Opposition Brief — Pymm v. New York

ss

JAN 25 1991

WOSEPH F. SPANIOL, JR,

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

_

WILLIAM PYMM, EDWARD PYMM, JR., PYMM THERMOMETER

CORPORATION, AND PAK GLASS MACHINERY CORPORATION,

Petitioners,

—vs.—

STATE OF NEW YORK,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE NEW YORK COURT OF APPEALS

RESPONDENT?’S BRIEF IN OPPOSITION

CHARLES J. HYNES

District Attorney

Kings County

JAY M. COHEN

SHULAMIT ROSENBLUM

Assistant District Attorneys

210 Joralemon Street

Brooklyn, New York 11201

(718) 802-2831

ROBERT ABRAMS

Attorney General of the

State of New York

O. PETER SHERWOOD

Solicitor General

LAWRENCE S. KAHN

Deputy Solicitor General

NANCY STEARNS*

Assistant Attorney General

120 Broadway

New York, New York 10271

(212) 341-2453

*Counsel of Record

Counsel for Respondent

22,

i

QUESTION PRESENTED

Whether the Occupational Safety and Health Act, 29

U.S.C. § 651 ef seq., preempts state criminal prosecution,

pursuant to laws of general application, of crimes committed

against workers in the workplace?

TABLE OF CONTENTS

PAGE

eb ye eB ys re eee i

pre Be iy) ey). rr ree ili

eee a By Pere errr er ee 1

REASONS WHY THE PETITION SHOULD BE

PPE TEE ETE TE ee eT eee Sen 7

1. The ruling of the New York Court of Appeals

is consistent with the rulings of this Court

rr rr eee 8

a. The Occupational Safety and Health Act

does not expressly poonnge New York

Rg EE Ee Ane re ee 10

b. The OSH Act does not impliedly preempt

New York State penal law .............. 11

i. The OSH Act does not occupy the field

of workplace safety and health....... 12

li. New York State penal law does not

conflict with the purpose of the OSH

REE 2 innvvdgs caxaeirdc tees: 14

2. The ruling of the New York Court of Appeals

is in accord with the rulings of the highest

courts of all other states which have consid-

ek Pr tor ae ee 15

CIP RAINEET 50s danse duveoneouensaeedeneebaeaas 16

TABLE OF AUTHORITIES

Cases:

Colorado v. Kelran Const. Inc., 13 OSHC 1898 (D. Ct.

eee ieee hes aceae ete cbeeredsees

Environmental Encapsulating Corp. v. New York City,

Se a A ORs occ ccc ececcccencosece

Fidelity Federal Savings & Loan Ass’n. v. de la Cuesta,

S56 U.S. 3461 CEASE) o. 20s. Se es eae eae 5

Florida Lime and Avocado Growers, Inc. v. Paul, 373

Seed e eS EAR See eersenceecesees

Hillsborough Co. v. Automated Medical Labs, Inc.,

es ee et Geb babe ebteccedesss

Jones v. Rath Packing Co., 430 U.S. 519 (1977).....

Malone v. White Motor Corp., 435 U.S. 497 (1978)..

Pacific Gas and Electric Co. v. State Energy Resource

Conservation and Dev. Comm’n., 461 U.S. 190

EE EEE EELS OSES PTT eT eT Te Tee ee

People v. Chicago Magnet Wire Corp., 126 Ill. 2d 356,

128 Ill. Dec. 517, 534 N.E.2d 962, cert. denied,

- ae) fF ioe ey | ee >) ee eS

People v. Hegedus, 432 Mich. 598, 443 N.W.2d 127

EPC car eRe heb eéudsekeedesce’ 7. Oe Me any OA,

People v. Pymm, 76 N.Y.2d 511, 561 N.Y.S.2d 687,

es cows on du bass & 00-0 Wee e's s 06s

People v. Pymm, 151 A.D.2d 133, 546 N.Y.S.2d 871

Ne Coe chew kab 6'b 0S) 60060 00480 0

Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947)

Sabine Consolidated, Inc. v. State of Texas, 756 S.W.

nics cc bsascwevsetnescees

PAGE

10

10

15

iv

PAGE

Silkwood v. Kerr-McGee, 464 U.S. 238 (1984) ....... 13

State ex rel Cornellier v. Black, 144 Wisc.2d 745, 425

N.W.2d 21 (Ct.App. 1988) pet. for review denied,

145 Wis.2d 916, 430 N.W.2d 351 (Wisc. 1988)..... 15

Thornock v. State, 229 Mont. 67, 745 P.2d 324 (Mont.

