New Jersey State Chamber of Commerce v. Hughey

Decision Date10 October 1985
Docket NumberAFL-CI,AFL-CIO,No. 85-5088,No. 85-,85-5088 and 85-5095,C,Nos. 85-5087,No. 85-5087,L,85-5087,85-5088,85-,s. 85-5087
Citation774 F.2d 587
Parties, 54 USLW 2224, 15 Envtl. L. Rep. 21,030, 12 O.S.H. Cas.(BNA) 1489, 1984-1985 O.S.H.D. ( 27,403 NEW 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 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 and Amy Piro, Acting Public Advocate of the State of New Jersey; New Jersey State Industrial Union Council,(IUC); Citizen Action of New Jersey; Philadelphia Area Project on Occupational Safety & Health (PHILAPOSH); New Jersey Environmental Lobby; New Jersey State Firemen's Mutual Benevolent Association (FMBA); International Association of Firefighters, New Jersey (IAFF); Communication Workers of America, (CWA); District Three, International Union of Electronic, Electrical, Technical, Salaried and Machine Workers, AFL- CIO (IUE); International Ladies' Garment Workers' Union, (ILGWU); Amalgamated Clothing and Textile Workers Union,entral and South Jersey Joint Board (ACTWU); United Paperworkers International Union, (UPIU); Oil, Chemical and Atomic Workers Union,ocals 8-149, 8-760, and 8-5570 (OCAW); United Auto Workers Union,ocal 502 (UAW); Chemical Workers Association, Inc.; Independent Oil Workers Union; Trenton Education Association; Aluminum, Brick & Glass Workers International Union,ocal 514-G; Pennsylvania Federation, Brotherhood of Maintenance of Way Employees,; Coalition Against Toxics; League of Conservation Voters (New Jersey); Clean Water Action (Washington, D.C. and New Jersey); Student Pub
CourtU.S. Court of Appeals — Third Circuit

Theodore M. Lieverman, Philadelphia, Pa., for amici curiae, The Hon. Mark B. Cohen, et al.

Robert W. Thomson, Debra M. Coulson, Blair S. McMillin, Reed Smith Shaw & McClay, Pittsburgh, Pa., for amici curiae, Manufacturers Ass'n of Tri-County, Appleton Papers, Inc., Ellwood City Forge Corp. and McDanel Refractory Co.

John J. Carlin, Jr. (argued), Lisa Pollak, Martin Cronin, Farrell, Curtis, Carlin & Davidson, Morristown, N.J., for N.J. State Chamber of Commerce, et al.

John P. McKenna (argued), Daniel F. Shea, McKenna & Shea, Washington, D.C., Daniel R. Thompson, Law Offices of Daniel R. Thompson, Washington, D.C., for Fragrance Materials Ass'n, et al.

Paul Bardacke, Atty. Gen., Douglas Meiklejohn, Christopher D. Coppin, Asst. Attys. Gen., Santa Fe, N.M., for amici curiae, the State of N.M. and the New Mexico Environmental Imp. Div.

Irwin I. Kimmelman, Atty. Gen. of N.J., Michael R. Cole, First Asst. Atty. Gen., Michael S. Bokar, Deputy Atty. Gen. (argued), Trenton, N.J., for defendant Robert E. Hughey, Com'r of Environmental Protection, et al.

Amy Piro, Acting Public Advocate of New Jersey, Richard A. Goldberg, Sharon A. Treat, Asst. Deputies Public Advocate, Div. of Public Interest Advocacy, Trenton, N.J., Reitman, Parsonnet, Maisel & Duggan, Sidney Reitman, Bennett D. Zurofsky (argued), Newark, N.J., Public Interest Law Center of Philadelphia, Jerome Balter, Philadelphia, Pa., for Amy Piro, Acting Public Advocate, et al.

