West Virginia Mfrs. Assoc. v. State of W. Va.

• Citation: 542 F. Supp. 1247
• Decision Date: 01 July 1982
• Docket Number: Civ. A. No. 81-2477.
• Court: U.S. District Court — Southern District of West Virginia
• Parties: WEST VIRGINIA MANUFACTURERS ASSOC., a nonprofit West Virginia corporation, Plaintiff, v. STATE OF WEST VIRGINIA and Lawrence Baker, Commissioner of Labor of the State of West Virginia, Defendants, United Steelworkers of America, AFLCIO-CIC and Paul Rusen, Director District 23, United Steelworkers of America, AFL-CIO-CIC, Defendant-Intervenor.

542 F. Supp. 1247

WEST VIRGINIA MANUFACTURERS ASSOC., a nonprofit West Virginia corporation, Plaintiff, v. STATE OF WEST VIRGINIA and Lawrence Baker, Commissioner of Labor of the State of West Virginia, Defendants, United Steelworkers of America, AFLCIO-CIC and Paul Rusen, Director District 23, United Steelworkers of America, AFL-CIO-CIC, Defendant-Intervenor.

Civ. A. No. 81-2477.

United States District Court, S. D. West Virginia, Charleston Division.

July 1, 1982.

COPYRIGHT MATERIAL OMITTED

George G. Guthrie, Spillman, Thomas, Battle & Klostermeyer, Robert B. King, Charleston, W. Va., for plaintiff.

Stanley Hostler, Charleston, for plaintiff-intervenor.

Leonard B. Knee, Asst. Atty. Gen., Environmental Task Force, Charleston, W. Va., for defendants.

MEMORANDUM OPINION

KIDD, District Judge.

Plaintiff, West Virginia Manufacturers Association, filed this civil action on November 18, 1981, seeking declaratory and injunctive relief against the State of West Virginia and her Commissioner of Labor. The complaint seeks a judgment declaring W.Va.Code § 21-3-18 (hereinafter "the Act") and the administrative regulations promulgated thereunder unconstitutional or void. Plaintiff also seeks injunctive relief prohibiting the defendants from enforcing the Act and administrative regulations. Defendants answered, inter alia, that the Act and regulations are not unconstitutional and therefore plaintiff should be denied all relief.

A hearing was conducted on plaintiff's Motion for Preliminary Injunction. Certain evidence was taken and the Court entertained extensive argument from all parties. At the conclusion of the hearing, the Court, on December 15, 1981, entered a Temporary Restraining Order enjoining and restraining defendants from enforcing the Act and regulations. On December 18, 1981, the Court entered its Opinion and Order denying plaintiff's "Motion for Preliminary Injunction and Dissolving Temporary Restraining Order", with such dissolution to become effective on December 21, 1981 as of 5:00 p. m. "Plaintiff's Motion for Injunction Pending Appeal" was denied by separate order entered that same day. On December 21, 1981, plaintiff filed its "Notice of Appeal" from the Court's order denying preliminary injunctive relief; plaintiff also filed that day a Motion for Injunction Pending Appeal and appeared before United States Circuit Judge K. K. Hall who granted that motion. Judge Hall's order does not affect the jurisdiction of this Court to rule upon the merits. On March 13, 1982, the Court again entertained oral argument from the parties. The matter has been fully briefed and has been submitted to the Court for decision.

Plaintiff challenges the Act and regulations on several grounds: (1) that the title to the Act is defective because it does not inform of criminal penalties which may be imposed; (2) that the Act is an unconstitutional delegation of legislative authority to the state's commissioner of labor; (3) that the Act has been preempted by the federal Occupational Safety & Health Act of 1970; (4) that the Act is void for vagueness under the Due Process Clause of the Fourteenth Amendment; and (5) that the Act unconstitutionally discriminates among employers and thus is a denial of equal protection. The Court will address the issues in the order just stated.

I. Defective Title

In Count IV of its complaint the plaintiff alleges that the Act is unconstitutional because the title of the Act fails to inform those subject to its provisions of criminal penalties which may be imposed for violations of the Act. This claim is based upon W.Va.Const. art. 6 § 30 which provides in part:

No act hereafter passed, shall embrace more than one object, and that shall be expressed in the title. But if any object shall be embraced in an act which is not so expressed, the act shall be void only as to so much thereof, as shall not be so expressed ...