EERE CAI ABA A BSEN 5 Ge Un gpa AR pr) ies ie RE 15

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

Se Se a ED bio Wd BoA ab F056 Cae ed anes bc bees 13

Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980) ....8, 10, 14

Statutes:

I EEE nna obadeanesccenccbunebussases 8, 12

es MI C456 6566 eceenadvedaceetuecssueee 10

Be IIE 6s Sac cccanccnsscnewtenberecdss 9, 11

ee MEE cs a dey NAdAs due eccknccecscacess 8

SA Ea vob est sce asec eecduseccceeeaever 8

oe OE TTT TTT ETT eT Te eee 10

ee EE 6 8 0018 4 6c0e ns ors hence cuen donee’ 12

Other Authorities:

Se I EE CRUD cncccccccccccvncviacss 12

Se I Re OE, on cc ccccncbcesesseeves 12

Re es ee A TED oc i sec enccsoceseucess 12

Note, Getting Away With Murder: Federal OSHA Pre-

emption of State Criminal Prosecutions for Indus-

trial Accidents, 101 Harv. L. Rev. 535 (1987)...... 8, 11

PAGE

S. Rep. No. 91-1218, 91st Cong. 2nd Sess. (1970),

reprinted in Legislative History of the Occupational

Safety and Health Act of 1970, Committee Print,

S2nd Cong. Ist Sess., Fume 197)... wc ccccsscccces 8

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7 —— F a 8

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-847

>

WILLIAM PYMM, EDWARD PYMM, JR., PYMM THERMOME-

TER CORPORATION, AND PAK GLASS MACHINERY COR-

PORATION

Petitioners,

—vVvs. —-

STATE OF NEW YORK,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE NEW YORK COURT OF APPEALS

>

RESPONDENT’S BRIEF IN OPPOSITION

Respondent respectfully requests that this Court deny the

Petition for a Writ of Certiorari, seeking review of the New

York Court of Appeals opinion in this case. That opinion is

reported at 76 N.Y.2d 511, 561 N.Y.S.2d 687, 563 N.E.2d 1

(1990).

STATEMENT OF FACTS

From the early 1970’s, petitioners Pymm Thermometer

Corporation (PTC), Pak-Glass Machinery Corporation (Pak-

Glass), and William and Edward Pymm, Jr. were repeatedly

warned by state and federal agencies about the extreme

the

2

dangers of mercury and the precautions necessary to protect

workers from mercury poisoning. Nevertheless, petitioners

continued for fifteen years to expose workers at their ther-

mometer manufacturing plant to excessively high concertra-

tions of mercury vapor in the air, risking damage to the

workers’ brains, kidneys, and other vital organs and body

systems. Opinion at 3-5.'

Petitioners’ operation was housed in a two-story building

in Brooklyn, New York. The individual defendants were offi-

cers of PTC and were responsible for daily management and

supervision of the plant’s operations. PTC manufactured

thermometers for clinical use on the second floor of the

plant. Pak-Glass made, serviced, and repaired the machinery

used at PTC and was located on the first floor of the same

building, at ground level. Jd. at 2-3. Between 1981 and 1985,

eighty to a hundred people worked in the plant.

Contrary to petitioners’ contentions, the conditions on

petitioners’ main manufacturing floor were not in compliance

with regulations of the Occupational Safety and Health

Administration (OSHA) from January, 1981 to October,

1985. During that period, OSHA inspected the plant at least

four times and issued numerous citations for violations of

OSHA standards and regulations in 1981 and 1985. In 1981,

petitioners were cited for exposing their workers on the man-

ufacturing floor to mercury vapor concentrations averaging

double the permissible OSHA level. They were also warned

about the inadequacy of ventilation, the absence of personal

protective equipment, and the need to warn and train work-

ers regarding the dangers of mercury. Jd. at 5-6. For over

four years, petitioners did little or nothing to cure the viola-

tions or to comply with OSHA’s suggestions. Thus, during

an OSHA inspection ending in March, 1985, OSHA cited

petitioners for poor housekeeping, exposing workers to mer-

1 The opinion of the court below has been reproduced by petitioners

as the first document in the Appendix to their Petition. Citziions to

*‘Opinion at ”* are references to the opinion as reproduced in the

Appendix.

