Associated Industries of Massachusetts v. Snow
| Citation | 717 F. Supp. 951 |
| Decision Date | 12 July 1989 |
| Docket Number | Civ. A. No. 88-2143-T. |
| Parties | ASSOCIATED INDUSTRIES OF MASSACHUSETTS, Plaintiff, v. James F. SNOW, Commissioner of the Department of Labor and Industries, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Patrick W. Hanifin and Wayne S. Henderson, New England Legal Foundation, Boston, Mass., for plaintiff.
Despena F. Billings, Asst. Atty. Gen., and James Shannon, Atty. Gen., Boston, Mass., for defendant.
Plaintiff, Associated Industries of Massachusetts ("AIM"), brought this action in an attempt to invalidate a state statute, and the regulations promulgated under its authority, that were designed to regulate asbestos abatement throughout the Commonwealth. This court denied plaintiff's motion for a preliminary injunction at a hearing held March 31, 1989. Both parties have now filed motions for summary judgment.
Summary judgment may be granted where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Here, there are no material facts in dispute, and the questions presented are of a purely legal nature. Accordingly, summary judgment is appropriate.
The horrors associated with asbestos have become all too familiar in recent years. To summarize briefly, asbestos is an indestructible, fibrous material used commonly in building construction. Over time, the asbestos particles deteriorate into a dust or powder that can travel long distances through the air. Once airborne, the particles are extremely dangerous to anyone who may inhale them. The known dangers of asbestos poisoning include severe lung scarring, various forms of lung cancer, and gastrointestinal cancer. See Affidavits of Smuts and Christiani. The Occupational Safety and Health Administration ("OSHA") has stated that it is "aware of no instance in which exposure to a toxic substance has more clearly demonstrated detrimental health effects on humans than has asbestos exposure." 51 Fed.Reg. 22615 (1986).
It was in response to these health and safety concerns that the federal government and many state and local governments took action in an attempt to curtail further asbestos-related harm. And it is the interplay between two of these regulatory schemes that provides the basis for the present action.
Plaintiff's primary contention is that M.G.L. ch. 149, §§ 6A-6F and the corresponding regulations promulgated by the Department of Labor and Industries — 453 C.M.R. §§ 6.00-6.17 (the "DLI regulations")—are preempted by certain federal OSHA standards.1
Whether a state law is preempted by federal law, and thus invalid under the Supremacy Clause of the Constitution, is determined solely by the intent of Congress. That intent may be ascertained in any one of three ways. First, Congress may exhibit its intent to preempt certain state laws in express terms. Second, Congress' intent may be implied where the federal regulatory scheme is so comprehensive so as to leave no room for supplemental regulation by the states. And third, Congress' intent to preempt may also be implied where the execution of the state regulatory scheme actually comes into conflict with the execution of the federal regulatory scheme. California Savings & Loan Assn. v. Guerra, 479 U.S. 272, 280-281, 107 S.Ct. 683, 689-90, 93 L.Ed.2d 613 (1987) (plurality opinion) (citing cases).
Express Preemption:
In order to expressly preempt state law, Congress must declare its preemptive purpose on the face of the statute. See e.g. Jones v. Ruth Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1971). The Occupational Safety and Health Act ("OSH Act") was enacted "to assure so far as possible every working man and woman in the nation safe and healthful working conditions." 29 U.S.C. § 651(b). In accordance with that objective, Congress included an express preemption provision in the OSH Act which states:
Nothing in this chapter shall prevent any State agency or court from asserting jurisdiction under State law over any occupational safety and health issue with respect to which no standard is in effect under ... this title unless the State plan is first submitted to OSHA.
29 U.S.C. § 667 ("§ 18" of the OSH Act). The state regulatory scheme in question here was never submitted to OSHA. Accordingly, the express preemption issue presented here is whether Massachusetts has regulated an "occupational safety and health issue with respect to which" an OSHA standard is already in effect.
Instead of looking at each and every occupational safety and health standard promulgated under the OSH Act, courts which have addressed the identical express preemption question have essentially conceded that OSHA has occupied the field of occupational health and safety. Accordingly, those courts have framed the preemptive effect of § 18 in rather broad terms. See e.g. New Jersey State Chamber of Commerce v. Hughey, 774 F.2d 587, 593 (3d Cir.1985). The breadth of those terms, however, has been the subject of a split between the Second and Third Circuits. The First Circuit has not yet added its voice on the issue.
