NJ State Chamber of Commerce v. State of NJ

• Decision Date: 20 February 1987
• Docket Number: Civ. A. No. 85-3996.
• Citation: 653 F. Supp. 1453
• Parties: NEW JERSEY STATE CHAMBER OF COMMERCE, Public Service Electric and Gas Company, and Jersey Central Power & Light Company, Plaintiffs, v. STATE OF NEW JERSEY; Charles Serraino, Commissioner of Labor; and J. Richard Goldstein, M.D., Commissioner of Health, Defendants.
• Court: U.S. District Court — District of New Jersey

653 F. Supp. 1453

NEW JERSEY STATE CHAMBER OF COMMERCE, Public Service Electric and Gas Company, and Jersey Central Power & Light Company, Plaintiffs, v. STATE OF NEW JERSEY; Charles Serraino, Commissioner of Labor; and J. Richard Goldstein, M.D., Commissioner of Health, Defendants.

Civ. A. No. 85-3996.

United States District Court, D. New Jersey.

February 20, 1987.

Law Offices of John J. Carlin, Jr. by John J. Carlin, Jr., Florham Park, N.J., for plaintiffs.

W. Cary Edwards, Atty. Gen. of New Jersey by Michael S. Bokar, Sr. Deputy Atty. Gen., Trenton, N.J., for defendants.

DEBEVOISE, District Judge.

I. Factual and Procedural Background

Plaintiffs New Jersey State Chamber of Commerce ("Chamber of Commerce"), Public Service Electric & Gas Company ("PSE & G"), and Jersey Central Power & Light Company ("Jersey Central") filed a complaint on August 14, 1985 seeking judgment (i) declaring that the implementation of obligations under the New Jersey Asbestos Control and Licensing Act, N.J.S.A. 34:5A-32 et seq. ("the Asbestos Act"), and the regulations promulgated thereunder, N.J.A.C. 12:120-1 et seq. and 8:60-1 et seq. ("the Asbestos Regulations"), are in violation of the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. ("the OSH Act"), and the United States Constitution and (ii) enjoining defendants from enforcing the provisions of the Asbestos Act and Asbestos Regulations until defendants obtain federal approval of the Asbestos Act and Regulations pursuant to the provisions of the OSH Act.

Plaintiffs moved for summary judgment on October 24, 1985, contending that the Asbestos Act and Asbestos Regulations were expressly preempted by the 1972 Occupational Safety and Health Administration ("OSHA") Standard for Exposure to Asbestos Dust, 37 Fed.Reg. 11,318 (June 7, 1972) ("1972 Asbestos Standard"), amended, 51 Fed.Reg. 22,733-90 (June 20, 1986). Defendants cross-moved for summary judgment, asserting that there was no preemption. Resolving these motions, I held that the New Jersey Asbestos Hazard Abatement Subcode, N.J.A.C. 5:23-8 et seq. ("Asbestos Subcode"), applies exclusively to educational facilities and does not apply to facilities operated by the plaintiffs. Hence, the Asbestos Subcode was not preempted. New Jersey State Chamber of Commerce, et al. v. State of New Jersey, et al., No. 85-3996, Slip op. at 23 (January 13, 1986). Second, I held that §§ 8:60-4.6 (a)(1)-(3) of the Asbestos Regulations, which require employers licensed under the Asbestos Act to assure that work performed conforms to various OSHA standards, were expressly preempted and severable from the remainder of the Asbestos Act and Regulations. Id. at 24-25. These preempted provisions were subsequently deleted from the Asbestos Regulations. See 18 N.J.R. 986(a) (May 5, 1986).

Third, I concluded that the training programs mandated by the 1972 Asbestos Standard were either extremely limited in scope or extremely general and aspirational in nature and that the 1972 Asbestos Standard contained no asbestos education and training program comparable to that provided for in the New Jersey Asbestos Act and Regulations. I therefore held that the remainder of the Asbestos Act and Regulations were not expressly preempted nor in and of itself impliedly preempted, and I ordered that a factual record be developed concerning implied preemption.

On June 20, 1986, OSHA published the Revised Asbestos Standards. See 51 Fed. Reg. 22,733-90. Both the Revised General Industry Standard and the Revised Construction Industry Standard contain comprehensive employee education and training programs. Accordingly, plaintiffs have again moved for summary judgment, seeking an order (i) declaring that the enforcement of the Asbestos Act and Regulations against employers using their own employees to perform asbestos work in their own facilities is in violation of § 18 of the OSH Act and the United States Constitution by virtue of the Revised Asbestos Standards and (ii) enjoining the defendants from enforcing these state enactments against such employers until the defendants obtain OSHA approval of a state plan.

Defendants (collectively, "the State") have cross-moved for summary judgment on the asserted grounds that (i) plaintiffs' motion is not ripe for review, (ii) the present action has been rendered moot, and (iii) the Asbestos Act and Regulations promulgated thereunder are not preempted by the OSHA Revised Asbestos Standards.