3

cury vapor in excess of the permissible OSHA level, failing to

furnish feasible engineering controls, and permitting a worker

to eat in the work area. Jd.

Already aware of the dangerous conditions on their main

manufacturing floor, petitioners created and maintained even

worse conditions in a cellar mercury-reclamation operation,

starting in April, 1983. In order to salvage some of the valu-

able mercury it had been wasting in its above-ground manu-

facturing process, PTC constructed a crushing machine which

ground up broken and defective thermometers, spewing

mercury-laden dust into the face of the machine operator.

The machine was housed in a windowless, underventilated

cellar, where petitioners stored boxes leaking mercury from

the broken and faulty thermometers. Jd. at 6-7.

Into this extremely hazardous operation, petitioners sent

several workers, including Vidal Rodriguez. When Mr. Rodri-

guez began working for petitioners in 1981, he was a strong

and healthy man of forty-five. R. 2097-98, 2688, 2693.*

After about two years of working as a cleanup and handy

man on the manufacturing floor, where he was exposed to

high concentrations of mercury vapors from the action of

cleaning solvents and from sweeping up mercury droplets, he

began suffering the ill effects of mercury. His knees ached,

he had difficulty sleeping, he became irritable, he suffered

headaches and dizziness, and he needed a cane to walk the

one and a half blocks from home to work. R. 2104-6, 2683,

2686-88. After working in the cellar, Mr. Rodriguez’s injuries

worsened considerably. The damage to his brain had become

irreparable. Opinion at 7-8.

The severity of Mr. Rodriguez’s injury was the result of his

daily exposure, for approximately six hours a day, over an

eleven month period, to the especially high concentrations of

mercury vapor in the cellar, after he had been previously

overexposed while working on the main factory floor. While

other workers were exposed to similar dangers, the evidence

. Citations to R. are references to the minutes of trial, as origi-

nally paginated, which are part of the record in the Court of Appeals.

4

showed that they were not seriously injured because none of

them spent as much time in the cellar as Mr. Rodriguez; none

were exposed in the same manner as Mr. Rodriguez.

When Mr. Rodriguez asked petitioners about any possible

dangers of working with mercury, they lied to him, telling

him mercury was not dangerous to people. R. 2106-7. They

provided no training for any of their workers and refused to

supply Mr. Rodriguez and others with protective clothing and

other safety equipment.

In June, 1984, Mr. Rodriguez injured his arm at work.

While being treated for his injury, he learned from the physi-

cian who treated him that many of the symptoms the peti-

tioners had been attributing to his alleged old age were,

instead, the results of mercury poisoning from exposure in

petitioners’ plant. R. 2691, 2877, 2894, 2898. When Mr.

Rodriguez returned to work after a two week course of hos-

pital treatment for mercury poisoning and asked petitioners

to fill out his workers’ compensation form, which included a

claim for mercury poisoning, petitioners fired him on the

spot. R. 2692-94, 2892-94.

While Mr. Rodriguez and other workers labored in the

cellar mercury reclamation operation (from approximately

April, 1983 to October, 1985), at least two OSHA inspections

took place. Petitioners hid the existence of this operation

from OSHA and from other governmental agencies which

came to their plant, by lying about areas in which mercury

was used, by omitting the cellar from purportedly complete

tours of all the work areas at PTC, and by closing the opera-

tion temporarily during inspections. Consequently, OSHA

did not learn about the cellar operation or have an opportu-

nity to inspect it or take measurements to determine air mer-

cury vapor concentrations while workers were there. Opinion

at 6-7. In fact, OSHA learned of the existence of the recla-

mation operation by happenstance. In October, 1985, Mr.

Rodriguez found the inspectors on the street during their

lunch break and told them about the cellar. R. 255-58, 1837-

39.

5

When the inspectors then asked petitioners about the cel-

lar, petitioners lied about its existence, tried to prevent

OSHA inspectors from measuring the mercury vapor levels in

the cellar, and performed a massive cleanup to conceal the

conditions under which the workers had labored. R. 265-68,

270-71, 314-15. Expert testimony, including that of a Profes-

sor of Environmental Engineering at Harvard University,

established that the mercury vapor breathed by Vidal Rodri-

guez and other workers was approximately fifty times the

OSHA limit. R. 497, 554.

