Environmental Encapsulating Corp. v. City of New York

• Decision Date: 31 July 1987
• Docket Number: 87 Civ. 2604 (JMW).
• Citation: 666 F. Supp. 535
• Parties: ENVIRONMENTAL ENCAPSULATING CORP., Central Jersey Coating, Inc., Abatement International Ltd., Jack's Insulation Contracting Corp., and John's Insulation Inc., Plaintiffs, v. The CITY OF NEW YORK and the City of New York Department of Environmental Protection, Defendants.
• Court: U.S. District Court — Southern District of New York

666 F. Supp. 535

ENVIRONMENTAL ENCAPSULATING CORP., Central Jersey Coating, Inc., Abatement International Ltd., Jack's Insulation Contracting Corp., and John's Insulation Inc., Plaintiffs, v. The CITY OF NEW YORK and the City of New York Department of Environmental Protection, Defendants.

87 Civ. 2604 (JMW).

United States District Court, S.D. New York.

July 31, 1987.

COPYRIGHT MATERIAL OMITTED

Paul A. Gallay, Sharon E. Jaffe, of the firm Cole & Deitz, New York City, for plaintiffs.

Virginia Waters, of the Office of Corp. Counsel, New York City, for defendants.

Arthur Luxemberg, of the offices of Morris J. Eisen, P.C., New York City, Anne Weisberg, of the firm Berle, Kass & Case, New York, for amicus curiae on behalf of defendants.

OPINION

WALKER, District Judge:

INTRODUCTION

Plaintiffs Environmental Encapsulating Corp. ("Environmental Encapsulating"), et al. are New York City contractors engaged in the work of asbestos removal incidental to demolition or renovation. Plaintiffs have brought the instant action for a declaratory judgment invalidating certain regulations ("the DEP regulations"), adopted on November 19, 1986 by Defendants The City of New York ("the City") and The New York Department of Environmental Protection ("the DEP"). These regulations require a training program for employees who handle asbestos, after which these employees receive a certificate authorizing their future work with asbestos ("the certification program").

Plaintiffs have moved for a preliminary injunction preventing the enforcement of the DEP regulations. Defendants have cross-moved for summary judgment dismissing plaintiffs' complaint.¹

For the reasons set forth below, plaintiffs' motion for a preliminary injunction is denied. Defendants' motion for summary judgment is granted.

STATEMENT OF FACTS

On November 20, 1985, the New York City Council enacted Local Law 76, which required the DEP to establish "criteria for certifying programs as approved safety and health programs."² In the preamble to Local Law 76, the Council announced the law's purpose: to correct health and safety hazards to workers and the public caused by airborne asbestos:

The predominant cause of asbestos becoming airborne is due to the performance of building renovation and demolition without adequate adherence to procedures for safeguarding workers and the general public, by persons who have not received adequate training in the handling of materials containing asbestos.

Therefore, it is the purpose of this law to safeguard the public health by requiring that renovation or demolition projects which disturb asbestos be conducted in accordance with the procedures established pursuant to the provisions of this local law and that workers who handle materials containing asbestos receive appropriate training.

Accordingly, the local law states: "It shall be unlawful for any individual to handle friable asbestos material in the course of performing work for compensation unless such individual is a holder of a current, valid asbestos handling certificate." N.Y. City Admin.Code § 24-146.1(b)(1). The law further mandates: "The DEP commissioner shall promulgate regulations establishing criteria for certifying individuals as eligible to receive an asbestos handling certificate and for certifying programs as approved safety and health programs. The commissioner may restrict the asbestos handling certificate as to certain supervisory and non-supervisory functions and responsibilities." Id. at § (d)(1).

On November 19, 1986, the DEP first published the mandatory curriculum for the certification program in the City Record. This publication was repeated on December 1, 1986. Neither issue of the City Record specified the date when the certification requirement would become effective.

On December 16, 1986, the City mailed notices to approximately 1,200 contractors, including the five plaintiffs bringing the instant action, stating that the City would require employee certification as of April 1, 1987. On December 22, 1986, Mayor Koch signed Local Law 80, passed by the New York City Council on November 20, 1986 as Intro. No. 731 of 1986, which required asbestos workers to hold the prescribed training certificate as of April 1, 1987. After this date, unless contractors could show that each employee working on any renovation or demolition project involving asbestos held a valid certificate, defendants would refuse to grant those contractors a building or demolition permit. Under the DEP regulations, defendants also could fine contractors up to $10,000 "per violation" for using uncertified employees, and could revoke previously issued building and demolition permits.

