Associated Industries of Massachusetts v. Snow, s. 89-1775
| Decision Date | 09 January 1990 |
| Docket Number | 89-1798,Nos. 89-1775,s. 89-1775 |
| Citation | 898 F.2d 274 |
| Parties | , 14 O.S.H. Cas.(BNA) 1485, 1990 O.S.H.D. (CCH) P 28,854 ASSOCIATED INDUSTRIES OF MASSACHUSETTS, Plaintiff, Appellant, v. James F. SNOW, Commissioner of the Massachusetts Department of Labor and Industries, Defendant, Appellee. ASSOCIATED INDUSTRIES OF MASSACHUSETTS, Plaintiff, Appellee, v. James F. SNOW, Commissioner of the Massachusetts Department of Labor and Industries, Defendant, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Patrick W. Hanifin, with whom Wayne S. Henderson and the New England Legal Foundation, Boston, Mass., were on brief, for the Associated Industries of Massachusetts.
Despena Fillios Billings, Asst. Atty. Gen., with whom James M. Shannon, Atty. Gen., Boston, Mass., was on brief, for the Com. of Mass.
Donald J. Siegel, Shelley B. Kroll, and Segal, Roitman & Coleman, Boston, Mass., were on brief, for Massachusetts Public Health Ass'n; American Lung Ass'n of Massachusetts; Massachusetts Public Interest Research Group; Nat. Toxics Campaign; League of Women Voters of Massachusetts; Cambridge Hosp. Occupational and Environmental Health Center; Occupational/Environmental Health Service of Brigham and Women's Hospital; Massachusetts Coalition for Occupational Safety and Health; Occupational Health Service of Massachusetts Respiratory Hosp.; Service Employees Intern. Union, AFL-CIO; Massachusetts General Hosp. Occupational Medicine Clinic; Massachusetts Laborers' Dist. Council; Sheet Metal Workers Intern. Ass'n, Local No. 17; Intern. Ass'n of Heat and Frost Insulators and Asbestos Workers, Local No. 6; NECNAC; and Massachusetts Building Trades Council, amicus curiae.
Before SELYA, Circuit Judge, ALDRICH and BOWNES, Senior Circuit Judges.
These appeals involve the interplay between a state's exercise of its police powers and the federal government's regulation of occupational safety and health issues. They arise from a final summary judgment upholding most of the Commonwealth of Massachusetts' asbestos abatement statute and regulations (the Massachusetts standards) 1 against a federal preemption challenge brought by the Associated Industries of Massachusetts (AIM). Plaintiff-appellant AIM claims that the Massachusetts standards are preempted by the federal Occupational Safety and Health Act of 1970 (OSH Act) 2 and certain regulations promulgated under that Act. 3
As AIM points out, the issue is not whether asbestos is dangerous. It is. Although the fibrous mineral has numerous uses, particularly in building construction, it has been identified as a significant public health threat. Asbestos's tiny, indestructible fibers can crumble into powder and become airborne, travelling in the open air or through a building's ventilation system. When inhaled, asbestos dust lodges permanently in a person's lungs. Exposure may induce deadly diseases such as asbestosis, a scarring of the lungs that causes shortness of breath and often death, and mesothelioma, an incurable cancer of the abdominal lining. In the 1960s shipyard workers in Quincy, Massachusetts were among the first studied victims of asbestos-related diseases.
In 1975 the Massachusetts Legislature created a commission to assess the public health hazard of asbestos exposure in schools and public buildings and to investigate and prevent exposure to workers. 1975 Mass. Acts 58. The Commonwealth's Department of Labor and Industries gradually assumed the duties of the Asbestos Commission and, in 1987, at the direction of the Massachusetts Legislature, the Department promulgated the detailed regulations challenged here. See Mass.Regs.Code tit. 453, Secs. 6.00-6.17, 6.91-.93.
The federal Occupational Safety and Health Administration (OSHA) has also issued regulations relating to asbestos abatement. The Revised Standard for General Industry, 29 C.F.R. Sec. 1910.1001, and the Revised Standard for the Construction Industry, 29 C.F.R. Sec. 1926.58 (the Asbestos Standards), establish permissible asbestos exposure levels for workers and provide guidelines for employee training and work practices. OSHA's General Industry Hazard Communication Standard, 29 C.F.R. Sec. 1910.1200 and Construction Industry Hazard Communication Standard, 29 C.F.R. Sec. 1926.59 (the Hazard Communication Standards), pertain to the communication of information to workers about chemical hazards, including asbestos hazards, in the work place.
The chief difference between the two sets of standards is that the Massachusetts standards are more stringent. OSHA outlines general topics about which workers should be trained; Massachusetts sets out a detailed training curriculum, specifies who must be trained and who may do the training, and establishes a certification and licensing scheme linked to the training requirements. Massachusetts requires employers to give the Department of Labor and Industries advance notice of non-emergency projects involving any more than specified small amounts of asbestos exposure. OSHA sets a maximum "permissible exposure limit" and an "action level" and identifies certain work practices triggered at each level; Massachusetts requires the same, and other specified procedures, at a lower threshold of exposure. Finally, OSHA requires workers to follow certain rules regarding the use of respirators, protective clothing and medical monitoring; Massachusetts duplicates the OSHA clothing and monitoring requirements but at lower exposure levels, and calls for the use of different kinds of respirators.
