Ohio Mfrs. Ass'n v. City of Akron
| Decision Date | 07 February 1986 |
| Docket Number | Civ.A. C 85-3658 A. |
| Citation | 628 F. Supp. 623 |
| Parties | OHIO MANUFACTURERS' ASSOCIATION, et al., Plaintiffs, v. CITY OF AKRON, et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
John W. Hoberg, Marcia J. Mengel, Vorys, Sater, Seymour & Pease, Columbus, Ohio, for plaintiffs.
Janice E. Crossland, Asst. Dir. of Law, Akron, Ohio, for defendants.
Paul J. Malesick, Asst. Gen. Counsel, United Rubber, Cork, Linoleum & Plastic Workers of America, Salvatore J. Falletta, Gen. Counsel, International Chemical Workers Union, Akron, Ohio, for amicus curiae.
This case is before the Court on an expedited basis following the December 5, 1985 issuance of a Temporary Restraining Order enjoining defendants from enforcing Akron, Ohio Codified Ordinances ch. 1830 ("Chapter 1830" or "the Akron ordinance"), entitled "Hazardous and Toxic Substances," on its effective date of December 17, 1985.1 Plaintiffs are the Ohio Manufacturers' Association, a non-profit membership association representing sixty-one employers in the City of Akron which are classified within Standard Industrial Classification ("SIC") Codes 20 through 39, and Akron Selle Company, an Akron contract metal stamping company employing twenty persons and classified within SIC Code 34.2 Defendants are the City of Akron; Akron's Health Commission; Akron's Health Department; C. William Kech, M.D., Director of Health; and Harold K. Stubbs, Director of Law. The latter four defendants share responsibility for the enforcement of Chapter 1830. Nine Akron community groups have been permitted to file a brief as amici curiae.3
The complaint summarizes the plaintiffs' claims:
The basis for plaintiffs' action is that Chapter 1830 1) violates the Supremacy Clause of the United States Constitution in that it conflicts with and has been preempted by the Occupational Safety and Health Act (hereinafter "OSH Act"), 29 U.S.C. § 651 et seq., and the Hazard Communication Standard promulgated pursuant to the OSH Act, 29 C.F.R. § 1910.1200; 2) violates the Commerce Clause of the United States Constitution in that it constitutes an excessive and undue burden on interstate commerce; and 3) violates Article XVIII, Section 3, of the Ohio Constitution in that certain applications of it conflict with and have been preempted by Ohio Revised Code Section 3745.05(D)(3).
Subsequent to oral argument on January 17, 1986, the parties stipulated a dismissal of the third cause of action. However, plaintiffs still seek a declaration that Chapter 1830 is unconstitutional both on its face, and as applied to certain employers.
Upon consideration, and for the reasons set forth below, the plaintiffs' motion is denied, and judgment is entered for the defendants.
Jurisdiction is based upon 28 U.S.C. § 1331 (1982).
Akron's "Right-to-Know" ordinance, No. 771-1984, is designated "Chapter 1830: Hazardous and Toxic Substances." Its preamble indicates that the ordinance was promulgated to protect workers, firefighters, other public officials, and the public against the dangers of toxic substances used in Akron workplaces. Chapter 1830 is applicable to employers within the City of Akron which are categorized by the enumerated Standard Industrial Classification Codes ("employers"). §§ 1830.01, 1830.03(i). Among explicitly exempted employers and substances are federal, state, and local governments and their units (not including Akron itself), laboratories, goods transported through Akron, consumer products and food intended for consumption by the general public, and de minimis amounts of hazardous substances. § 1830.02. The "hazardous chemicals" regulated by the ordinance are designated in a master list to be produced by Akron's Health Commission in accordance with a minimum list established by Chapter 1830. § 1830.05. The Health Commission is appointed administrator and enforcement agent of the ordinance. § 1830.04.
Chapter 1830 requires employers to label each container of hazardous material with its chemical name, any applicable Department of Transportation labels, and cancer and reproductive warnings when appropriate. § 1830.07(a). Placards or signs may replace labels when stationary containers within a work area have the same hazards, or when labels are susceptible to damage. §§ 1830.07(b), (c).