The Third Circuit has held that express preemption of state asbestos regulations by OSHA occurs whenever the "primary purpose" of a state regulation is worker health and safety. See Manufacturers Assn. of Tri-County v. Knepper, 801 F.2d 130, 137 (3d Cir.1986). The Second Circuit, however, chose a somewhat less restrictive formulation of OSHA asbestos preemption. It held that:
In order to avoid preemption the City must demonstrate only that for each of the DEP requirements there is a legitimate and substantial purpose apart from protecting asbestos workers. If this is demonstrated, the particular requirement is not a state `occupational safety and health standard' preempted by § 18.
Environmental Encapsulating Corp. v. New York City, 855 F.2d 48, 57 (2d Cir. 1988) (emphasis added).
This court chooses to follow the wisdom of the Second Circuit in this regard. The Supreme Court has recently stated that there is a "presumption that state or local regulation of matters related to health and safety is not invalidated under the Supremacy Clause." Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 715, 105 S.Ct. 2371, 2376, 85 L.Ed.2d 714 (1985). With this in mind, this court believes that the somewhat less restrictive approach of the Second Circuit is justified. Accordingly, only the DLI regulations that do not have a "legitimate and substantial purpose apart from protecting asbestos workers" are expressly preempted by OSHA standards. See also Note, "The Extent of OSHA Preemption of State Hazard Reporting Requirements," 88 Colum.L. Rev. 630, 640 (1988) (authored by John J. Manna, Jr.) ("it is unlikely that Congress intended to preempt beyond the workplace.").
The Challenged Massachusetts Regulatory Scheme:
The express purpose of the Massachusetts regulatory scheme is for the "protection of the general public and the occupational health and safety of workers engaged in the use, handling, removal or disposal of asbestos or material containing asbestos." M.G.L. ch. 149, § 6C (as amended March 5, 1989).2 In accordance with this and other enabling language, certain regulations were promulgated by the Department of Labor and Industries, all of which were challenged in this action. The challenged regulations can be broken down into three categories: 1) the Licensure, Certification, and Training Requirements; 2) the Work Practice Requirements; and 3) the Worker Protection Requirements.
These regulations contain comprehensive guidelines for licensure, certification, and training of various people doing asbestos abatement work (workers, supervisors, consultants, trainers, and inspectors). They also include notification and reporting requirements to keep track of all asbestos work being done in the Commonwealth, in an attempt to facilitate enforcement of the requirements.3 The focus of these regulations is on public safety — most of the requirements are designed to minimize the agitation and escape of otherwise dormant asbestos particles by ill-trained workers. See Affidavit of Martin ¶¶ 1-13; Affidavit of Cooper ¶ 9. Indeed, much of the training curriculum was adopted directly from the federal Environmental Protection Agency's Contractor Accreditation Plan developed in accordance with the Asbestos Emergency Response Act of 1986 ("AHERA") 15 U.S.C. §§ 2641-2654. There is no dispute that this underlying plan was designed to protect the public from environmental dangers. Compare 40 C.F.R. § 763, Subpt. E, App. C with 453 C.M.R. § 6.92, App. (referred to in 453 C.M.R. § 6.09(4)(a)). Accordingly, the DLI Licensure, Certification, and Training regulations have a "legitimate and substantial purpose apart from protecting asbestos workers," and, therefore, are not expressly preempted by OSHA standards.
These regulations require numerous procedures to be carried out during asbestos abatement. The specific requirements are as follows:
A) Work Site Preparation: i) exclusion of nonessential personnel from the work site; ii) posting of warning signs around the work site; iii) shutdown of the building's ventilation system (heating, air conditioning etc.); iv) removal of movable items from the work site; v) covering of all non-movable items; vi) insulation of the work area by the sealing of windows and doors etc. — creating a "critical barrier;" vii) covering floors and walls; and viii) grounding of electrical cords (to prevent fires);
B) Decontamination: i) setting up decontamination facilities adjacent to the work site with a changing room ("clean room") and a shower; ii) requiring workers to shower and change clothes before leaving the work site; iii) equipment decontamination; iv)...
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