jersey definition.

Intervenors contend that the New Jersey statute, as demon-

strated by its definition of a workplace hazard, was intended

to protect primarily the employee while the Pennsylvania

Act intended to protect both the employee and the public.

This contention is belied by the fact that New Jersey defi-

nition of a workplace hazard includes “any environmental

hazardous substance” 34:5A-5 (a). By including environmen-

tal hazards in its definition of a workplace hazard, it appears

C-12

that the New Jersey Right to Know Act does not have the

single minded purpose which intervenors assert. Thus sec-

tion 7303 (e) is preempted in the manufacturing sector. Since

7303 (e) is preempted sections 7303 (f), (i) and (j), sections

7305 (a), (c) and (g), and sections 7307 (a) and (b) are also

preempted to the extent they pertain to the hazardous sub-

stance survey forms.

2) Environmental Hazard Survey.

Section 7303 (g) also requires employers to complete

environmental hazard surveys for each workplace. In

Hughey, the court held that the New Jersey environmental

hazard survey, section 34:5A-7 (a), was not preempted

because the reporting of environmental hazards was not a

concern of the OSHA Standards. Hughey, slip. op. at 18.

Plaintiffs, however, assert that the Pennsylvania environ-

mental hazard survey is preempted because section 7303 (g)

was intended to regulate occupational health and safety.

This argument is based on the fact that the environmental

aspects of the New Jersey law are administered by the New

Jersey Department of Environmental Protection, while the

environmental aspects of the Pennsylvania statute are

administered by the Department of Labor and Industry. In

support of their position, plaintiffs rely upon the following

language from Hughey:

Section 34:5A-7 (b) is not preempted, since it

requires reporting of environmental hazards to

agencies concerned with public health and safety,

a matter not governed by OSHA Standards.

Hughey, slip. op. at 18.

In essence, plaintiffs argue that it is the designation of the

state agency which is to administer the law that is control-

ling. Interpretating this language, we conclude, however,

that it is the purpose of the statute which is critical, not the

agency selected to implement the law. Clearly section 7303

C-13

(g) is concerned with the protection of the public and is not

an attempt to regulate employee safety.

Plaintiffs further argue that the legislative intent to

regulate employee safety is demonstrated by section 7303

(h) which provides in pertinent part:

(h) Onsite testing—Upon the request to the depart-

ment, and for the good cause shown and upon con-

sultation with the interested parties involved, the

department may conduct at its expense onsite test-

ing or use such other methods as will provide more

exact information concerning the environmental

hazards reported in the environmental hazards sur-

vey under subsection (g). ... The department

shall not conduct onsite testing which has already

been conducted by OSHA.

Plaintiffs contend that the last sentence of this section would

have no meaning unless the legislature intended that the

environmental hazards reported in the survey would be sub-

stances regulated and monitored by OSHA. Contrary to

plaintiffs’ contention, we find that section 7303 (h) only

attempts to prevent duplicative onsite testing and does not

have the far reaching implication suggested by plaintiffs.

Section 7303 (g) is therefore not preempted. Likewise sec-

tion 7303 (h) is not preempted.

3) Labeling.

Pursuant to section 7304 (a) suppliers of chemicals

must ensure that every container is labeled in accordance

with section 7306 which, in turn, provides the specific label-

ing requirements. In Hughey, the court held the New Jer-

sey labeling provision 34:5A-14, which provided for the label-

ing of both workplace and environmental hazards, was

preempted “to the extent they require labeling of workplace

hazards in the manufacturing sector.” Hughey, slip op. at 20.

With respect to environmental hazards, the court remanded

this issue to the district court to determine whether section

C-14

34:5A-14 was an obstacle to the accomplishment of the pur-

poses of the OSH Act. Id. at 20-21. In accordance with

Hughey, sections 7304 (a) and 7306 are apparently

preempted in the manufacturing sector as they pertain to

the labeling of workplace hazards. Defendants acknowledge

that certain portions of sections 7304 (a) and 7306 are

preempted, but maintain preemption is to be determined

by the customer of the employer® For example, if an employer

sells to a manufacturer then a label is not required, but if

an employer sells to a non-manufacturer, then a label is

required. Defendants draw this distinction on the basis that

the labeling requirement is only preempted where its pur-

pose is to regulate disclosure of hazard information to

manufacturing employers. As defendants point out, sections

7304 (a) and 7306 require that hazard information must be

transmitted to both the manufacturing sector and the non-

manufacturing sector, by the labeling of containers. The

court in Hughey held that a section is preempted only “‘to

the extent that it is expressly preempted because it regu-

lates communication of hazards to employees in the

manufacturing sector” Hughey, slip op. at 15. Applying this

rationale, we conclude that sections 7304 (a) and 7306 are

not preempted to the extent they require the labeling of con-

tainers destined for non-manufacturing employers. Our con-

clusion is not inconsistent with the Hughey decision because

the labeling provision of New Jersey statute requirements

did not provide for the disclosure of hazard information

beyond the manufacturing sector.

The remaining issue is whether the labeling of

environmental hazards is also preempted in the manufac-

6. _Intervenors argue that the labeling requirements are not preempted

because they are not primarily tied to the concerns of employees in the

manufacturing sector. This argument overlooks the fact the OSHA has

promulgated standards covering labeling of workplace hazards. We do

not believe that our conclusion is changed because the labeling require-

ment serves other purposes. Additionally, this argument was implictly

rejected by the Hughey court when it held that the workplace survey was

entirely preempted.