II. Revised Asbestos Standards

The 1972 Asbestos Standard established an eight hour time weighted average ("TWA") permissible exposure limit ("PEL") for airborne concentrations of asbestos fibers of 5.0 fibers per cubic centimeters of air (5 f/cc) and imposed a ceiling limit of 10.0 fibers per cubic centimeters of air (10 f/cc). See 37 Fed.Reg. 11,418. A further reduction of the PEL to 2.0 f/cc fibers by July 1, 1976 was also mandated. Limited employee education and training provisions were incorporated by reference into the 1972 Asbestos Standard.

On November 4, 1983, OSHA published an Emergency Temporary Standard for Occupational Exposure to Asbestos ("ETS") which reduced the PEL to 0.5 f/cc and expanded the 1972 Asbestos Standard's training provisions. 48 Fed.Reg. 51,085 (1983). In Asbestos Information Ass'n/North America v. OSHA, 727 F.2d 415, 427 (5th Cir.1984), the Fifth Circuit invalidated the ETS on the ground that it was not issued in compliance with OSHA's enabling statute for emergency temporary standards. On April 10, 1984, OSHA published a proposed rule which sought to amend the 1972 Asbestos Standard. 49 Fed.Reg. 13,117 (1984). After extensive revisions, OSHA ultimately published the Revised Asbestos Standards in the Federal Register on June 20, 1986. See 51 Fed. Reg. 22,733-90. Separate standards were promulgated for the construction industry and general industry. These revised standards reduce the PEL to 0.2 f/cc, eliminate the ceiling limit, expand work practices and hygiene facility requirements, and introduce the "action level" concept. They also impose comprehensive employee training and education requirements upon employers.

A. Scope and Application of Revised Asbestos Standards.

The Revised Construction Industry Standard applies, inter alia, to all asbestos work covered by the Asbestos Act and Regulations. Compare N.J.A.C. 12:120-2.1 and 8:60-2.1 (defines "asbestos work") with 29 C.F.R. § 1910.12(b) and 29 C.F.R. § 1916.58(a) (defines "construction work"). The Revised General Industry Standard applies to all other employers not covered by the Revised Construction Industry Standard. See 29 C.F.R. § 1910.1001(a)(2). Together, these Revised Asbestos Standards apply to all employers subject to OSHA jurisdiction and comprehensively address the issue of reducing the hazards of asbestos exposure in the workplace. See 51 Fed.Reg. 22,678; 22,684. Since plaintiffs perform asbestos work covered by the Revised Construction Industry Standard, the substantive provisions of that OSHA Standard, which parallel those of the Revised General Industry Standard, are outlined below.

B. Substantive Provisions of the Revised Asbestos Standard.

The substantive provisions of these Revised Asbestos Standards are triggered by the airborne concentration of asbestos fibers. These standards prescribe the methods to measure employee exposure and require that monitoring results be communicated to affected employees. 29 C.F.R. § 1926.58(f)(5-6). OSHA established an "action level" of 0.1 f/cc which requires employers to comply with the periodic monitoring, employee training, and medical surveillance requirements. See 51 Fed.Reg. 22,679. Requirements for regulated areas, hygiene facilities, and protective clothing are triggered at the PEL of 0.2 f/cc. Id. Engineering controls and work practices are the preferred methods for achieving compliance with the PEL. See 51 Fed.Reg. 22,692-93. These methods may be supplemented with respirator use. 29 C.F.R. § 1926.58(g)(1)(ii).

(1) Employee Information and Training.

Employers must institute comprehensive training programs for all employees exposed to airborne asbestos concentrations exceeding the action level. Id. § (k)(3)(i). Each employee must be informed of the methods to recognize asbestos and the health effects of asbestos, including the relationship between smoking and asbestos in producing lung cancer. Id. § (k)(3)(iii). Employers must also ensure that these training programs inform each employee of:

D The nature of operations that could result in exposure to asbestos ... the importance of necessary protective controls to minimize exposure including, as applicable, engineering controls, work practices, respirators, housekeeping procedures, hygiene facilities, protective clothing, decontamination procedures, emergency procedures, and waste disposal procedures, and any necessary instruction in the use of these controls and procedures;

. . . . .

F The appropriate work practices for performing the asbestos ... job.

Id. § (k)(3)(iii) (D & F). See also 29 C.F.R. § 1926.21(b)(2-3). The Revised Asbestos Standards also incorporate the training provisions of the OSHA Respiratory Protection Standard. 29 C.F.R. § 1926.58(k)(3)(iii)(E). The Respiratory Protection Standard expressly provides that:

For safe use of the respirator, it is essential that the user be properly instructed in its selection, use, and maintenance. Both supervisors and workers shall be so instructed by competent persons. Training shall provide the men an opportunity to handle the respirator, have it fitted properly, test its face-piece-to-face seal, wear it in normal air for a long familiarity period, and, finally, to wear it in a test atmosphere.

29 C.F.R. § 1910.134(e)(5). It requires every respirator wearer to receive instruction in how to correctly wear, adjust, and determine the proper fit of respirators. 29 C.F.R. § 1910.134(e)(5)(i). Such instructions must include both demonstrations by competent instructors and hands...