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New Jersey Chamber of Commerce v. Hughey

filed: February 28, 1989.

NEW JERSEY CHAMBER OF COMMERCE, CHEMICAL INDUSTRY COUNCIL OF NEW JERSEY, NEW JERSEY BUSINESS AND INDUSTRY ASSOCIATION, CHEMICAL SPECIALTIES MANUFACTURERS ASSOCIATION, INC., MERCK & CO., INC., MAGNESUIM ELEKTRON, INC., CP CHEMICALS INC., CHEM-MARK, INC., EXXON CHEMICALS AMERICAS, A DIVISION OF EXXON CORPORATION, SCHERING CORPORATION, ESSEX CHEMICAL CORPORATION AND INGERSOLL-RAND COMPANY, AND SHELL CHEMICAL COMPANY, A DIVISION OF SHELL OIL COMPANY, NEW JERSEY STATE CHAMBER OF COMMERCE, CHEMICAL INDUSTRY COUNSEL OF NEW JERSEY; NEW JERSEY BUSINESS AND INDUSTRY ASSOCIATION; CHEMICAL SPECIALTIES MANUFACTURERS ASSOCIATION, INC.; MERCK & CO., INC.; MAGNESIUM ELEKTRON, INC., EXXON CHEMICAL AMERICAS, A DIVISION OF EXXON CORPORATIONS; INGERSOLL-RAND COMPANY; AND SHELL CHEMICAL COMPANY, A DIVISION OF SHELL OIL COMPANY, APPELLANTS IN NO. 88-5283
v.
ROBERT E. HUGHEY, COMMISSIONER OF ENVIRONMENTAL PROTECTIVE; J. RICHARD GOLDSTEIN, M.D., COMMISSIONER OF HEALTH AND WILLIAM VAN NOTE, ACTING COMMISSIONER OF LABOR AND THE STATE OF NEW JERSEY, APPELLEES IN NO. 88-5283; FRAGRANCE MATERIALS ASSOCIATION OF THE UNITED STATES, FLAVOR AND EXTRACT MANUFACTURE'S ASSOCIATION, BUSH BOAKE ALLEN, INC. FRAGOCO, INC., FIRMENICH, INC., INTERNATIONAL FLAVORS AND FRAGRANCES, INC., ISOGENICS, INC., H.J. KOHNSTAMM & CO., INC., V. MANE FILS, INC., NOVILLE ESSENTIAL OIL COMPANY, INC., POLAROME MANUFACTURING CORP., ROURE BERTRAND DUPONT, INC. TAKASAGO USA INC., UNGERER & CO., AND UNIVERSAL FRAGRANCE CORPORATION, APPELLANTS IN NO. 88-5332 V. WILLIAM VAN NOTE, ACTING COMMISSIONER FOR THE STATE OF NEW JERSEY; J. RICHARD GOLDSTEIN, COMMISSIONER OF HEALTH FOR THE STATE OF NEW JERSEY; ROBERT E. HUGHEY, COMMISSIONER OF ENVIRONMENTAL PROTECTION FOR THE STATE OF NEW JERSEY, APPELLEES IN NO. 88-5332 AND JOSEPH H. RODRIGUEZ, PUBLIC ADVOCATE OF THE STATE OF NEW JERSEY; NEW JERSEY STATE INDUSTRIAL UNION COUNCIL, AFL-CIO (IUC); CITIZEN ACTION OF NEW JERSEY; PHILADELPHIA AREA PROJECT ON OCCUPATIONAL SAFETY & HEALTH (PHILAPOSH); NEW JERSEY ENVIRONMENTAL LOBBY; NEW JERSEY STATE FIREMEN'S MUTUAL BENEVOLENT ASSOCIATION (FMBA); INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, NEW JERSEY AFL-CIO (IAFF); COMMUNICATION WORKERS OF AMERICA, & GLASS WORKERS INTERNATIONAL UNION, AFL-CIO, LOCAL 514-G; PENNSYLVANIA FEDERATION BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, AFL-CIO; COALITION AGAINST TOXICS; LEAGUE OF CONSERVATION VOTERS (NEW JERSEY); STUDENT PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY (N.K. PIRG); ENVIRONMENTAL ACTION (WASHINGTON, D.C.); LEAGUE OF WOMEN VOTERS OF NEW JERSEY; SIERRA CLUB (NEW JERSEY); AMERICAN LUNG ASSOCIATION OF NEW JERSEY; NEW JERSEY TENANTS ORGANIZATION (NJTO); NEW JERSEY ASSOCIATION OF COUNTY HEALTH OFFICERS; AND NEW JERSEY HEALTH OFFICERS ASSOCIATION, DEFENDANT-INTERVENORS IN NO. 88-5332