After Mr. Rodriguez’s illness was discovered, the New

York City Department of Health examined other workers in

petitioners’ plant. Contrary to petitioners’ apparent claim to

this Court (Petition at 22), tests revealed that over half of the

workers in the plant in October, 1984 had urine mercury lev-

els considered hazardous by OSHA, including about twenty

percent who had levels which mandated their immediate

removal from exposure. R. 1115-17. Mr. Rodriguez had mer-

cury urine levels three times as high as those OSHA consid-

ered hazardous. R. 1233A-7, 1301.

In addition, expert medical evidence offered at trial estab-

lished that Mr. Rodriguez suffered permanent damage to his

central and peripheral nervous systems. Opinion at 7-8.

Among the experts who testified at trial were doctors who

conducted objective neurophysiological tests on Mr. Rodri-

guez at Boston University Hospital in April, 1986. What

most impressed the team that examined Mr. Rodriguez were

the ‘‘holes’’ in his brain that they saw in its magnetic reso-

nance image. R. 2620, 2638. Every medical expert who exam-

ined or treated Mr. Rodriguez agreed that there was no

explanation for Mr. Rodriguez’s illness other than mercury

vapor poisoning due to exposure at petitioners’ plant. Opin-

ion at 7-8.

On the basis of these and other facts, the jury convicted

petitioners of Conspiracy in the Fifth Degree (New York

Penal Law § 105.05 (1) and Falsifying Business Records in

the First Degree (New York Penal Law § 175.10) for conspir-

6

ing to conceal the existence of the cellar operation and

thereby causing OSHA to make inaccurate reports; Assault in

the First Degree (New York Penal Law § 120.10(4)) for the

infliction of serious physical injury to Mr. Rodriguez in the

course and furtherance of the felony of Falsifying Business

Records in the First Degree (New York Penal Law § 175.10);

Assault in the Second Degree (New York Penal Law

§ 120.05(4)) for recklessly inflicting serious physical injury

upon Mr. Rodriguez with a dangerous instrument, namely,

mercury; and Reckless Endangerment in the Second Degree

(New York Penal Law § 120.20) for creating a substantial

risk of serious physical injury to all of the workers in the

plant.

The trial court set aside the verdict on the ground that the

Occupational Safety and Health Act of 1970 (OSH Act) pre-

empted New York State from prosecuting petitioners for vio-

lations of New York State Penal Law. The New York State

Supreme Court, Appellate Division, Second Department,

reversed the trial court’s decision and reinstated the verdict.

People v. Pymm, 151 A.D.2d 133, 546 N.Y.S.2d 871 (2d

Dep’t 1989).

The New York Court of Appeals unanimously affirmed the

order of the Appellate Division, holding that the OSH Act

does not preempt the State of New York from providing New

York workers the same protections under criminal law as

other citizens, and that the state may prosecute a corporation

and its officers for crimes against their workers. People v.

Pymm, 76 N.Y.2d 511, 561 N.Y.S.2d 687, 563 N.E.2d 1

(1990). The court also rejected petitioners’ contention,

repeated in their petition to this Court, that it was a ‘‘physi-

cal impossibility’’ to comply with New York State and fed-

eral law in this area. ‘‘The [OSH] Act does not require an

employer to engage in conduct that is prohibited by the State

of New York, nor is the reverse true.’’ Opinion at 36. In so

ruling, the court below noted that the highest courts of IIli-

nois and Michigan had also held that state criminal law is not

preempted by the OSH Act. Jd. at 37 (citing People v. Chi-

cago Magnet Wire Corp., 126 Ill. 2d 356, 128 Ill Dec. 517,

534 N.E.2d 962, cert. denied, Si cou, 200 S.Ct. $2

(1989); People v. Hegedus, 432 Mich. 598, 443 N.W.2d 127

(1989)).

REASONS WHY THE PETITION SHOULD BE DENIED

The petition for a writ of certiorari should be denied

because the New York Court of Appeals correctly applied

well-understood principles relating to the Supremacy Clause

of the United States Constitution and the power of Congress

to preempt state law. Moreover, this record does not present

the issue petitioners posit. Petitioners have presented this case

to the Court as involving a state criminal prosecution for

conduct and conditions that complied with the OSH Act

standards and requirements. They insist that the prosecu-

tion’s case rested on speculation and that the evidence of vio-

lations of OSHA standards and injury to their employee was

insufficient and subjective. These assertions distort both the

record below and the basis for the decision of the Court of

Appeals.