C-15

turing sector. Plaintiffs, relying upon section 7318, argue

that the labeling of environmental hazards is primarily

intended to protect the emplovee. Section 7318 provides:

(d) Employers without e:nployees——An employer

shall not be required to comply with the require-

ment of sections 3 (e), 5 (e), 6 (a) (1) through (5), 6

(b) through (g), 7 and 8 for any period of time dur-

ing which the employer does not have any present

employees. (footnote omitted)

It is clear under this language that employers who do not

have any employees are not required to abide by most of the

labeling requirements. Since labeling is required only when

employees are involved, this exception indicates that the pri-

mary purpose of the labeling requirement was to protect

employees. Therefore we agree with plaintiffs’ interpreta-

tion and conclude that sections 7304 (a) and 7306 are

preempted in the manufacturing sector to the extent they

require manufacturing employers to label containers, and

to the extent they require suppliers to label containers to

be shipped to manufacturing employers.

4) The Material Safety Data Sheets

In accordance with section 7304 (b) manufacturers,

importers, and suppliers must ensure that material safety

data sheets accompany each initial shipment. The MSDS

must also be provided for each container delivered to a point

within the state of Pennsylvania. Unlike the previous pro-

visions section 7304 (b) has no counterpart in the New Jer-

sey statute. As was the case with labeling, the federal Hazard

Communication Standard already provides for the develop-

ment of MSDS’s. 29 C.E-R. §1910.1200(g). Therefore, sections

7304 (b) (c) (d) (e) (f) and (g) are expressly preempted only to

the extent they require manufacturers, importers, and sup-

pliers to provide a MSDS for each container to be delivered

to an employer in the manufacturing sector which contains

C-16

a workplace hazard’ As a result sections 7304 (b) (3) and (4)

are also preempted to the same extent. However, with respect

to environmental hazards, these sections are not preempted.

There is no indication that the regulation of environmen-

tal hazards by section 7304 (b) was intended to promote only

employee safety and neither party has argued that requir-

ing MSDS’s for environmental hazards would operate as an

obstacle to the accomplishment of federal objectives. Since

section 7304 (b) is preempted in the manufacturing sector

sections 7303 (f) and (j), 7305 (a) (b) (c) (d) (e) and (g), and 7307

(a) and (b) are also preempted to the extent they pertain to

MSDS’s in the manufacturing sector’

5) Employer Educational Program.

Section 7308 requires employers to provide, at least

annually, an education and training program. Defendants

and intervenors concede that this section is preempted. Addi-

tionally, noting that Section 7308 is substantially identical

to the one provided in the Federal Hazard Communication

Standard, we conclude that section 7308 is preempted. See

29 C.F.R. §1910.1200 (h) (2).

6) Outreach Program.

Section 7310 (a) requires the Department of Labor and

Industry to develop outreach programs to inform employees

and the public about their rights under the Act and about

hazardous substances. We find, however, that section 7310

(a) is preempted only to the extent it applies to the disclosure

of workplace hazards to employees in the manufacturing sec-

7. A workplace hazard is a substance found on the Hazardous Sub-

stance list but not found on the environmental substance list.

8. We recognize an apparent inconsistency in holding that labeling

of environmental hazards is preempted in the manufacturing sector,

whereas the preparation of MSDSs for environmental hazards is not. This

situation results from the fact that Section 7318 (d) is limited to label-

ing. We do not know if this result was intended.

C-17

tor. Similarly, section 7310 (d) is preempted as it pertains

_ to employees in the manufacturing sector.

B. Application to employers not within the SIC Codes

20 - 39.

Because the federal provisions apply only to employers

within the SIC Codes 20-39, the Pennsylvania law is not

preempted as to other employers. See Hughey, slip op. at 18.

Plaintiffs argue, however, that in the event that any preemp-

tion is adjudicated, the Pennsylvania legislature intended

that the entire statute be declared unconstitutional. In sup-

port of this position plaintiffs rely on §19 (d) of the Right to

Know Act which provides:

(d) Review of preemption.—Should Federal Govern-

ment preemption be finally adjudicated and result

in lessening the burden on any employer to meet

the requirements of this act, it is the intent that the

General Assembly reexamine this act so that all

employers hereunder shall be reexamined as to

requirements necessary in meeting the standards

of this act so as to treat all employers fairly and

equitably.

Section 19 (d) states only that the General Assembly

intends to re-examine, and not abandon the Right to Know

Act, if federal preemption is adjudicated. This view finds sup-

port in Section 20 of the Right to Know Act, which specifi-

cally contemplates severability under the circumstances

presented by this case® We conclude that the Right to Know

Act is not preempted as it applies to employers not within

the SIC Codes 20-39.

C. Severability.

We must now look to Section 20 and Pennsylvania law

9. 35 PS. §7320.

C-18

to determine whether the preempted provisions may be

severed from the Right to Know Act or whether the entire

statute must fall. Commonwealth, Department of Education

v. First School, 471 Pa. 471, 370 A.2d 702 (1977). The stan-

dards for determining severability under Pennsylvania law

are set forth in the Statutory Construction Act:

The provisions of every statute shall be severable.

If any provision of any statute or the application

thereof to any person or circumstance is held

invalid, the remainder of the statute, and the appli-

cation of such provision to other persons or circum-

stances, shall not be affected thereby, unless the

court finds that the valid provisions of the statute

are so essentially and inseparably connected with,

and so depend upon, the void provision or applica-

tion, that it cannot be presumed the General

Assembly would have enacted the remaining valid

provisions without the void one; or unless the court

finds that the remaining valid provisions, standing

alone, are incomplete and are incapable of being

executed in accordance with the legislative intent.