On Appeal From the United States District Court for the District of New Jersey, D.C. Civil Nos. 84-3255 and 84-3892.

Higginbotham, Becker and Greenberg, Circuit Judges.

Author: Becker

Opinion OF THE COURT

BECKER, Circuit Judge.

This appeal presents the question whether the container labeling provisions of the New Jersey Worker and Community Right to Know Act, N.J. Stat. Ann. § 34:5A-14 (West 1988) ("Right to Know Act") are preempted by the Occupational Safety and Health Act of 1970, Pub. L. No. 91-596, 84 Stat. 1590 (1970) (codified at 29 U.S.C. §§ 651-678 (1982 & Supp. IV 1986) ("OSH Act") and the Hazard Communication Standard, 29 C.F.R. § 1910.1200 (1988), promulgated by the Occupational Safety and Health Administration ("OSHA") thereunder. Plaintiff-appellants New Jersey State Chamber of Commerce and Fragrance Materials Association, contending that the broad container labeling provisions of the Right to Know Act are preempted by the OSH Act and the federal standard, sought declaratory and injunctive relief in the district court. Named as defendants were various New Jersey officials charged with implementing the Right to Know Act.

In New Jersey State Chamber of Commerce v. Hughey, 774 F.2d 587 (3d Cir. 1985) ("Hughey I"), we held that a part of these container labeling provisions, i.e. that part relating to the labeling of workplace hazards in the manufacturing sector, was expressly preempted by the OSH Act. However, we also remanded the case to the district court to determine whether the container labeling provisions, to the extent that they were not expressly preempted, were nevertheless impliedly preempted because, due to the confusion allegedly engendered by the existence of multiple labelling systems, they "in fact stand as an obstacle to the accomplishment of the purposes of the federal standard." 774 F.2d at 596. After a trial at which the parties presented evidence on this issue, the district court found that the New Jersey Act was not an obstacle to the accomplishment of the purposes of the federal standard and consequently held that the Act was not impliedly preempted by the OSH Act or OSHA's regulations. We stayed this judgment pending plaintiffs' appeal.

The Right to Know Act has separate provisions requiring the labeling of containers that contain hazardous chemicals (section 14(a)) and containers that contain any chemicals (section 14(b)). The latter provision is the so-called universal labeling provision. See N.J. Stat. Ann. § 34:5A-14. Plaintiffs present both express and implied preemption arguments. With respect to express preemption, plaintiffs argue, in the alternative, that (1) Hughey I held that the so-called universal container labeling provision of the New Jersey Act is expressly preempted by the federal standard; (2) Hughey I did not reach the question whether this provision of the New Jersey Act was expressly preempted and that we should so hold; or (3) Hughey I held that this provision was not expressly preempted but we should reexamine that holding because of subsequent amendments to the OSHA Hazard Communication Standard. The amendments to OSHA's regulations, however, were minimal, and plaintiffs' argument that this panel is free to reexamine Hughey I's holding is frivolous. Moreover, we read Hug hey I as holding that the universal labeling provision was not expressly preempted.

With respect to implied preemption, plaintiffs contend that the district court erred in its finding that the Right to Know Act would not stand as an obstacle to the accomplishment of the purposes of the federal standard. However, we do not think the finding of the district court clearly erroneous. We therefore affirm.

