On Appeal from the United States District Court for the Middle District of PennsylvaniA - Scranton (D.C. Civil Nos. 85-1027 and 85-1028).
Before GIBBONS, WEIS, and SLOVITER, Circuit Judges.
This is an appeal from a final summary judgment in consolidated actions challenging the constitutionality of the Pennsylvania Worker and Community Right-to-Know Act (the Act), 35 Pa. Stat. Ann. tit. 35, §§ 7301-7320 (Purdon Supp. 1986), and seeking injunctive relief against its enforcement. The plaintiffs*fn1 content that the Act is preempted by the federal Occupational Safety and Health act of 1970, 29 U.S.C. §§ 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*fn2 are state officials and a state department charged with the enforcement of the Act. Certain labor unions and environmental groups were permitted to intervene*fn3 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.*fn4 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*fn5 by the OSH 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 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 provides 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*fn6 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 field 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. 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 facts 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.
The Pennsylvania Act is substantially similar although not identical to the New Jersey Worker and Community right to Know Act, N.J. Stat. Ann. §§ 34:5A-1 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.
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 circumstance (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 this section discloses that the Pennsylvania legislature 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 proving for the identification, labeling or providing of information concerning hazardous substances and is intended to supplement such Federal regulation in the interest 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 the 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:
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 ...