1 Pa.C.S. §1925.

Interpreting this section, the Pennsylvania Supreme Court

in Saulsbury v. Bethlehem Steel Co., 413 Pa. 316, 320, 196

A.2d 664, 666 (1964) stated:

“{A] statute or ordinance may be partially valid and

partially invalid, and ... ifthe provisions are dis-

tinct and not so interwoven as to be insepara-

ble ... courts should sustain the valid portions.”

(citations omitted).

There is a strong presumption in favor of severability where

a statute contains a severability clause. Commonwealth,

Department of Education v. First School, supra.

Applying these principles, we find that the entire stat-

ute should not fall because the preempted provisions are not

C-19

“so essentially and inseparably connected” with the non-

preempted provisions. The Right to Know Act, while less

comprehensive, still remains an effective means for regulat-

ing environmental hazards in the manufacturing sector and

for regulating workplace and environmental hazards in the

non-manufacturing sector. We also conclude that legislative

intent will be advanced by severing the preempted provi-

sions. The Act is a broad statute designed to protect the pub-

lic and the employee by reguiating environmental and

workplace hazards. This purpose will not be defeated by the

limited preemption which we have adjudicated.

D. Trade Secret Protection.

Plaintiffs argue that the provisions of the Right to

Know Act relating to trade secrets result in a taking of plain-

tiffs property without due process of law because the Act

does not provide for an adequate remedy against the Com-

monwealth of Pennsylvania. This contention can be disposed

of without much discussion. The court in Hughey found that

the trade secret provisions of the New Jersey Right to Know

Act did not constitute a taking. Hughey, slip op. at 25. The

Pennsylvania and New Jersey trade secret provisions are

similar in nature and we conclude the Pennsylvania Right

to Know Act does not constitute a taking. Since there has

not been a taking of plaintiffs’ property we need not consider

plaintiffs’ argument that the Act does not provide an ade-

quate remedy against the Commonwealth.

E. Violation of the Commerce Clause.

Finally, plaintiffs argue that the Right to Know Act

violates the Commerce Clause because it imposes an undue

burden on interstate commerce. They contend that the Right

to Know Act will substantially increase the cost of goods

nioving in interstate commerce. To the contrary, defendants

and intervenors argue that the impact on interstate com-

merce is merely speculative.

C-20

In Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 25

L.Ed.2d 174, 178, 90 S.Ct. 844, 847 (1970) the Supreme Court

established the following criteria for determining whether

a state statute violates the Commerce Clause:

Where the statute regulates evenhandedly to effec-

tuate a legitimate local public interest, and its

effects on interstate commerce are only incidental,

it will be upheld unless the burden imposed on such

commerce is clearly excessive in relation to the

putative local benefits. Huron Cement Co. v.

Detroit, 362 US 400, 443, 4 L Ed2d 852, 856, 80S

Ct 813, 78 ALR2d 1294.

We should also note that safety regulations are entitled to

“a strong presumption of validity,’ Bibb v. Navajo Freight

Lines, Inc., 359 U.S. 520, 524, 3 L.Ed.2d 1003, 1007, 79 S.Ct.

962, 965 (1959). Kassel v. Consolidated Freightways Corp.,

750 U.S. 662, 67 L.Ed.2d 580, 101 S.Ct. 1309 (1981).

In the instant case, the Right to Know Act operates

evenhandedly and thus the relevant inquiry is whether the

burden on interstate commerce outweighs the local bene-

fit. Plaintiffs have failed to demonstrate that the Right to

Know Act will substantially burden interstate commerce.

While we recognize that implementation of the Act may be

costly and in that sense may burden interstate commerce,

we cannot conclude that the burden outweighs the benefit.

As aresult we find that the Right to Know Act does not vio-

late the Commerce Clause.

An appropriate order will be issued.

William W. Caldwell

United States District Judge

Date: December 12, 1985

§655. Standards

(a) Promulgation by Secretary of national consensus

standards and established Federal standards; time

for promulgation; conflicting standards

Without regard to chapter 5 of Title 5 or to the other sub-

sections of this section, the Secretary shall, as soon as prac-

ticable during the period beginning with the effective date

of this chapter and ending two years after such date, by

rule promulgate as an occupational safety or health stan-

dard any national consensus standard, and any established

Federal standard, unless he determines that the promul-

gation of such a standard would not result in improved safe-

ty or health for specifically designated employees. In the

event of conflict among any such standards, the Secretary

shall promulgate the standard which assures the greatest

protection of the safety or health of the affected employees.

(b) Procedure for promulgation, modification, or

revocation of standards

The Secretary may by rule promulgate, modify, or re-

voke any occupational safety or health standard in the fol-

lowing manner:

(1) Whenever the Secretary, upon the basis of in-

formation submitted to him in writing by an interest-

ed person, a representative of any organization of

employers or employees, a nationally recognized

standards-producing organization, the Secretary of

Health and Human Services, the National Institute

for Occupational Safety and Health, or a State or po-

litical subdivision, or on the basis of information de-

veloped by the Secretary or otherwise available to

him, determines that a rule should be promulgated

in order to serve the objectives of this chapter, the

Secretary may request the recommendations of an ad-

visory committee appointed under section 656 of this

title. The Secretary shall provide such an advisory

committee with any proposals of his own or of the

D-2

Secretary of Health and Human Services, together

with all pertinent factual information developed by

the Secretary or the Secretary of Health and Human

Services, or otherwise available, including the results

of research, demonstrations, and experiments. An ad-

visory committee shall submit to the Secretary its

recommendations regarding the rule to be prom-

ulgated within ninety days from the date of its ap-

pointment or within such longer or shorter period as

may be prescribed by the Secretary, but in no event

for a period which is longer than two hundred and

seventy days.

