People v. Pymm

• Decision Date: 16 October 1990
• Citation: 563 N.E.2d 1,76 N.Y.2d 511,561 N.Y.S.2d 687
• Parties: , 563 N.E.2d 1, 59 USLW 2254, 21 Envtl. L. Rep. 20,404, 14 O.S.H. Cas. (BNA) 1833, 1991 O.S.H.D. (CCH) P 29,175 The PEOPLE of the State of New York, Respondent, v. William PYMM, Edward Pymm, Jr., Pymm Thermometer Corporation and Pak Glass Machinery Corporation, Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 687

561 N.Y.S.2d 687

76 N.Y.2d 511, 563 N.E.2d 1, 59 USLW 2254,

21 Envtl. L. Rep. 20,404, 14 O.S.H. Cas. (BNA) 1833,

1991 O.S.H.D. (CCH) P 29,175

The PEOPLE of the State of New York, Respondent, v. William PYMM, Edward Pymm, Jr., Pymm Thermometer Corporation and Pak Glass Machinery Corporation, Appellants.

Court of Appeals of New York.

Oct. 16, 1990.

Certiorari Denied Feb. 19, 1991.

Albert J. Brackley and Lewis D. Cohen, Brooklyn, for appellants.

Robert Abrams, Atty. Gen. (Nancy Stearns, O. Peter Sherwood and Lawrence S. Kahn, Albany, of counsel) and Charles J. Hynes, District Attorney (Shulamit Rosenblum and Jay M. Cohen, Brooklyn, of counsel), for respondent.

Daniel J. Popeo, Richard A. Samp, Jan S. Amundson and Quentin Riegel, Washington, D.C., for Washington Legal Foundation et al., amici curiae.

Michael B. Gerrard and Anne C. Weisberg, New York City, for New York Committee for Occupational Safety and Health, amicus curiae.

OPINION OF THE COURT

WACHTLER, Chief Judge.

In this case, we consider whether Federal regulation of workplace safety under the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.) (the Act) preempts New York's efforts to punish culpable employer conduct under its general criminal laws. We conclude that the Act does not expressly or impliedly preempt State prosecution of employers whose criminal activity happens to be centered in the workplace or directed against employees. The order of the Appellate Division, 151 A.D.2d 133, 546 N.Y.S.2d 871, reinstating the jury's guilty verdict against these defendants should therefore be affirmed.

I.

The corporate defendants Pymm Thermometer Corporation (PTC) and Pak Glass Machinery Corporation (Pak Glass) are domestic corporations that operate on two separate floors of the same Brooklyn building. PTC, which is located on the second floor, manufactures thermometers for clinical use, while Pak Glass, located on the ground floor, services and repairs the machinery used by PTC. Defendant William Pymm was vice-president of both corporations from 1981 to 1984 and has been their president since 1984. Defendant Edward Pymm, Jr. holds the title of vice-president and has served as plant manager for both operations since 1981.

Mercury contamination has been an ongoing problem at PTC, posing a serious health risk to PTC's employees. The mercury used to fill the thermometers, although a liquid at normal temperatures, readily evaporates into the surrounding air. Once inhaled, mercury vapor passes from the lungs into the bloodstream and is then circulated throughout the rest of the body, including the brain. Mercury can also enter the body through breaks in the skin, or can be ingested by eating food that has come in contact with mercury or by failing to wash mercury-contaminated hands before eating. Mercury vapor is highly toxic and long-term exposure to low concentrations of mercury can result in permanent neurological damage. Victims of mercury poisoning experience restlessness, sleeplessness, loss of appetite, faltering gait, tremor of the hands, unsteadiness, difficulty in concentrating, and memory loss.

A number of inspections dating back to the early 1970's revealed that workers at PTC's second floor manufacturing facility were not adequately protected from the dangers of mercury poisoning. Before the enactment of the Act, the Division of Industrial Hygiene of the State Department of Labor monitored workplace safety at PTC by conducting semiannual inspections of the PTC plant. In 1975, the Occupational Safety and Health Administration (OSHA) assumed responsibility for workplace safety. OSHA conducted four inspections of the facility between 1981 and 1984. These inspections revealed hazardous working conditions in the second floor manufacturing area. Workers did not wear protective gear, such as gloves or respirators, and the workplace was dangerously contaminated with mercury. Both William and Edward Pymm were warned of the dangers of mercury poisoning and were encouraged to adopt measures that would minimize the possibility of workers either ingesting liquid mercury or inhaling mercury vapors. PTC was twice cited by OSHA as a result of the workplace conditions observed on the second floor.

