New Jersey State Chamber of Commerce v. Hughey

Decision Date03 January 1985
Docket Number84-3892.,Civ. A. No. 84-3255
Citation600 F. Supp. 606
CourtU.S. District Court — District of New Jersey
PartiesNEW JERSEY STATE CHAMBER OF COMMERCE; Chemical Industry Council of New Jersey; New Jersey Business and Industry Association; Chemical Specialties Manufacturers Association, Inc.; Merck & Co., Inc.; Magnesium Elektron, Inc.; CP Chemicals, Inc.; Chem-Mark, Inc.; Exxon Chemical Americas, a division of Exxon Chemical Company, a division of Exxon Corporation; Schering Corporation; Essex Chemical Corporation; Ingersoll-Rand Company; and Shell Chemical Company, a division of Shell Oil Company, Plaintiffs, v. Robert E. HUGHEY, Commissioner of Environmental Protection; J. Richard Goldstein, M.D., Commissioner of Health; and William Van Note, Acting Commissioner of Labor, and the State of New Jersey, Defendants, and Joseph H. Rodriguez, Public Advocate of the State of New Jersey, et al., Defendant-Intervenors. FRAGRANCE MATERIALS ASSOCIATION OF the UNITED STATES; Flavor and Extract Manufacture's Association; Bush Boake Allen, Inc.; Dragoco, Inc.; Firmenich, Inc.; International Flavors and Fragrances, Inc.; Isogenics, Inc.; H.J. Kohnstamm & Co., Inc.; V. Mane Fils, Inc.; Noville Essential Oil Company, Inc.; Polarome Manufacturing Corp.; Roure Bertrand Dupont, Inc.; Takasago USA, Inc.; Ungerer & Co.; and Universal Fragrance Corporation, Plaintiffs, v. William VAN NOTE, Acting Commissioner of Labor for State of New Jersey; J. Richard Goldstein, Commissioner of Health for State of New Jersey; Robert E. Hughey, Commissioner of Environmental Protection for State of New Jersey, Defendants, and Joseph H. Rodriguez, Public Advocate of the State of New Jersey, et. al., Defendant-Intervenors.

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Farrell, Curtis, Carlin & Davidson by John J. Carlin, Jr., Lisa J. Pollak, Morristown, N.J., for plaintiffs in Civ. A. No. 84-3255.

Lawrence A. Casha by Frank C. Azzinaro, Towaco, N.J., and Daniel R. Thompson, and McKenna & Shea by John P. McKenna, Washington, D.C., for plaintiffs in Civ. A. No. 84-3892.

Irwin I. Kimmelman, Atty. Gen. of N.J. by Michael S. Bokar, Deputy Atty. Gen., Trenton, N.J., for defendants in Civ. A. Nos. 84-3255 and 84-3892.

Joseph H. Rodriguez, Public Advocate by Richard A. Goldberg, Sharon A. Treat, Asst. Deputies Public Advocate, Dept. of the Public Advocate, Division of Public Interest Advocacy, Trenton, N.J., and Public Interest Law Center of Philadelphia, Philadelphia, Pa., and Reitman, Parsonnet, Maisel & Duggan by Bennett D. Zurofsky, Newark, N.J., for defendant-intervenors in Civ. A. Nos. 84-3255 and 84-3892.

DEBEVOISE, District Judge.

I. The Proceedings

These two consolidated actions challenge the New Jersey Worker and Community Right to Know Act (the "Right to Know Act"), N.J.S.A. 34:5A-1, et seq., primarily on the ground that the Act is preempted by regulations or standards promulgated under the federal Occupational Safety and Health Act of 1970 (the "OSH Act"),1 29 U.S.C. §§ 651, et seq. Plaintiffs further contend that certain of the Right to Know Act's disclosure requirements constitute an unreasonable exercise of the State's police power and will result in a taking of trade secrets without due process of law.

The plaintiffs in Civil Action No. 84-3255 (the "Chamber of Commerce Action") are the New Jersey State Chamber of Commerce, three chemical and business associations, and eight pharmaceutical and chemical companies. Defendants in that action are New Jersey's Commissioner of Environmental Protection, Commissioner of Health, Acting Commissioner of Labor, and the State of New Jersey. Plaintiffs ask for injunctive and declaratory relief. They seek an order directing the defendant Commissioners to comply with the provisions of § 18 of the OSH Act (defining federal preemption), 29 U.S.C. § 667, and enjoining the State of New Jersey from enforcing the obligations of the Right to Know Act. Plaintiffs seek a declaratory judgment that § 18 of the OSH Act precludes the New Jersey Commissioners from enforcing the obligations of the Right to Know Act in light of OSHA's Hazard Communication Standard, 29 C.F.R. § 1910.1200, and that the Right to Know Act is, on its face, unconstitutional and preempted by § 18 of the OSH Act and the Hazard Communication Standard.