(2) The Secretary shall publish a proposed rule

promulgating, modifying, or revoking an occupational

safety or health standard in the Federal Register and

shall afford interested persons a period of thirty days

after publication to submit written data or comments.

Where an advisory committee is appointed and the

Secretary determines that a rule should be issued, he

shal] publish the proposed rule within sixty days af-

ter the submission of the advisory committee’s recom-

mendations or the expiration of the period prescribed

by the Secretary for such submission.

(3) On or before the last day of the period provided

for the submission of written data or comments un-

der paragraph (2), any interested person may file with

the Secretary written objections to the proposed rule,

stating the grounds therefor and requesting a public

hearing on such objections. Within thirty days after

the last day for filing such objections, the Secretary

shall publish in the Federal Register a notice specify-

ing the occupational safety or health standard to

which objections have been filed and a hearing re-

quested, and specifying a time and place for such

hearing.

(4) Within sixty days after the expiration of the peri-

od provided for the submission of written data or com-

D-3

ments under paragraph (2), or within sixty days after

the completion of any hearing held under paragraph

(3), the Secretary shall issue a rule promulgating,

modifying, or revoking an occupational safety or

health standard or make a determination that a rule

should not be issued. Such a rule may contain a pro-

vision delaying its effective date for such period (not

in excess of ninety days) as the Secretary determines

may be necessary to insure that affected employers

and employees will be informed of the existence of the

standard and of its terms and that employers affect-

ed are given an opportunity to familiarize themselves

and their employees with the existence of the require-

ments of the standard.

(5) The Secretary, in promulgating standards deal-

ing with toxic materials or harmful physical agents

under this subsection, shall set the standard which

most adequately assures, to the extent feasible, on the

basis of the best available evidence, that no employee

will suffer material impairment of health or function-

al capacity even if such employee has regular ex-

posure to the hazard dealt with by such standard for

the period of his working life. Development of stan-

dards under this subsection shall be based upon

research, demonstrations, experiments, and such

other information as may be appropriate. In addition

to the attainment of the highest degree of health and

safety protection for the employee, other considera-

tions shall be the latest available scientific data in

the field, the feasibility of the standards, and ex-

perience gained under this and other health and safe-

ty laws. Whenever practicable, the standard

promulgated shall be expressed in terms of objective

criteria and of the performance desired.

(6XA) Any employer may apply to the Secretary for

a temporary order granting a variance from a stan-

dard or any provision thereof promulgated under this

section. Such temporary order shall be granted only

D-4

if the employer files an application which meets the

requirements of clause (B) and establishes that (i) he

is unable to comply with a standard by its effective

date because of unavailability of professional or tech-

nical personnel or of materials and equipment need-

ed to come into compliance with the standard or

because necessary construction or alteration of facil-

ities cannot be completed by the effective date, (ii) he

is taking all available steps to safeguard his em-

ployees against the hazards covered by the standard,

and (iii) he has an effective program for coming into

compliance with the standard as quickly as practica-

ble. Any temporary order issued under this paragraph

shall prescribe the practices, means, methods, opera-

tions, and processes which the employer must adopt

and use while the order is in effect and state in de-

tail his program for coming into compliance with the

standard. Such a temporary order may be granted

only after notice to employees and an opportunity for

a hearing: Provided, That the Secretary may issue one

interim order to be effective until a decision is made

on the basis of the hearing. No temporary order may

be in effect for longer than the period needed by the

employer to achieve compliance with the standard or

one year, whichever is shorter, except that such an

order may be renewed not more than twice (I) so long

as the requirements of this paragraph are met and

(II) if an application for renewal is filed at least 90

days prior to the expiration date of the order. No in-

terim renewal of an order may remain in effect for

longer than 180 days.

(B) An application for a temporary order under this

paragraph (6) shall contain:

(i) a specification of the standard or portion

thereof from which the employer seeks a

variance,

(ii) arepresentation by the employer, support-

D-5

ed by representations from qualified persons hav-

ing firsthand knowledge of the facts represented,

that he is unable to comply with the standard

or portion thereof and a detailed statement of the

reasons therefor,

(iii) a statement of the steps he has taken and

will take (with specific dates) to protect em-

ployees against the hazard covered by the

standard,

(iv) a statement of when he expects to be able

to comply with the standard and what steps he

has taken and what steps he will take (with dates

specified) to come into compliance with the stan-

dard, and

(v) acertification that he has informed his em-

ployees of the application by giving a copy thereof

to their authorized representative, posting a

statement giving a summary of the application

and specifying where a copy may be examined

at the place or places where notices to employees

are normally posted, and by other appropriate

means.

A description of how employees have been informed

shall be contained in the certification. The informa-

tion to employees shall also inform them of their right

to petition the Secretary for a hearing.

from any standard or portion thereof whenever he de-

termines, or the Secretary of Health and Human Serv-

ices certifies, that such variance is necessary to permit

an employer to participate in an experiment approved

by him or the Secretary of Health and Human Serv-

ices designed to demonstrate or validate new and im-

proved techniques to safeguard the health or safety

of workers.