Under the DEP regulations promulgated pursuant to Local Law 76 (hereinafter cited as Asbestos Regulations), where asbestos is to be "disturbed" by a building renovation or demolition worker, that worker must possess a valid "handling certificate." An employee seeking to acquire a handling certificate must complete a four-day training course, taught in a program approved by the DEP, at the conclusion of which the employee must pass a two-hour written examination. Asbestos Regulations §§ 8110-11. The certificate is renewable every two years, upon completion of an additional six hours of classes. Id. at §§ 8122, 8133. Employees overseeing asbestos work must have a "supervisor's certificate," issued after the employee has received an additional six hours of instruction beyond that required for a "handling certificate." Id. at § 8112.

The DEP regulations specify that any course leading to employee certification must cover specific subjects related to asbestos work, including: 1. A discussion of asbestos-related diseases and methods for preventing them (id. at §§ 8111(4), 8111(5)); 2. Methods for minimizing the generation of airborne asbestos fibers (id. at § 8111(12)); 3. Methods for minimizing the spread of any airborne asbestos fibers generated by asbestos work (id. at §§ 8111(13), 8111(14)); 4. Methods for minimizing asbestos contamination during an emergency situation, such as an explosion or fire (id. at § 8111(15)); 5. Personal hygiene techniques designed to reduce the amount of asbestos fibers carried from a worksite on employees' clothes or bodies (id. at § 8111(16)).

Plaintiffs estimate, and defendants do not dispute, the total cost to each worker of obtaining a certificate, including both a $100 certification fee payable to the City and training course fees, to be about $600 per worker. As of May 11, 1987, about 1,200 workers had received certificates after completing the required course at one of 15 approved training classes.³ Defendants estimate that at least 200 to 250 additional workers will have received these certificates each week since May 11.

The certification program is the most recent part of a broader city initiative aimed at reducing public exposure to asbestos fibers. In 1972, the New York City Council enacted New York City Air Pollution Control Code § 24-141, which prohibited the use of asbestos in building construction or repair. In 1983, the City initiated a $24 million Asbestos Evaluation Program, designed to measure the level of asbestos concentration at some 1,500 buildings and to fund corrective work at the most toxic of these sites.

On April 17, 1987, this Court entered a temporary restraining order preventing the City from enforcing the certification program against plaintiffs for 10 days. Subsequently, all parties agreed to extend this temporary restraining order until the date of this Court's decision on plaintiffs' motion for a preliminary injunction.

DISCUSSION

In urging this Court to invalidate the certification program, plaintiffs' primarily argue that the federal Occupational Safety and Health Act preempts this state regulation. Plaintiffs also argue that the substance and implementation of the certification program violates the due process clause of the fourteenth amendment. For the reasons set forth below, these arguments are without merit.

A. OSHA PREEMPTION.

In determining whether federal law preempts an otherwise valid state law or regulation, "we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Ray v. Atlantic Richfield Co., 435 U.S. 151, 157, 98 S.Ct. 988, 994, 55 L.Ed.2d 179 (1978); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). Accord Pettis Moving Co. v. Roberts, 784 F.2d 439, 441 (2d Cir.1986). Congress must state its intent to preempt state law with particular emphasis and clarity "when local health and safety provisions are endangered," as in the instant case. Ohio Manufacturers' Association v. City of Akron, 801 F.2d 824, 831 (6th Cir.1986); accord Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309-10, 51 L.Ed.2d 604 (1977).⁴

Congress adopted the Occupational Safety and Health Act ("OSHA") of 1970, "to assure so far as possible every working man and woman in the Nation safe and healthful conditions and to preserve our human resources...." 29 U.S.C. § 651. In pursuit of this goal, the Act authorized the Secretary of Labor to promulgate standards that assure "the greatest protection of the safety or health of the affected employees." Id. at § 655(a). Plaintiffs assert that either the statutory provisions of OSHA or the accompanying administrative standards preempt the City's certification program.

1. Applicability of OSHA.

In opposition to plaintiffs' preemption argument, defendants first argue that the OSHA Revised Construction Standard cannot preempt the City's certification program, since at most OSHA may preempt state law, not local or municipal law. Defendants base this argument on the fact that the OSHA section discussing preemption of local laws uses the term "state," as opposed to "states and their political subdivisions." 29 U.S.C. §§ 652(7), 66...