I. THE ALLEGEDLY CONFLICTING STATUTES

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

Section 14 of the New Jersey Right to Know Act, N.J. Stat. Ann. § § 34:5A-14, requires employers to label certain chemical containers.*fn1 Section 14(a) provides that "every employer shall have until October 30, 1985" to label containers "containing a hazardous substance." A "hazardous substance" is defined as any substance on the New Jersey Department of Health's "workplace hazardous substance list," which consists of (1) "any substance . . . regulated by" OSHA under 29 C.F.R. part 1910, subpart z; (2) "any environmental hazardous substance"; and (3) "any other substance which the Department [of Health] . . . determines poses a threat to the health or safety of an employee." N.J. Stat. Ann. §§ 34:5A-3(m), 34:5A-5(a). An "environmental hazardous substance" is defined as any substance on the New Jersey Department of Environmental Protection's "environmental hazardous substance list," which consists of substances which, when "used, manufactured, stored, packaged, . . . disposed of or released into the environment of [New Jersey], . . . may be linked to the incidence of cancer; genetic mutations; physiological malfunctions . . . and other diseases; or which . . . may pose a threat to the public health and safety." N.J. Stat. Ann. §§ 34:5A-3(i), 34:5A-3(j), 34:5A-4(a).

Section 14(a) thus requires hazardous substance labeling with respect to both environmental hazardous substances and workplace hazardous substances that are not environmental hazardous substances. Section 14(a) requires the label to include the "chemical name and Chemical Abstracts Service number of the hazardous substance or the trade secret registry number assigned to the hazardous substance."*fn2

Section 14(b) is considerably broader than section 14(a) with respect to the containers to which it applies. Section 14(b) requires that by August 29, 1986 (two years after the effective date of the Act), every employer shall label "every container at his facility" unless the container falls into one of a number of statutory exclusions. Exclusions aside, the universal labeling requirements of section 14(b) apply to all chemicals, whether hazardous or nonhazardous. If a container contains a mixture of chemicals, an employer must ensure that the label identifies the chemical names and Chemical Abstracts Service numbers or the trade secret registry numbers of the "five most predominant substances contained in the mixture," although the presence of a chemical need not be recorded on the label if it constitutes "less than 1% of a mixture unless the substance is present at the facility in an aggregate amount of 500 pounds or more." Section 14(b)'s label content requirements for each chemical are essentially identical to section 14(a)'s requirements; the only difference is that under section 14(b) employers may substitute the common name for the chemical name with respect to those substances that the Department of Health has determined "are widely recognized by their common names." N.J. Stat. Ann. § 34:5A-14(d).

B. The OSH Act and the OSHA Regulations

Section 6(b)(7) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 655(b)(7), and its implementing regulations, 29 C.F.R. § 1910.1200, require that employers provide information to their employees concerning hazardous chemicals. Chemical manufacturers are required to develop a material safety data sheet that contains detailed information about each hazardous chemical they produce. Employers using these hazardous chemicals receive the material safety data sheets from the manufacturers and must ensure that they are readily accessible to employees. 29 C.F.R. § 1910.1200(g). Employers must train their employees to detect the presence or release of a hazardous chemical in the work area, inform them of the physical and health hazards of work area chemicals, and train them in the measures necessary to protect themselves from these chemical hazards. Id. § 1910.1200(h).

Employers must also label containers of hazardous chemicals with the identity of the hazardous chemicals and appropriate hazard warnings. Id. § 1910.1200(f). "Identity" is defined as "any chemical or common name" indicated on the material safety data sheet for the chemical. Id. § 1910.1200(c). "Hazardous chemical" is defined as any chemical that is a physical hazard or a health hazard. Id. Chemical manufacturers must evaluate the hazards of the chemicals they produce and must treat as hazardous chemicals regulated by 29 C.F.R. part 1910, subpart z. Id. § 1910.1200(d). While the federal hazard communication standard originally applied only to the manufacturing sector, see Hazard Communication, 48 Fed. Reg. 53,280 (1983) (final rule), OSHA has subsequently amended the federal standard so that it covers ...


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