(7) Any standard promulgated under this subsec-

tion shall prescribe the use of labels or other appropri-

D-6

ate forms of warning as are necessary to insure that

employees are apprised of all hazards to which they

are exposed, relevant symptoms and appropriate

emergency treatment, and proper conditions and

precautions of safe use or exposure. Where appropri-

ate, such standard shall also prescribe suitable pro-

tective equipment and control or technological

procedures to be used in connection with such haz-

ards and shall provide for monitoring or measuring

employee exposure at such locations and intervals,

and in such manner as may be necessary for the pro-

tection of employees. In addition, where appropriate,

any such standard shall prescribe the type and fre-

quency of medical examinations or other tests which

shall be made available, by the employer or at his cost,

to employees exposed to such hazards in order to most

effectively determine whether the health of such em-

ployees is adversely affected by such exposure. In the

event such medical examinations are in the nature

of research, as determined by the Secretary of Health

and Human Services, such examinations may be fur-

nished at the expense of the Secretary of Health and

Human Services. The results of such examinations or

tests shall be furnished only to the Secretary or the

Secretary of Health and Human Services, and, at the

request of the employee, to his physician. The Secre-

tary, in consultation with the Secretary of Health and

Human Services, may by rule promulgated pursuant

to section 553 of Title 5, make appropriate modifica-

tions in the foregoing requirements relating to the use

of labels or other forms of warning, monitoring or

measuring, and medical examinations, as may be war-

ranted by experience, information, or medical or tech-

nological developments acquired subsequent to the

promulgation of the relevant standard.

(8) Whenever a rule promulgated by the Secretary

differs substantially from an existing national con-

sensus standard, the Secretary shall, at the same time,

D-7

publish in the Federal Register a statement of the rea-

sons why the rule as adopted will better effectuate

the purposes of this chapter than the national con-

sensus standard.

(1) The Secretary shall provide, without regard to the

requirements of chapter 5 of Title 5, for an emergency tem-

porary standard to take immediate effect upon publication

in the Federal Register if he determines (A) that employees

are exposed to grave danger from exposure to substances

or agents determined to be toxic or physically harmful or

from new hazards, and (B) that such emergency standard

is necessary to protect employees from such danger.

(2) Such standard shall be effective until superseded by

a standard promulgated in accordance with the procedures

prescribed in paragraph (3) of this subsection.

(3) Upon publication of such standard in the Federal

cordance with subsection (b) of this section, and the stan-

dard as published shall also serve as a proposed rule for

the proceeding. The Secretary shall promulgate a standard

under this paragraph no later than six months after pub-

lication of the emergency standard as provided in para-

graph (2) of this subsection.

(d) Variances from standards; procedure

Any affected employer may apply to the Secretary for

a rule or order for a variance from a standard promulgat-

ed under this section. Affected employees shall be given

notice of each such application and an opportunity to par-

ticipate in a hearing. The Secretary shall issue such rule

or order if he determines on the record, after opportunity

for an inspection where appropriate and a hearing, that

the proponent of the variance has demenstrated by a

preponderance of the evidence that the conditions, prac-

tices, means, methods, operations, or processes used or pro-

posed to be used by an employer will provide employment

D-8

and places of employment to his employees which are as

safe and healthful as those which would prevail if he com-

plied with the standard. The rule or order so issued shall

prescribe the conditions the employer must maintain, and

the practices, means, methods, operations, and processes

which he must adopt and utilize to the extent they differ

from the standard in question. Such a rule or order may

be modified or revoked upon application by an employer,

employees, or by the Secretary on his own motion, in the

manner prescribed for its issuance under this subsection

at any time after six months from its issuance.

(e) Statement of reasons for Secretary’s

determinations; publication in Federal Register

Whenever the Secretary promulgates any standard,

makes any rule, order, or decision, grants any exemption

or extension of time, or compromises, mitigates, or settles

any penalty assessed under this chapter, he shall include

a statement of the reasons for such action, which shall be

published in the Federal Register.

(f) Judicial review

Any person who may be adversely affected by a standard

issued under this section may at any time prior to the six-

tieth day after such standard is promulgated file a peti-

tion challenging the validity of such standard with the

United States court of appeals for the circuit wherein such

person resides or has his principal place of business, for

a judicial review of such.standard. A copy of the petition

shall be forthwith transmitted by the clerk of the court

to the Secretary. The filing of such petition shall not, un-

less otherwise ordered by the court, operate as a stay of

the standard. The determinations of the Secretary shall

be conclusive if sumported by substantial evidence in the

record considered as a whole.

(g) Priority for establishment of standards

In determining the priority for establishing standards

D-9

under this section, the Secretary shall give due regard to

the urgency of the need for mandatory safety and health

standards for particular industries, trades, crafts, occupa-

tions, businesses, workplaces or work environments. The

Secretary shall also give due regard to the recommenda-

tions of the Secretary of Health and Human Services

regarding the need for mandatory standards in determin-

ing the priority for establishing such standards.

E-1

§ 1910.1200 Hazard communication.

(a) Purpose. (1) The purpose of this section is to ensure

that the hazards of all chemicals produced or imported by

chemical manufacturers or importers are evaluated, and

that information concerning their hazards is transmitted

to affected employers and employees within the manufac-

turing sector. This transmittal of information is to be ac-

complished by means of comprehensive hazard

communication programs, which are to include container

labeling and other forms of warning, material safety data

sheets and employee training.