The purpose of this constitutional provision is two-fold: to prevent concealment of the true purpose of an act from the public and the legislature and to advise the public and the legislature of the contents of the proposed act. See State ex rel. Davis v. Oakley, 156 W.Va. 154, 191 S.E.2d 610 (1972). The section is to be liberally construed in favor of the act and all doubt should be resolved in favor of the constitutionality of the act under attack. See generally, Chesapeake & O. R. R. v. Patton, 9 W.Va. 648 (1876).

The title under attack here reads "Hazardous chemical substances; notice to employees; reports to commissioner; penalties." Plaintiff argues the title is defective because "penalties" is insufficient to advise the public that the penalties are criminal in nature. Defendant argues that the title is sufficient notice under the West Virginia Constitution and would induce a person interested in the subject matter of the Act to read the Act itself. Both parties rely upon State ex rel. Myers v. Wood, 154 W.Va. 431, 175 S.E.2d 637 (1970).

In Myers, the fatally defective title made no mention whatsoever of the word "penalty". The title in question here clearly indicates that the Act contains "penalties" and the Court is of the opinion, applying the rule of liberal construction, that the title is sufficient to give notice to the legislators and, more particularly, to the public in a general way of what is contained in the statute. The title of the Act is sufficient to induce anyone interested in the subject matter to read the statute itself. The West Virginia Constitution requires no more.

II. Unconstitutional Delegation of Legislative Power to the Commissioner of Labor

Plaintiff complains that the Act unconstitutionally delegates legislative power to the Commissioner of Labor, primarily because the Act does not contain standards adequate to temper the grant of legislative authority and because the Act purports to give an administrative agency the power to make in futuro designations of a list and to make those designations be subject to criminal penalties. The portion of the Act under question here reads as follows:

(1) It is declared the policy of this State to require employers to disclose to employees the hazards of exposure in the work place to hazardous or toxic chemical substances and materials. For this purpose, the commissioner of labor shall establish and maintain, by rule or regulation, a list of chemical substances and materials which have been determined or are suspected to be hazardous or toxic to the health of employees who may be exposed to them in the course of employment. In establishing and maintaining such list, the commissioner may give consideration to any list made or hereafter made by the secretary of labor of the United States identifying or proposing to identify chemical substances and materials as hazardous or toxic, or setting standard levels of safe exposure thereto, as the same are published from time to time in the federal register. The commissioner shall publish and update at least annually, such list of substances and materials and shall include in the publication thereof, for each listed substance or material, any standard levels of safe exposure published by said secretary in the federal register, giving due consideration to any changes made or proposed by said secretary in the secretary's list of hazardous or toxic chemical substances and materials, or in any standard levels of safe exposure established or proposed from time to time by said secretary, as the same are published in the federal register.

(b) The commissioner shall make copies of such list prepared under this section available to any employer requesting the same: provided, that the commissioner shall limit such list to no more than six hundred such substances and materials to be selected from the lists included in 29 Code of Federal Regulations 1910.1000, Subpart Z, which the commissioner elects to include because of either frequency of use in the state, frequency of exposure or overexposure thereof to workers in the state, the seriousness of the effects of such exposure or other reason which the commissioner determines to be sufficient.

The plaintiff does not question the power of the legislature to delegate legislative authority in this area of the law but rather complains of inadequate guidelines. The general rule to be applied describes a proper delegation of authority to be on where the legislature has laid down a complete and definite declaration of policy and established objective standards or guidelines describing the subject matter or the field wherein the legislation shall apply. See generally 16 Am.Jr.2d Constitutional Law § 339. This general rule must be applied liberally since the constitutional powers of the legislature are particularly broad in matters concerning the health of the state's citizens. See State ex rel. Scott v. Conaty, 155 W.Va. 718, 187 S.E.2d 119 (1972). Both parties rely upon State v. Grinstead, 157 W.Va. 1001, 206 S.E.2d 912 (1974), and the Court finds Grinstead particularly instructive upon this issue.

In Grinstead, the defendant challenged the power of the Board of Pharmacy to expand a list of proscribed drugs by adding to the list substances developed and derived from barbituric acid or amphetamines or any substance which the state board, after investigation, had found and declared to be habit-forming because of its stimulant effect upon the central nervous system. The West Virginia Supreme Court of Appeals found this to be a lawful delegation of legislative authority, holding that the Dangerous Drugs Act, W.Va.Code § 16-8B-1(1)(a), (b) and (c), contained adequate standards and limitations to protect the delegation of legislative prerogatives. Grinstead, supra, 206 S.E.2d at 919. Similarly, the legislation challenged by plaintiff here also contains adequate standards and limitations and is not an unlawful delegation on that basis. The act restricts the Commissioner's discretion: he must draw his list of hazardous chemical...