801 F.2d 824 (6th Cir. 1986), 86-3191, Ohio Mfrs. Ass'n v. City of Akron
|Citation:||801 F.2d 824|
|Party Name:||1986-1987 O.S.H.D. ( 27,703 OHIO MANUFACTURERS' ASSOCIATION; Akron Selle Company, Plaintiffs-Appellants, v. CITY OF AKRON, State of Ohio; Health Commission, City of Akron; Health Department, City of Akron; C. William Keck, as Director of Health of the City of Akron; Harold K. Stubbs, as Director of Law of the City of Akron, Defendants-Appellees.|
|Case Date:||September 17, 1986|
|Court:||United States Courts of Appeals, Court of Appeals for the Sixth Circuit|
Argued June 10, 1986.
Rehearing and Rehearing En Banc Denied Oct. 31, 1986.
Duke W. Thomas, C. William O'Neill (argued), John W. Hoberg, Marcia J. Mengel, Columbus, Ohio, for plaintiffs-appellants.
Secretary of Labor Nathaniel I. Spiller, Mary-Helen Mautner, U.S. Dept. of Labor, Washington, D.C., for amicus curiae plaintiffs-appellants.
Janice E. Crossland (argued), Asst. Dir. of Law, Akron, Ohio, for defendants-appellees.
Paul J. Malesick, Salvatore J. Falletta, Akron, Ohio, for amicus curiae defendants-appellees.
Before MARTIN and GUY, Circuit Judges, and BROWN, Senior Circuit Judge.
RALPH B. GUY, JR., Circuit Judge.
Plaintiffs appeal the district court's judgment 628 F.Supp. 623 in favor of defendants entered after the court determined that the Akron "Right to Know" Ordinance, regulating hazardous and toxic substances in the workplace, was not preempted by the Occupational Safety and Health Act (OSH Act) of 1970, 29 U.S.C. Sec. 651, et seq., or the Occupational Safety and Health Agency's (OSHA) Hazard Communication Standard, 29 C.F.R. Sec. 1910.
Plaintiffs are the Ohio Manufacturers' Association, a non-profit membership association representing 61 employers in the City of Akron, classified within Standard Industrial Classification (SIC) Codes 20 through 39, and Akron Selle Company, an Akron contract metal stamping company employing 20 persons and classified within SIC Code 34. 1 Defendants are the City of Akron; Akron's Health Commission; Akron's Health Department; C. William Keck, M.D., Director of Health; and Harold K. Stubbs, Director of Law. The latter four defendants share responsibility for the enforcement of the ordinance. Plaintiffs brought suit, claiming that the Akron ordinance is preempted by federal law. 2 Although we reject many of plaintiffs' contentions, as did the trial court, we nonetheless find preemption and reverse.
The Akron Right to Know Ordinance
Akron's Right to Know Ordinance, enacted in December of 1984, regulates the presence of hazardous and toxic substances in the workplace. The purposes of the ordinance are twofold: to protect workers by requiring employers to provide information to their employees and designated representatives about hazardous chemicals to which the employees may be exposed; and to protect public health officials, and the public in general, by requiring employers to provide information to the City's Fire Division and Health Department about the hazardous chemicals manufactured, used, or stored inside the workplace and the hazardous chemicals discharged from the workplace or stored as chemical waste.
The Akron Health Commission is charged with administration and enforcement of the ordinance. The commission is first directed to compile a master list of hazardous chemicals including all of the chemicals listed in (1) OSHA's list of Toxic or Hazardous Substances, at 29 C.F.R. Sec. 1910, Subpart Z; (2) the United States Department of Transportation's Hazardous Materials Table, 49 C.F.R. Sec. 172.101; (3) the American Conference of Governmental and Industrial Hygenists' list entitled "Threshold Limit Value for Chemical Substances and Physical Agents in the Workplace;" (4) the International Agency for Research on Cancer's sublist entitled "Substances found to have at least sufficient evidence of carcinogenicity in animals;" and (5) the National Toxicology Program's
list of chemicals published in the annual report on carcinogens.