Here petitioners’ conduct not only egregiously violated

OSHA regulations, but also deviated dramatically from any

reasonable standard of care owed by members of society to

each other. As a result, according to expert and other objec-

tive evidence offered at trial, petitioners caused serious brain

damage to one employee and gravely endangered other work-

ers. It was on the basis of this record that the Court of

Appeals held that this prosecution, pursuant to state criminal

laws of general application, was not preempted by the OSH

Act. This decision is supported by the language and legisla-

tive history of the OSH Act and by the decisions of this

Court upon which the Court of Appeals relied. It is also con-

sistent with the decisions of the highest courts of the other

states that have considered this issue.

a

8

1. The ruling of the New York Court of Appeals is consis-

tent with the rulings of this Court regarding preemption.

Congressional intent is ‘‘the ultimate touchstone’’ in deter-

mining preemption. Malone v. White Motor Corp., 435 U.S.

497, 504 (1978). The purpose of Congress in enacting the

OSH Act was to ‘‘assure so far as possible every working

man and woman in the Nation safe and healthful working

conditions and to preserve our human resources.’’ 29 U.S.C.

§ 651(b). The Act was the response to what Congress

described as a ‘‘grim current scene’’ in which industrial acci-

dents and illnesses due to occupational toxic exposures were

resulting in ever increasing human misery and economic loss.

S. Rep. No. 91-1218, 9lst Cong. 2nd Sess. (1970), reprinted

in Legislative History of the Occupational Safety and Health

Act of 1970, Committee Print, 92nd Cong. Ist Sess., June

1971, at 142 (hereinafter, Legislative History).

In order to accomplish its purpose of assuring a safe and

healthful workplace, Congress established a regulatory pro-

gram, the primary focus of which was to prevent injuries in

advance, rather than to penalize employers for past conduct

or to compensate injured workers. Whirlpool Corp. v. Mar-

shall, 445 U.S. 1, 12 (1980); Hegedus, 432 Mich. at 604, 443

N.W. 2d at 129; see also Note, Getting Away With Murder:

Federal OSHA Preemption of State Criminal Prosecutions

for Industrial Accidents, 101 Harv. L. Rev. 535, 537 (1987).

The regulatory program is based both on the General Duty

Clause, which requires that employers provide employees a

place of employment ‘‘free from recognized hazards that are

causing or are likely to cause death or serious physical

harm’’, Section 5, 29 U.S.C. § 654, and detailed standards

promulgated by the Secretary of Labor, pursuant to Section 6

of the OSH Act, 29 U.S.C. § 655. The OSH Act was ‘“‘to

assure minimum—but not necessarily uniform—occupational

health and safety standards.’’ Environmental Encapsulating

Corp. v. New York City, 855 F.2d 48, 59 (2d Cir. 1988).

The fact that states are encouraged in the first section of

the act to develop their own occupational safety and

9

health standards subject only to the condition in

§ 18(c)(2) that they be ‘‘at least as effective’’ as the fed-

eral standards, indicates that Congress was not primarily

concerned with uniformity but rather intended the fed-

eral act to provide a kind of ‘‘floor’’ of protection to

employees.

Hegedus, 432 Mich. at 622, 443 N.W.2d at 138. Further-

more, the regulatory program was expressly intended to co-

exist with state common law and statutes relating to

‘‘injuries, diseases or death of employees arising out of, or in

the course of employment.’’ 29 U.S.C. § 653(b)(4).”

Although the Act does contain limited penalties, Congress

did not intend to supplant the states in the use of their crimi-

nal powers. To the contrary, by enacting the OSH Act, Con-

gress created a complex scheme which reserves substantial

authority for the states outside of the regulatory sphere,

including the authority to apply their penal laws where they

have been violated.

In holding that New York State can exercise its police

power to prosecute crimes against workers under the Penal

Law, the Court of Appeals correctly applied and relied upon

the rulings of this Court governing preemption. As the Court

of Appeals preliminarily noted,

‘‘fw)here . . . the field that Congress is said to have

preempted has been traditionally occupied by the states

. ‘we start with the assumption that the historic

police powers of the States were not to be superseded by

the Federal Act unless that was the clear and manifest

purpose of Congress.’ ”’

2 Section 4(b)(4) provides:

Nothing in this Act shall be construed to supersede or in any man-

ner affect any workmen’s compensation law or to enlarge or dimin-

ish or affect in any other manner the common law or statutory

rights, duties, or liabilities of employers and employees under any

law with respect to injuries, diseases, or death of employees arising

out of, or in the course of employment.