(2) This occupational safety and health standard is in-

tended to address comprehensively the issue of evaluating

and communicating chemical hazards to employees in the

manufacturing sector, and to preempt any state law per-

taining to this subject. Any state which desires to assume

responsibility in this area may only do so under the pro-

visions of section 18 of the Occupational Safety and Health

Act (29 U.S.C. 651 et seq.) which deals with state jurisdic-

tion and state plans.

(b) Scope and application. (1) This section requires chem-

ical manufacturers or importers to assess the hazards of

chemicals which the ° produce or import, and all employ-

ers in SIC Codes 20 through 39 (Division D, Standard In-

dustrial Classification Manual) to provide information to

their employees about the hazardous chemicals to which

they are exposed, by means of a hazard communication pro-

gram, labels and other forms of warning, material safety

data sheets, and information and training. In addition, this

section requires distributors to transmit the required in-

formation to employers in SIC Codes 20-39.

(2) This section applies to any chemical which is known

to be present in the workplace in such a manner that em-

ployees may be exposed under normal conditions of use or

in a foreseeable emergency.

(3) This section applies to laboratories only as follows:

(i) Employers shall ensure that labels on incoming con-

E-2

tainers of hazardous chemicals are not removed or defaced;

(ii) Employers shall maintain any material safety data

sheets that are received with incoming shipments of

hazardous chemicals, and ensure that they are readily ar

cessible to laboratory employees; and,

(iii) Employers shall ensure that laboratory employees

are apprised of the hazards of the chemicals in their work-

places in accordance with paragraph (h) of this section.

(4) This section does not require labeling of the follow-

ing chemicals:

(i) Any pesticide as such term is defined in the Federal

Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136

et seq.), when subject to the labeling requirements of that

Act and labeling regulations issued under that Act by the

Environmental Protection Agency;

(ii) Any food, food additive, color additive, drug, or cos-

metic, including materials intended for use as ingredients

in such products (e.g., flavors and fragrances), as such

terms are defined in the Federal Food, Drug, and Cosmet-

ic Act (21 U.S.C. 301 et seq.) and regulations issued un-

der that Act, when they are subject to the labeling

requirements of that Act and labeling regulations issued

under that Act by the Food and Drug Administration;

(iii) Any distilled spirits (beverage alcohols), wine, or

malt beverage intended for nonindustrial use, as such

terms are defined in the Federal Alcohol Administration

Act (27 U.S.C. 201 et seq.) and regulations issued under

that Act, when subject to the labeling requirements of that

Act and labeling regulations issued under that Act by the

Bureau of Alcohol, Tobacco, and Firearms; and,

(iv) Any consumer product or hazardous substance as

those terms are defined in the Consumer Product Safety

Act (15 U.S.C. 2051 et seq.) and Federal Hazardous Sub-

stances Act (15 U.S.C. 1261 et seq.) respectively, when sub-

ject to a consumer product safety standard or labeling

requirement of those Acts, or regulations issued under

those Acts by the Consumer Product Safety Commission.

E-3

(5) This section does not apply to:

(i) Any hazardous waste as such term is defined by the

Solid Waste Disposal Act, as amended by the Resource Con-

servation and Recovery Act of 1976, as amended (42 U.S.C.

6901 et seq.), when subject to regulations issued under that

Act by the Environmental Protection Agency;

(ii) Tobacco or tobacco products;

(iii) Wood or wood products;

(iv) Articles; and,

(v) Foods, drugs, or cosmetics intended for personal con-

sumption by employees while in the workplace.

(i) Which is formed to a specific shape or design during

manufacture; (ii) which has end use function(s) dependent

in whole or in part upon its shape or design during end

use; and (iii) which does not release, or otherwise result

in exposure to, a hazardous chemical under normal condi-

tions of use.

“Assistant Secretary” means the Assistant Secretary of

Labor for Occupational Safety and Health, U.S. Depart-

ment of Labor, or designee.

“Chemical” means any element, chemical compound or

mixture of elements and/or components.

“Chemical manufacturer” means an employer in SIC

Codes 20 through 39 with a workplace where chemical(s)

are produced for use or distribution.

“Chemical name” means the scientific designation of a

chemical in accordance with the nomenclature system de-

veloped by the International Union of Pure and Anplied

Chemistry (IUPAC) or the Chemical Abstracts Service

(CAS) rules of nomenclature, or a name which will clear-

ly identify the chemical for the purpose of conducting a

hazard evaluation.

“Combustible liquid” means any liquid having a flash-

point at or above 100°F (37.8°C), but below 200°F (93.3 °C),

except any mixture having components with flashpoints

E-4

of 200°F (93.3°C), or higher, the total volume of which

make up 99 percent or more of the total volume of the

mixture.

“Common name” means any designation or identifica-

tion such as code name, code number, trade name, brand

name or generic name used to identify a chemical other

than by its chemical name.

“Compressed gas” means:

(i) A gas or mixture of gases having, in a container, an

absolute pressure exceeding 40 psi at 70°F (21.1°C); or

(ii) A gas or mixture of gases having, in a container, an

absolute pressure exceeding 104 psi at 130°F (54.4°C)

regardless of the pressure at 70°F (21.1°C); or

(iii) A liquid having a vapor pressure exceeding 40 psi

at 100°F (37.8°C) as determined by ASTM D-323-72.

“Container” means any bag, barrel, bottle, box, can,

cylinder, drum, reaction vessel, storage tank, or the like

that contains a hazardous chemical. For purposes of this

section, pipes or piping systems are not considered to be

containers.

“Designated representative” means any individual or or-

ganization to whom an employee gives written authoriza-

tion to exercise such employee’s rights under this section.