Before GIBBONS and BECKER, Circuit Judges, and DIAMOND, District Judge. *

OPINION OF THE COURT

GIBBONS, Circuit Judge:

This is an appeal from a final summary judgment in consolidated actions challenging the constitutionality of the New Jersey Worker and Community Right to Know Act, N.J.Stat.Ann. Sec. 34:5A-1 to -31 (West 1984), which requires the disclosure of substances that may pose environmental hazards. The plaintiffs 1 contend that the statute is preempted in its entirety by the federal Occupational Safety and Health Act of 1970, Pub.L. No. 91-596, 84 Stat. 1590 (1970), codified at, 29 U.S.C. Secs. 651-678 (1982) (OSH Act), and that the disclosure requirements are an unreasonable exercise of the state's police power which will result in a taking of trade secrets without due process. The district court, 600 F.Supp. 606 (D.N.J.1985), held that the Right to Know Act, as applied to workers in the manufacturing sector, 2 is preempted by the OSH Act and OSHA's Hazard Communication Standard, 29 C.F.R. Sec. 1900.1200 (1984). The district court further held that the provisions of the Right to Know Act that apply to employers outside the manufacturing sector are unseverable. The court therefore permanently enjoined enforcement of the Act against employers in the manufacturing sector until the state submits a plan to the Secretary of Labor, pursuant to 29 U.S.C. Sec. 667(b), and obtains his approval of the state enforcement plan. The court also entered a declaratory judgment that the Act is not a taking of trade secrets without due process, and is not preempted as applied to employers not in the manufacturing sector. All parties appeal. Since we review a summary judgment our review is plenary. We affirm in part and reverse in part.

I. The Right to Know Act

The legislative findings and declaration of purpose are included in the statute, which provides in relevant part:

[T]he proliferation of hazardous substances in the environment poses a growing threat to the public health ... [and] individuals have an inherent right to know the full range of risks they face so that they can make reasoned decisions and take informed action concerning their employment and their living conditions.

... [L]ocal health, fire, police, safety and other government officials require detained [sic] information about the identity ... of hazardous substances ... in order to adequately plan for, and respond to, emergencies....

... [T]he toxic contamination of the air, water, and land in this State has caused a high degree of concern among its residents ... [which is] needlessly aggravated by the unfamiliarity of these substances to residents.

The Legislature therefore determines that it is in the public interest to establish a comprehensive program for the disclosure of information about hazardous substances in the workplace and the community, and to provide a procedure whereby residents of this State may gain access to this information.

N.J.Stat.Ann. Sec. 34:5A-2 (West 1984). Thus the New Jersey Legislature intended the Right to Know Act to make information about toxic chemicals available, (1) to all New Jersey residents who might be exposed to such chemicals, in the workplace or elsewhere, and (2) to public safety officers who might need such information to prevent, or respond to, emergencies.

The Right to Know Act directs the New Jersey Department of Environmental Protection (DEP) to develop an environmental hazardous substance list, which must contain:

substances used, manufactured, stored, packaged, repackaged, or disposed of or released into the environment of the State which, in the department's determination, may be linked to the incidence of cancer; genetic mutations; physiological malfunctions, including malfunctions in reproduction; and other diseases; or which, by virtue of their physical properties, may pose a threat to the public health and safety.

N.J.Stat.Ann. Sec. 34:5A-4(a). The DEP promulgated such a list pursuant to the Act. N.J.Admin.Code tit. 7, Sec. 1G-2.1 (1984). DEP is further directed to develop an environmental survey "designed to enable employers to report information about environmental hazardous substances at their facilities." N.J.Stat.Ann. Sec. 34:5A-4(b).

A separate section of the Act directs the Department of Health to develop a workplace hazardous substance list which must include: (1) all substances regulated by the Occupational Safety and Health Administration (OSHA) under 29 C.F.R. Sec. 1910, subpart z; (2) all environmental hazardous substances; and (3) all substances that "pose[ ] a threat to the health or safety of an employee." N.J.Stat.Ann. Sec. 34:5A-5(a). The workplace hazardous substance list, therefore, by definition includes all substances on the environmental hazardous substance list, and may include some additional substances. The list as promulgated is codified at N.J.Admin.Code, tit. 8, Sec. 59 App. A (1984). The ...

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