29 U.S.C. § 653 (b)(4).

o letenentiatieeea tates

10

Opinion at 17-18 (quoting Jones v. Rath Packing Co., 430

U.S. 519, 525 (1977)). Such clear and manifest purpose to

preempt is entirely absent from the OSH Act. That absence is

fatal to petitioners’ claim in light of the states’ predominant

historical interest in regulating health and safety matters.

Hillsborough Co. v. Automated Medical Labs, Inc., 471 U.S.

707, 719 (1985).

a. The OSH Act does not expressly preempt New York

State Penal Law.

Congress can preempt state law by stating such an inten-

tion in explicit language. Jones v. Rath Packing Co., 430

U.S. at 525. The court below correctly rejected petitioners’

contention that Section 18(a) of the OSH Act, 29 U.S.C. |

§ 667(a), expressly preempts New York State penal law. Sec-

tion 18(a) provides:

Nothing in this Act shall prevent any State agency or

court from asserting jurisdiction under state law over

any occupational safety and health issue with respect to

which no standard is in effect under section 655 of this

title.

29 U.S.C. § 667(a).

The court concluded that Congress only intended to pre-

empt states from imposing their own occupational safety and

health standards, and that a prosecution under New York’s

penal law of general application does not constitute the impo-

sition of such standards.’ Opinion at 20. Relying on this

Court’s opinion in Whirlpool Corp. v. Marshall, 445 U.S. at

12, the court noted that OSHA standards are ‘‘prophylactic

measures that are intended to prevent workplace accidents

from ever occurring,’’ while state criminal law is triggered

3. ~=A standard is defined in the OSH Act as:

a standard which requires conditions, or the adoption or use of one

Or more practices, means, methods, operations, or processes, rea-

sonably necessary or appropriate to provide safe or healthful

employment and places of employment.

29 U.S.C. § 652(8).

11

after the fact by the commission of acts which ‘‘the society as

a whole deems unacceptable, wherever they may occur.’’

Opinion at 21. Criminal law imposes penalties ‘‘that reflect

society’s condemnation of behavior in violation of generally

accepted norms,’’ and serves ‘‘to deter conduct that society

has labelled intolerable and morally repugnant, and in this

way protect every citizen of the state.’’ Opinion, at 21-22.

See also Chicago Magnet Wire, 126 Ill. 2d at 366, 534

N.W.2d at 966 (1989); Hegedus, 432 Mich. at 610, 443

N.W.2d at 132; Note, Getting Away With Murder: Federal

OSHA Preemption of State Criminal Prosecutions for Indus-

trial Accidents, 101 Harv. L. Rev. at 543.

In addition, the OSH Act contains a savings clause which

p.<serves state common law and statutory rights, duties and

liabilities of employers and employees with respect to injury,

diseases and death of workers. Section 4(b)(4), 29 U.S.C.

§ 653(b)(4). As the court below recognized, the savings

clause, when viewed in the context of the broad presumption

against preemption, demonstrates that Congress did not

intend Section 18 of the Act to preempt state penal laws.

Opinion at 22-23. See also Hegedus, 432 Mich. at 167, 443

N.W.2d at 135.

b. The OSH Act does not impliedly preempt New York

State penal law.

Even when federal preemption is not explicit, it may be

implied where there is ‘‘a scheme of federal regulation. . .

sO pervasive as to make reasonable the inference that Con-

gress left no room for the state to supplement it’’ because

Congress intended to dominate the field. Pacific Gas and

_ Electric Co. v. State Energy Resource Conservation and Dev.

Comm’n., 461 U.S. 190, 203 (1983) (quoting Fidelity Federal

Savings & Loan Ass’n. v. de la Cuesta, 458 U.S. 141, 153

(1982)); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230

(1947). Here, however, as the court below properly found,

the federal statutory scheme was ‘‘intended to foster continu-

ing state oversight over the workplace. . . .’’ Opinion at 25.

12

i. The OSH Act does not occupy the field of work-

place safety and health.