After defendants in the Chamber of Commerce Action answered, plaintiffs moved for a preliminary injunction against enforcement of the Right to Know Act. A hearing was held on November 15, 1984.

The plaintiffs in Civil Action No. 84-3892 (the "Fragrance Materials Association Action") are two associations, the members of which are engaged in the manufacture and sale of fragrances and fragrance materials, and thirteen corporations which compound, mix, blend and/or manufacture fragrances or their ingredients. The defendants are the three New Jersey Commissioners who are the defendants in the Chamber of Commerce Action.

Plaintiffs in the Fragrance Materials Association Action seek to enjoin enforcement of the Right to Know Act. After defendants answered plaintiffs moved for summary judgment on Count I (alleging preemption) and on Count II (alleging deprivation of trade secrets without just compensation) or, in the alternative, for a preliminary injunction against enforcement of the Right to Know Act. Plaintiffs' motion was heard on December 10, 1984.

The two cases were consolidated prior to the November 15 and December 10 hearings. The Public Advocate of the State of New Jersey and twenty-nine unions, environmental organizations and other interested groups had moved to intervene. I granted the motion. The intervenors crossmoved for a partial summary judgment in their favor dismissing Counts I and II of the complaint in the Fragrance Materials Association Action. The intervenors as well as the original parties participated in the two hearings.

This opinion addresses all of the pending motions.

II. The Facts

A. The Right to Know Act: On August 29, 1983 New Jersey's Governor signed the Worker and Community Right to Know Act, N.J.S.A. 34:5A-1, et seq., which became effective August 29, 1984.

Defendants submitted affidavits of numerous persons having experience and expertise in the fields of chemical substances and occupational and community hazards resulting from such substances. Included among the affidavits were governmental officials having responsibilities for work-place or community protection from chemical hazards, physicians and scientists whose careers have been devoted to treating or preventing illnesses caused by dangerous substances and persons familiar with the problems of fire fighting at industrial sites.

Taken together their affidavits demonstrate the rationale for the Right to Know Act. New Jersey, one of the nation's smallest states, is also one of the most densely populated. It has a high concentration of industry in general and of chemical manufacturers and processors in particular. Since World War II the number of available chemicals has grown extraordinarily, there now being approximately 50,000 different chemicals used in industry. Many of these are hazardous. Exposure to these hazardous substances can take place in the plant where they are used or processed; the community can be exposed through emission in the air, through accidental leakage from the plant or through lawful and unlawful disposal outside the plant. Exposure can and does result in debilitating or fatal illness, particularly cancer, lung ailments, sterility and birth defects.

Workers in a plant are often unaware of the dangerous substances with which they deal, or, if they are aware, they may not be advised of the precautions they should take. Often employers are unaware of the dangerous nature of the materials in their plants. The affidavits recite instances in which doctors seeking to treat an employee after exposure to a chemical substance have been unable to do so because the employer is either unable or unwilling to identify the substance.

Further, inhabitants of communities surrounding industrial complexes do not know the nature of chemical vapor to which they are exposed nor do they know the possible hazards which exposure entails. Public health officials cannot advise them because they, too, quite often do not have the necessary information. While some industrial concerns go to great pains to educate and inform both their employees and public officials of the chemical substances in their plants, others do not. Lacking such cooperation there was little that public officials could do to protect citizens from the existence of harmful substances.

In particular fire fighting organizations were often unable to obtain precise information concerning the substances with which they might have to deal in the event of a plant fire. Further, when fires occurred, there was often no way in which firemen could tell quickly what substances were burning in the plants. This information might be vital both to know how to deal with the fire itself and to safeguard firemen and other persons in the area.

New Jersey enacted the Right to Know Act to meet this congeries of problems arising in the workplace and extending into the community at large. The purpose is reflected in the Act's legislative findings and declarations, N.J.S.A. 34:5A-2, and in the statement of purpose contained in the regulations implementing the Act. N.J. A.C. 8:59-1.2.

The Right to Know Act requires that the New Jersey Department of Environmental Protection (the "DEP") develop both an environmental hazardous substance list and an environmental survey designed to enable employers to report information about environmental hazardous substances at their facilities. N.J.S.A. 34:5A-4.

The Department of Health is required to develop four things: (1) a workplace hazardous substance list which must include (a) any substance regulated by the federal Occupational Safety and Health Administration ("OSHA") under 29 C.F.R., Part 1910, subpart z, (b) any environmental...

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    ...contained in § 13 of the New Jersey Worker and Community Right to Know Act, N.J.S.A. § 34:5A-13. See New Jersey State Chamber of Commerce v. Hughey, 600 F.Supp. 606, 618 (D.N.J.), aff'd in part, rev'd in part on other grounds, 774 F.2d 587 (3d Cir.1985) (interpreting 29 C.F.R. § Finally, pl......
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