Under the ordinance, employers are required to post signs notifying employees that they have a right to information from their employers regarding the toxic or hazardous effects of the chemicals and the circumstances under which these effects may be produced. Employers are also required to ensure that each container of hazardous chemicals in the workplace is labeled, tagged, or marked: (1) with the chemical name, if not a trade secret; (2) with the Department of Transportation's required labels for substances it regulates; (3) with a cancer warning for all materials that pose a cancer hazard; and (4) with warnings for all materials which pose a reproductive hazard.
The ordinance also imposes employer filing and reporting requirements. Each January, employers are ordered to file with the Health Department a list of all work areas where hazardous chemicals are manufactured, used, or stored, specifying by chemical name all such chemicals in each work area. Furthermore, employers must immediately report to the Health Department information concerning any spill, leak, discharge, or emission of any hazardous substance which is required to be reported to or filed with any federal or state agency under applicable law.
Employers are required to obtain or develop a material safety data sheet (MSDS) for each hazardous chemical which they manufacture, use, or store. Each MSDS must contain, among other things, the following information: (1) the identity used on the label and, except as necessary to protect trade secrets, whether the chemical is a single substance or a mixture which has been tested as a whole to determine its hazards, its chemical and common names; or, if the hazardous chemical is a mixture, the chemical and common names of all ingredients; and the chemical and common names of all ingredients set forth on the master list which have been determined to be physical hazards; (2) the physical and chemical characteristics of the hazardous chemical, including its potential for fire, explosion, and reactivity; (3) the known acute and chronic health effects of exposure to the hazardous chemical; (4) the primary route of entry and permissible exposure limit for hazardous chemicals; (5) any precautions for safe handling and use which are known to the employer or preparer; (6) any control measures which are known to the employer or preparer; and (7) emergency and first aid procedure. A MSDS is required to be updated within 90 days of the employer obtaining new and significant information regarding the health hazard of a chemical. Employees are entitled to be given a copy of a MSDS upon request.
The ordinance requires that employers maintain an employee training and education program designed to provide employees who may be exposed to hazardous substances or mixtures the information necessary to understand their hazards. Training must also include the hazard communication methods used by the employer, appropriate work practices, protective measures, emergency procedures, and the methods employees may use to receive information under the ordinance.
In addition to enforcing the ordinance, the commission is charged with the obligation of forwarding all information to the Fire Department pertinent to the performance of its duties. A provision also speaks to the protection of trade secrets.
The final substantive provision enumerates employee rights under the ordinance, including the employee's right to receive requested information, protection from discharge for filing a complaint, requests for inspection by the Health Commission, and the right to maintain a private cause of action for violations of the ordinance.
The OSH Act and The Hazard Communication Standard
Section 6 of the OSH Act directs the Secretary of Labor to promulgate occupational safety and health standards to further the purpose of the Act "to assure so far as possible every working man and
woman in the Nation safe and healthful working conditions...." 29 U.S.C. Sec. 651(b). To that end, the Secretary of Labor has established the Hazard Communication Standard, pursuant to 29 U.S.C. Sec. 655(b)(7), and set forth at 29 C.F.R. Sec. 1910. The relevant history of the promulgation of this standard began in 1974, when the National Institute for Occupational Safety and Health, an agency created by section 22 of the OSH Act, 29 U.S.C. Sec. 671, recommended that the Secretary promulgate a standard requiring employers to inform employees of potentially hazardous materials in the workplace. 47 Fed.Reg. 12095 (1982). Later that year the Secretary appointed an advisory committee to develop standards for implementation of the statutory provision requiring labels or other appropriate forms of warning. That advisory committee issued its report on June 6, 1975, recommending a classification of hazards, the use of warning devices such as labels and placards, disclosure of chemical data, and employee training programs. Id. at 12096.
On January 16, 1981, OSHA published a notice of proposed rulemaking entitled "Hazards Identification." 46 Fed.Reg. 4412-53. This initial proposal was withdrawn by the Secretary on February 12, 1981, for further consideration of regulatory alternatives. 46 Fed.Reg. 12214. On March 19, 1982, a notice of proposed rulemaking entitled "Hazard Communication" was published. 47 Fed.Reg. 12091.
The standard was published in its final form on November 25, 1983. 48 Fed.Reg. 53280. It requires that chemical manufacturers and importers "evaluate chemicals produced in their workplaces or imported by them to determine if they...
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