As the Court of Appeals concluded, by enacting the OSH

Act, Congress did not intend the federal government to

occupy the field of workplace safety and health. Rather,

Congress intended the states to remain deeply involved in

ensuring the health of workers. As the court observed, ‘‘[t]he

Act explicitly encourages states to ‘assume the fullest respon-

sibility for the administration and enforcement of their occu-

pational safety and health Jaws’ (29 U.S.C. § 651(b)(11)).”’

Opinion at 25. See also Hegedus, 432 Mich. at 619, 443

N.W. 2d at 136; Chicago Magnet Wire, 126 Ill. 2d at 367-8,

534 N.W. 2d at 966-7. In addition, Section 18 of the OSH

Act specifically permits the states to assume responsibility for

enforcement of occupational safety and health standards by

adopting a ‘‘state plan’’, and to adopt standards which are

more stringent than the federal standards. 29 U.S.C.

§ 667(b).

The court below also relied on the legislative history of the

OSH Act which reaffirms that Congress intended that the

states would remain involved in insuring workplace safety

and health and that the states could supplement federal mini-

mum safety standards. Opinion at 33-34 (citing Statement of

Rep. Karth, 116 Cong. Rec. 38,392 (Nov. 23, 1970); State-

ment of Sen. Williams, 116 Cong. Rec. 37,325 (Nov. 16,

1970); Statement of Sen. Saxbe, 116 Cong. Rec. 36,521 (Oct.

13, 1970)); see also Statement of Rep. Gaydos, reprinted in

Legislative History at p. 1035.

While it is true Congress intended to create a comprehen-

sive nationwide approach, Legislative History at 144, that

approach was to provide ‘‘. . . a floor of federai standards

which the States can build upon.’’ Statement of Sen. Saxbe,

Legislative History at 297. Furthermore, while Congress may

have expressed concern that conscientious employers might be

at a competitive disadvantage, Petition at 4, the federal regu-

latory ‘‘floor’’ was created not out of a concern about the

burdens on employers from multiple states laws, but rather to

staan iia conscecarrecemaiill

13

ensure that those states that were vigorously protecting the

health and safety of their workers would not be disadvan-

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

728, 734 (3rd Cir. 1985). The court therefore correctly

rejected petitioners’ contention that Congress intended to cre-

ate uniform safety standards. Petition at 30-31.

Silkwood v. Kerr-McGee, 464 U.S. 238 (1984), relied upon

by the court below, makes clear that state penal law is not

preempted even when enforcement of that law would touch

upon conduct that is already regulated by federal law and

might have an indirect regulatory impact. In Silkwood, this

Court upheld an award of punitive damages pursuant to state

law despite its indirect regulatory impact on conduct over

which the Nuclear Regulatory Commission had exclusive reg-

ulatory authority. 464 U.S. at 256. As the Illinois Supreme

Court stated in Chicago Magnet Wire:

There is little if any difference in the regulatory effect of

punitive damages in tort and criminal penalties under

the criminal law. (See Restatement (Second) of Torts

§ 908, comment b (1970)). We see no reason, therefore,

why what the Court declared in Silkwood should not be

applied to the preemptive effect of OSHA. Also, if Con-

gress, in OSHA, explicitly declared it was willing to

accept the incidental regulation imposed by compensa-

tory damages awards under State tort law, it cannot

plausibly be argued that it also intended to preempt

State criminal law because of its incidental regulatory

effect on workplace safety.

126 Ill.2d at 370-71, 534 N.E.2d at 968.

Finally, the Court of Appeals properly rejected petitioners’

contentions that permitting the application of state penal law

would conflict with the penalty structure established by Con-

gress in the OSH Act. The Act relies primarily on civil, and

has only limited criminal penalties.* This is not surprising in

4 The OSH Act contains criminal penalties only for giving advance

notice of inspections, making false statements, or for willful violations

14

light of the prophylactic nature of the Act. Whirlpool Corp.

v. Marshall, 445 U.S. at 12. Thus the court below concluded

that the very fact that ‘‘. . . the penalties are so skeletal. . .

argues against their being considered preemptive of state

criminal law.’’ Opinion at 31; see also Hegedus, 432 Mich. at

624, 443 N.W.2d at 138.

ii. New York State penal law does not conflict with

the purpose of the OSH Act.