A recognized or certified collective bargaining agent shall

be treated automatically as a designated representative

without regard to written employee authorization.

“Director” means the Director, National Institute for Oc-

cupational Safety and Health, U.S. Department of Health

and Human Services, or designee.

“Distributor” means a business, other than a chemical

manufacturer or importer, which supplies hazardous chem-

icals to other distributors or to manufacturing purchasers.

“Employee” means a worker employed by an employer

in a workplace in SIC Codes 20 through 39 who may be

exposed to hazardous chemicals under normal operating

conditions or foreseeable emergencies, including, but not

E-5

limited to production workers, line supervisors, and repair

or maintenance personnel. Office workers, grounds main-

tenance personnel, security personnel or non-resident

management are generally not included, unless their job

performance routinely involves potential exposure to

hazardous chemicals.

“Employer” means a person engaged in a business

within SIC Codes 20 through 39 where chemicals are either

used, or are produced for use or distribution.

“Explosive” means a chemical that causes a sudden,

almost instantaneous release of pressure, gas, and heat

when subjected to sudden shock, pressure, or high tem-

perature.

“Exposure” or “exposed’”’ means that an employee is sub-

jected to a hazardous chemical in the course of employment

through any route of entry (inhalation, ingestion, skin con-

tact or absorption, etc.), and includes potential (e.g., ac-

cidental or possible) exposure.

“Flammable” means a chemical that falls into one of the

following categories:

(i) ““Aerosol, flammable” means an aerosol that, when

tested by the method described in 16 CFR 1500.45, yields

a flame projection exceeding 18 inches at full valve open-

ing, or a flashback (a flame extending back to the valve)

at any degree of valve opening;

(ii) “Gas, flammable” means:

(A) A gas that, at ambient temperature and pressure,

forms a flammable mixture with air at a concentration of

thirteen (13) percent k,- volume or less; or

(B) A gas that, at ambient temperature and pressure,

forms a range of flammable mixtures with air wider than

twelve (12) percent by volume, regardless of the lower limit;

(iii) ‘““Liquid, flammable” means any liquid having a

flashpoint below 100°F (37.8°C), except any mixture hav-

ing components with flashpoints of 100°F (37.8°C) or

higher, the total of which make up 99 percent or more of

————————

E-6

the total volume of the mixture.

(iv) “Solid, flammable” means a solid, other than a blast-

ing agent or explosive as defined in § 1910.109(a), that is

liable to cause fire through friction, absorption of moisture,

spontaneous chemical change, or retained heat from

manufacturing or processing, or which can be ignited read-

ily and when ignited burns so vigorously and persistently

as to create a serious hazard. A chemical shall be con-

sidered to be a flammable solid if, when tested by the

method described in 16 CFR 1500.44, it ignites and burns

with a self-sustained flame at a rate greater than one-tenth

of an inch per second along its major axis.

“Flashpoint” means the minimum temperature at which

a liquid gives off a vapor in sufficient concentration to ig-

nite when tested as follows:

(i) Tagliabue Closed Tester (See American National

Standard Method of Test for Flash Point by Tag Closed

Tester, Z11.24-1979 (ASTM D 56-79)) for liquids with a vis-

cosity of less than 45 Saybolt Universal Seconds (SUS) at

100°F (37.8°C), that do not contain suspended solids and

do not have a tendency to form a surface film under test; or

(ii) Pensky-Martens Closed Tester (see American Nation-

al Standard Method of Test for Flash Point by Pensky-

Martens Closed Tester, Z11.7-1979 (ASTM D93-79)) for

liquids with a viscosity equal to or greater than 45 SUS

a 100°F (37.8°C), or that contain suspended solids, or that

have a tendency to form a surface film under test; or

(iii) Setaflash Closed Tester (see American National

Standard Method of Test for Flash Point by Setaflash

Closed Tester (ASTM D3278-78)).

Organic peroxides, which undergo autoaccelerating ther-

mal decomposition, are excluded from any of the flashpoint

determination methods specified above.

‘““Foreseeable emergency” means any potential occur-

rence such as, but not limited to, equipment failure, rup-

ture of containers, or failure of control equipment which

E-7

could result in an uncontrolled release of a hazardous

chemical into the workplace.

‘Hazard warning” means any words, pictures, symbols,

or combination thereof appearing on a label or other ap-

propriate form of warning which convey the hazards of the

chemical(s) in the container(s).

‘Hazardous chemical” means any chemical which is a

physical hazard or a health hazard.

‘Health hazard” means a chemical for which there is

statistically significant evidence based on at least one

study conducted in accordance with established scientific

principles that acute or chronic health effects may occur

in exposed employees. The term “health hazard” includes

chemicals which are carcinogens, toxic or highly toxic

agents, reproductive toxins, irritants, corrosives, sensitiz-

ers, hepatotoxins, nephrotoxins, neurotoxins, agents which

act on the hematopoietic system, and agents which damage

the lungs, skin, eyes, or mucous membranes. Appendix A

provides further definitions and explanations of the scope

of health hazards covered by this section, and Appendix

B describes the criteria to be used to determine whether

or not a chemical is to be considered hazardous for pur-

poses of this standard.

‘Identity’ means any chemical or common name which

is indicated on the material safety data sheet (MSDS) for

the chemical. The identity used shall permit cross-

references to be made among the required list of hazardous

chemicals, the label and the MSDS.

‘Immediate use” means that the hazardous chemical will

be under the control of and used only by the person who

transfers it from a labeled container and only within the

work shift in which it is transferred.