Each employer is mandated to either obtain or create a material safety data sheet ("MSDS") for each hazardous chemical it uses, manufactures or stores. The MSDS for chemicals not classified as trade secrets must report relevant health and safety information, including chemical and common names of ingredients, physical and chemical characteristics, known acute and chronic health effects of exposure, primary routes of entry, permissible exposure limits established by the Occupation Safety and Health Administration ("OSHA"), precautions for safe handling and use, control measures, and emergency and first aid procedures. § 1830.10(a). Employees who request to see an MSDS shall be provided with a copy by their employers by the end of the next weekday following the request. § 1830.10(b). Processors, users or storers of hazardous chemicals who have not been provided with an MSDS by their suppliers or manufacturers must take prescribed steps to procure a copy following an employee request. § 1830.10(d).
Employers governed by Chapter 1830 who manufacture, use, or store hazardous substances must establish workplace training programs for their employees. § 1830.06(b). These programs must explain the hazards of chemicals to which employees are exposed; the employer's method of hazard communication; appropriate work practices and protective measures; and emergency procedures. § 1830.11(a). Employees shall also be informed of their rights to receive information on hazardous chemicals in their workplace, to request an inspection of the workplace, and to be free from retaliatory discharge, discipline, or other discrimination for exercising a Chapter 1830 right. §§ 1830.11(b), 1830.15.
Each January, employers subject to the ordinance are required to file a list of all work areas in the workplace which contain hazardous chemicals. § 1830.09(a)(1). Any spill, leak or emission of a toxic substance which must be reported to a federal or state agency pursuant to applicable law must also be reported to Akron's Health Commission designee immediately. § 1830.09(a)(2).
Temporary variances, subject to renewal, to the labeling provisions of Chapter 1830 may be obtained upon either a showing of undue or unnecessary hardship for a specific employer, workplace, or work area, or for a pre-existing program in substantial compliance. § 1830.08(a). Trade secret protection is also available to employers upon special showing. A specific chemical name of an eligible substance may be withheld if its properties and effects are disclosed upon the MSDS and if it is not a designated carcinogen. § 1830.14(a). However, an employer cannot refuse to provide the specific chemical identity to medical or fire personnel in an emergency, nor to an employee who is regularly exposed to the toxin who agrees to execute a confidentiality agreement. § 1830.14(f), (i). Upon a showing that an employee requesting the chemical identity of a substance for which trade secrecy is claimed is eligible for such information, the Director of Health's designee may subject the employer to citation. § 1830.14(n).
Enforcement of Chapter 1830 is delegated to the Health Department, the Health Commission, and the Law Director of Akron. §§ 1830.12, 1830.13. Compliance with the ordinance was required of employers of fifty-one or more employees within one year of passage, i.e., December 17, 1985, and for employers of fifty or fewer employees, by June 17, 1986. § 1830.17.
Pursuant to his power to promulgate standards provided in § 6 of the Occupational Health and Safety Act of 1970, 29 U.S.C. § 655 (1982) ("OSH Act"), the Secretary of Labor ("Secretary") issued an occupational health and safety standard entitled "Hazard Communication Standard" ("Standard") on November 25, 1983. See United Steelworkers of America v. Auchter, 763 F.2d 728, 735 (3d Cir.1985). The stated purpose of the Standard is "to ensure that the hazards of all chemicals produced or imported by chemical manufacturers or importers are evaluated and that information concerning their hazards is transmitted to affected employers and employees within the manufacturing sector." 29 C.F.R. § 1910.1200(a) (1985).4 The Standard expressly intends § 1910.1200(b).
The Standard applies to a specified class of employers who are involved in manufacturing using hazardous chemicals. Chemical manufacturers and importers are required to assess the hazards of their products; distributors must transmit relevant information with the products; and employers in SIC Codes 20 through 39 are instructed to provide information about the hazardous chemicals to exposed employees. § 1910.1200(b). Regulation of laboratories is less stringent, § 1910.1200(b)(3), and certain products, such as foods, regulated pesticides, and tobacco products, are partially or entirely exempted from regulation by the Standard. §§ 1910.1200(b)(3)-(5).
Instead of defining which chemicals are "hazardous" by the creation of a master list by OSHA or its designee, the responsibility for making hazard determinations is delegated to chemical manufacturers and importers. § 1910.1200(d). Employers are expected to make these determinations only if they choose not to rely upon the determinations of the chemical manufacturers or importers. § 1910.1200(d)(1). The Standard enumerates lists of presumptively hazardous chemicals which persons evaluating...
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Ohio Mfrs. Ass'n v. City of Akron, 86-3191
...GUY, Circuit Judges, and BROWN, Senior Circuit Judge. RALPH B. GUY, JR., Circuit Judge. Plaintiffs appeal the district court's judgment 628 F.Supp. 623 in favor of defendants entered after the court determined that the Akron "Right to Know" Ordinance, regulating hazardous and toxic substanc......