In 1985, OSHA learned that PTC was operating a clandestine mercury reclamation operation in the basement of the building. The defendants had omitted the basement area from any of the earlier inspections, despite the fact that OSHA inspectors had asked to see all of the area in which mercury was being used. When OSHA agents first confronted William Pymm about the reclamation facility, he denied that it even existed. Testimony at trial established that PTC had been recovering the mercury from broken thermometers since 1983. Vidal Rodriguez, a PTC employee since 1981, testified that he had fed the broken thermometers into a glass crusher as part of the reclamation process. The machine ground the thermometers, releasing the mercury, which was passed into a filtration trough, separated and collected. An initial inspection of the reclamation operation had revealed boxes loaded with broken thermometers piled against the walls with mercury seeping out of the boxes and leaking out onto the floor. Readings taken at this time revealed mercury vapor readings almost five times the level permitted by OSHA. Although the cellar was almost entirely without ventilation, Rodriguez for the first several months was without a respirator and only later was given a single respirator to be shared with another worker. In 1984, physicians examining Rodriguez noticed that he had developed neurological symptoms that were consistent with mercury poisoning. Experts testifying at trial attributed these abnormalities, including damage to Rodriguez's brain, to long-term exposure to mercury.

Defendants were charged with conspiracy in the fifth degree (Penal Law § 105.05[1]; falsifying business records in the first degree (Penal Law § 175.10); assault in the first degree (Penal Law § 120.10[4]; assault in the second degree (Penal Law § 120.20). The jury found the defendants guilty of all counts in the indictment. The Trial Justice set aside the verdict, holding that the State prosecution was preempted by the Federal Government's regulation of workplace safety under the Act. Additionally, the Trial Justice ruled that the evidence was legally insufficient to support the conspiracy and reckless endangerment counts of the indictment. The Appellate Division reversed, and we now affirm.

II.

The Act was enacted "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions" (29 U.S.C. § 651[b]. In declaring the purposes behind the Act, Congress also noted the importance of encouraging employers "to reduce the number of occupational safety and health hazards at their places of employment, and * * * to institute new and to perfect existing programs for providing safe and healthful working conditions" (29 U.S.C. § 651[b][1]. The Act directs the Secretary of Labor to promulgate health and safety standards for the workplace (see, 29 U.S.C. § 655) and authorizes the Secretary to conduct inspections and investigations to ensure that employers are complying with these standards. Section 5 requires employers to comply with all standards promulgated by the Secretary of Labor and additionally imposes a general duty to "furnish to [employees ] employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees" (Pub.L. 91-596, § 5[a][1], 29 U.S.C. § 654[a][1]. The Act was not enacted for the principal purpose of punishing employers for workplace deaths or injuries; rather, "[i]t authorizes the promulgation of health and safety standards and the issuance of citations in the hope that these will act to prevent deaths or injuries from ever occurring." (Whirlpool Corp. v. Marshall, 445 U.S. 1, 12, 100 S.Ct. 883, 890, 63 L.Ed.2d 154.)

The Act provides for both civil and criminal penalties for certain types of violations. These are spelled out in section 17 (Pub.L. 91-596, § 17, 29 U.S.C. § 666). In brief, willful or repeat violations of either a standard or of the general duty to provide a safe workplace are punishable by a civil penalty of not more than $10,000 (29 U.S.C. § 666[a]. Serious violations are punishable by a civil penalty of up to $1,000 for each violation (29 U.S.C. § 666[b]. A serious violation exists "if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment" (29 U.S.C. § 666[k]. Willful violations leading to the death of an employee are punishable, after conviction, by criminal fines and up to six months' imprisonment.

Section 18 addresses State jurisdiction over occupational health and safety issues (29 U.S.C. § 667). Section 18(a) provides that a State is free to assert jurisdiction over such an issue if there is no Federal standard already in effect (Pub.L. 91-596, § 18[a], 29 U.S.C. § 667[a]. Section 18(b) permits each State to submit its own plan for the development and enforcement of workplace health and safety standards to the Secretary of Labor for approval. If the State plan is approved, the State can reassume responsibility over workplace issues that are already the subject of Federal standards (29 U.S.C. § 667[b]. The Secretary cannot approve the State plan unless it is "at least as effective in providing safe and healthful employment and places of employment" as the Federal standard already in place (29 U.S.C. § 667[c][2].

The Act also contains a savings clause that addresses the continued viability of State statutory and common-law duties and liabilities in light of the comprehensive Federal regulatory scheme...