“Importer” means the first business with employees

within the Customs Territory of the United States which

receives hazardous chemicals produced in other countries

for the purpose of supplying them to distributors or

manufacturing purchasers within the United States.

E-8

“Label” means any written, printed, or graphic materi-

al displayed on or affixed to containers of hazardous

chemicals.

‘Manufacturing purchaser” means an employer with a

workplace classified in SIC Codes 20 through 39 who pur-

chases a hazardous chemical for use within that workplace.

‘‘Material safety data sheet (MSDS)” means written or

printed material concerning a hazardous chemical which

is prepared in accordance with paragraph (g) of this section.

“Mixture” means any combination of two or more chem-

icals if the combination is not, in whole or in part, the result

of a chemical reaction.

“Organic peroxide” means an organic compound that

contains the bivalent -O-O-structure and which may be con-

sidered to be a structural derivative of hydrogen peroxide

where one or both of the hydrogen atoms has been replaced

by an organic radical.

“Oxidizer” means a chemical other than a blasting agent

or explosive as defined in § 1910.109(a), that initiates or

promotes combustion in other materials, thereby causing

fire either of itself or through the release of oxygen or other

gases.

“Physical hazard” means a chemical for which there is

scientifically valid evidence that it is a combustible liquid,

a compressed gas, explosive, flammable, an organic perox-

ide, an oxidizer, pyrophoric, unstable (reactive) or water-

reactive.

“Produce” means to manufacture, process, formulate, or

repackage.

“Pyrophoric” means a chemical that will ignite spontane-

ously in air at a temperature of 130°F (54.4°C) or below.

‘Responsible party” means someone who can provide ad-

ditional information on the hazardous chemical and ap-

propriate emergency procedures, if necessary.

‘Specific chemical identity” means the chemical name,

Chemical Abstracts Service (CAS) Registry Number, or any

E-9

other information that reveals the precise chemical desig-

nation of the substance.

“Trade secret” means any confidential formula, pattern,

process, device, information or compilation of information

that is used in an employer’s business, and that gives the

employer an opportunity to obtain an advantage over com-

petitors who do not know or use it. Appendix D sets out

the criteria to be used in evaluating trade secrets.

“Unstable (reactive) means a chemical which in the

pure state, or as produced or transported, will vigorously

polymerize, decompose, condense, or wil! become self- reac-

tive under conditions of shocks pressure or temperature.

‘Use’ means to package, hardle, react, or transfer.

‘‘Water-reactive’” means a chemical that reacts with

water to release a gas that is either flammabie or presents

a heaith hazard.

-‘‘Work area” means a room or defined space in a work-

place where hazardous chemicals are produced or used, and

where employees are present.

“Workplace” means an establishment at one geograph-

ical location containing one or more work areas.

(d) Hazard determination. (1) Chemical manufacturers

and importers shall evaluate chemicals produced in their

workplaces or imported by them to determine if they are

hazardous. Employers are not required to evaluate chem-

icals unless they choose not to rely on the evaluation per-

formed by the chemical manufacturer or importer for the

chemical to satisfy this requirement.

(2) Chemical manufacturers, importers or employers

evaluating chemicals shall identify and consider the avail-

able scientific evidence concerning such hazards. For

health hazards, evidence which is si tistically significant

and which is based on at least one positive study conduct-

ed in accordance with established scientific principles is

considered to be sufficient to establish a hazardous effect

if the results of the study meet the definitions of health

hazards in this section. Appendix A shall be consulted for

E-10

the scope of health hazards covered and Appendix B shall

be consulted for the criteria to be followed with respect to

the completeness of the evaluation, and the data to be

reported.

(3) The chemical manufacturer, importer or employer

evaluating chemicals shall treat the following sources as

establishing that the chemicals listed in them are

hazardous:

(i) 29 CFR Part 1910, Subpart Z, Toxic and Hazardous

Substances, Occupational Safety and Health Administra-

tion (OSHA); or,

(ii) Threshold Limit Values for Chemical Substances and

Physical Agents in the Work Environment, American Con-

ference of Governmental Industrial Hygienists (ACGIH)

(latest edition). —

The chemical manufacturer, importer, or employer is still

responsible for evaluating the hazards associated with the

chemicals in these source lists in accordance with the re-

quirements of the standard.

(4) Chemical manufacturers, importers and employers

evaluating chemicals shall treat the following sources as

establishing that a chemical is a carcinogen or potential

carcinogen for hazard communication purposes:

(i) National Toxicology Program (NTP), Annual Report

on Carcinogens (latest edition);

(ii) International Agency for Research on Cancer (IARC)

Monographs (latest editions); or

(iii) 29 CFR Part 1910, Subpart Z, Toxic and Hazardous

Substances, Occupational Safety and Health Adminis-

tration.

Note: The Registry of Toxic Effects of Chemical Substances published by the

National Institute for Occupational Safety and Health indicates whether a chem-

ical has been found by NTP or IARC to be a potential carcinogen.

(5) The chemical manufacturer, importer or emplcyer

shall determine the hazards of mixtures of chemicals as

follows: .

(i) If a mixture has been tested as a whole to determine

E-11

its hazards, the results of such testing shall be used to de-

termine whether the mixture is hazardous;

(ii) If a mixture has not been tested as a whole to deter-

mine whether the mixture is a health hazard, the mixture

shall be assumed to present the same health hazards as

do the components which comprise one percent (by weight

or volume) or greater of the mixture, except that the m

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.