On September 21, 1988, AIM brought suit for declaratory and injunctive relief in the United States District Court for the District of Massachusetts against James F. Snow, as Commissioner of the Commonwealth's Department of Labor and Industries. 4 On March 14, 1989 AIM moved for summary judgment or, in the alternative, for a preliminary injunction staying the April 1, 1989 deadline for training of "asbestos associated project workers." See Mass.Regs.Code tit. 453, Sec. 6.03(7). The Commonwealth also moved for summary judgment. When the district court (Tauro, J.) denied AIM's request for a preliminary injunction, the organization filed an interlocutory appeal to the First Circuit. This court ordered expedited briefing of the issues and set a May 3 date for argument. We denied AIM's motion for an injunction pending appeal. On April 19, the parties negotiated a stipulation limiting the number of workers who would have to be trained under the Massachusetts standard, and AIM agreed to dismissal of its interlocutory appeal.
On July 12, 1989, 717 F.Supp. 951, the district court issued its order on the parties' cross motions for summary judgment, upholding the Massachusetts statute and all but one of the regulations. It adopted the rule, formulated by the Second Circuit in a similar case, that state standards are not expressly preempted by the OSH Act or OSHA standards if they have a "legitimate and substantial purpose apart from protecting asbestos workers." Memorandum of the district court at 5 (quoting Environmental Encapsulating Corp. v. New York City, 855 F.2d 48, 57 (2d Cir.1988)). Dividing the challenged regulations into three categories (the licensure, certification and training requirements, the work practice requirements and the worker protection requirements), the district court found that only the worker protection requirements, Mass.Regs.Code tit. 453, Sec. 6.15, which govern the use of disposable protective clothing and respirators, and medical monitoring of workers, failed this test. The district court further ruled that the remaining Massachusetts standards, although more stringent than the federal ones, are not an obstacle to the accomplishment of Congress's objectives and are therefore not impliedly preempted. AIM appealed and Massachusetts cross-appealed on the disposable clothing ruling. Massachusetts did not appeal the ruling that the respirator and medical monitoring requirements are preempted.
Under the Supremacy Clause of Article VI of the United States Constitution, federal law may preempt state law in a variety of ways. When acting within constitutional limits, Congress may preempt state law by so stating in express terms. Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977). Absent express language, preemption may be implied where federal legislation is so comprehensive as to leave no room for supplemental legislation. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). Even where Congress has not completely displaced state regulation, state law may be preempted to the extent that it actually conflicts with federal law. Such a conflict occurs either because compliance with both is physically impossible, or because state law stands as an obstacle to the accomplishment of the full objectives of Congress. See California Federal Savings & Loan Ass'n v. Guerra, 479 U.S. 272, 280-81, 107 S.Ct. 683, 689, 93 L.Ed.2d 613 (1987) (citing cases); Hillsborough County, Fla. v. Automated Medical Laboratories, Inc., 471 U.S. 707, 712-13, 105 S.Ct. 2371, 2374-75, 85 L.Ed.2d 714 (1985); Securities Industry Ass'n v. Connolly, 883 F.2d 1114, 1117-18 (1st Cir.1989); French v. Pan Am Express, Inc., 869 F.2d 1, 2 (1st Cir.1989). In determining whether a state statute is preempted by federal law and therefore invalid under the Supremacy Clause, our task is to ascertain the intent of Congress. California Federal Savings & Loan Ass'n, 479 U.S. at 280, 107 S.Ct. at 689.
AIM claims that the Massachusetts standards are expressly preempted by language in Section 18 of the OSH Act, 29 U.S.C. Sec. 667, and impliedly preempted because they "interfere with the exclusive federal regulatory scheme." We examine these claims in order.
Section 18 of the OSH Act governs the...
To continue reading
Request your trial
-
Portland Pipe Line Corp. v. City of S. Portland
...the relevance of the purpose of the state law is in the occupational safety and health field. In Associated Industries of Massachusetts v. Snow , 898 F.2d 274 (1st Cir. 1990), the First Circuit considered state asbestos training, certification, and exposure regulations very similar to the f......
-
Weber v. Heaney, Civ. 4-91-1009.
...respect to," as found in section 453, necessarily indicate an intent to preempt broadly. For example, in Associated Indus. of Massachusetts v. Snow, 898 F.2d 274 (1st Cir. 1990), the United States Court of Appeals for the First Circuit held that federal asbestos abatement regulations promul......
-
Philip Morris Inc. v. Harshbarger, s. 97-8022
...behind a state law, but upon the law itself and any connection it might have with advertising activities. See Associated Indus. v. Snow, 898 F.2d 274, 279 (1st. Cir.1990) ("Rather than attempt to divine the Massachusetts Legislature's intent in enacting its ... legislation, we look instead ......
-
Gade v. National Solid Wastes Management Association
...have found the OSH Act to have a much narrower pre-emptive effect on "dual impact" state regulations. See Associated Industries of Massachusetts v. Snow, 898 F.2d 274, 279 (CA1 1990); Environmental Encapsulating Corp. v. New York City, 855 F.2d 48, 57 (CA2 1988); Manufacturers Assn. of Tri-......
-
Intentional disregard: remedies for the toxic workplace.
...(NIOSH) has listed more than 2,000 substances that at least partially cause cancer. Id. at 6. (99) See Associated Indus. of Mass v. Snow, 898 F.2d 274, 281 (1st Cir. 1990) (holding that the state can protect families of asbestos workers by requiring workers to wear disposable protective clo......