Even where state law is not expressly or impliedly pre-

empted, it may be preempted when it actually conflicts with

federal law and it is impossible to comply with both state and

federal law, or where it stands as an obstacle to the accom-

plishment of the full purposes and objectives of Congress.

Pacific Gas and Elec., 461 U.S. at 204; Florida Lime and

Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-3 (1963).

Since Congress did not intend to mandate complete uni-

formity in the field of occupational safety and health, the

court properly rejected petitioners’ contention that the appli-

cation of state criminal law conflicts with the purpose of the

OSH Act. Opinion at 33. Rather, as the court found, the use

of state penal law is not merely consistent with, but in fur-

therance of ‘‘. .. the Act’s self-proclaimed purpose—

ensuring ‘safe and healthful working conditions’ for

American workers’’ Jd. at 27, and neither federal nor state

law requires an employer to engage in any conduct which is

prohibited by the law of the other government. Jd. at 36.

Petitioners claim that if the opinion below is permitted to

stand, ‘*. . . employers (such as petitioners) who comply

with the OSH Act standards [can] become subject to local

prosecution.’’ Petition at 34. The Court of Appeals, how-

ever, found that rather than being in compliance with OSH

Act standards, the petitioners had an on-going problem of

causing the death of a worker. 29 U.S.C. § 666(e)-(g). There is no

criminal penalty for violations (willful or otherwise) which cause seri-

ous physical injury or illness or even the complete incapacity of a

worker.

15

mercury contamination at their factory which posed a risk of

health to their employees and violated OSHA standards and

regulations. Opinion at 3, 5-6. As the Court of Appeals and

the Appellate Division both found, petitioners’ claim that

they could be prosecuted under State law despite compliance

with federal law is ‘‘a hollow one.’’ Opinion at 36.

2. The ruling of the New York Court of Appeals is in accord

with the rulings of the highest courts of all other states

which have considered the question.

The question of whether the OSH Act preempts the appii-

cation of state penal law to crimes which occur in the work-

place has been considered by the highest courts of New York,

Illinois, and Michigan. The Supreme Courts of Illinois and

Michigan, like the New York Court of Appeals, have held

that state penal law is not preempted. Chicago Magnet Wire,

126 Ill.2d 356, 534 N.E.2d 962; Hegedus, 432 Mich. 598, 443

N.W.2d 127. The Wisconsin Court of Appeals also held that

state law is not preempted and the Wisconsin Supreme Court

i declined to review the matter. State ex rel Cornellier v. Black,

144 Wisc.2d 745, 425 N.W.2d 21 (Ct.App. 1988), pet. for

review denied, 145 Wis.2d 916, 430 N.W.2d 351 (Wisc.

1988). The only appellate court which has held that state law

is preempted is an intermediate appellate court in Texas. Sab-

ine Consolidated, Inc. v. State of Texas, 756 S.W. 2d 865

(Tex. App. 1988). That decision was made without the bene-

fit of the decisions of the highest courts of New York, IIli-

nois and Michigan.* Thus, there are no conflicts among the

states which warrant review by this Court.

5 Colorado v. Kelran Const. Inc., 13 OSHC 1898 (D. Ct. Colo. 1988),

cited by petitioners, was also decided before the decisions of the three

high courts and was never appealed. Thornock v. State, 229 Mont. 67,

745 P.2d 324 (Mont. 1987), also cited by petitioners, did not involve

the application of state criminal law, but rather the question of

whether Montana had a duty under state law to inspect a workplace

where the plaintiff was injured or whether that duty was superseded by

federal law. That case is therefore irrelevant to the question of the pre-

emption of state criminal law.

sphere

16

CONCLUSION

For all the foregoing reasons, the Petition for a Writ of

Certiorari should be denied.

Dated: New York, N.Y.

January 28, 1991

Respectfully submitted,

CHARLES J. HYNES ROBERT ABRAMS

District Attorney Attorney General

Kings County State of New York

JAY M. COHEN O. PETER SHERWOOD

SHULAMIT ROSENBLUM Solicitor General

Assistant District Attorneys

210 Joralemon Street

Brooklyn, New York 11201

(718) 802-2831 NANCY STEARNS*

Assistant Attorney General

120 Broadway

New York, New York 10271

(212) 341-2453

*Counsel of Record

LAWRENCE S. KAHN

Deputy Solicitor General

Counsel for Respondent