ELR Citation: ELR 20065
No(s). 87 Civ. 2604 (JMW) (S.D.N.Y. Jul 31, 1987)

The court holds that New York City's training and certification program for asbestos workers is not preempted by the Occupational Safety and Health Act (OSHA) or its regulations. The court first holds that OSHA can preempt municipal laws, although the OSHA section discussing preemption of local laws only refers to "state" laws. Since a municipality is a political subdivision of a state, the preemption of a state law also preempts identical municipal laws. Moreover, to exempt municipal laws from preemption analysis under OSHA would undermine the Act's goal of standardizing certain workplace safety requirements throughout the country.

The court holds that OSHA and its regulations do not explicitly preempt the New York City asbestos certification and training program. Plaintiffs have failed to show any direct conflict between the city program and OSHA or its regulations. The court also holds that the city program does not relate to an issue on which a federal standard has been promulgated. New York City's program goes beyond OSHA's revised construction standard, which only addresses worker protection, by attempting to protect the health both of asbestos workers and the public. That the Occupational Safety and Health Administration considered but rejected promulgating regulations establishing a similar training and certification course does not indicate that OSHA's revised construction standard is intended to preempt such local programs. The court also holds that OSHA does not implicitly preempt the city program. OSHA does not bar all state programs that address the public health threat of asbestos, and it is logical for New York City to include training measures for the safe handling of asbestos in the same certification program that addresses public health concerns. The language in OSHA does not express an intent to supersede all state laws and, in fact, OSHA encourages states to assume responsibility for administering and enforcing occupational safety and health laws. The Asbestos Hazard Emergency Response Act invites state governments to develop comprehensive training and certification programs for workers dealing with asbestos, and notes the lack of general federal regulation concerning the hazards of asbestos exposure. The court distinguishes another decision invalidating a state asbestos training program on the grounds that the program at issue in that case did not address public health concerns falling outside of OSHA's ambit to the same extent that New York City's program does. To the extent that the cases are not distinguishable, the court declines to follow the reasoning of the other decision. The court refuses to consider invalidating only the aspects of the New York program that relate to worker health because to do so would be to dictate to the local government what topics its training program must teach, and such an approach would subject states to intolerable supervision and render the training courses incomplete and misleading.

Finally, the court holds that the certification program does not violate the due process rights of the city contractors involved in asbestos removal. State and local goverments have broad powers to protect public health and safety, and states may require training and licensing for workers involved in hazardous work. The city provided adequate notice of the date when asbestos workers were required to have certificates, established a sufficient number of training courses for the community's asbestos workforce, and issued precise regulations specifying the requirements of the program.

Counsel for Plaintiffs
Paul A. Gallay, Sharon E. Jaffe
Cole & Deitz
175 Water St., New York NY 10038
(212) 269-2500

Counsel for Defendants
Virginia Waters
Office of Corporate Counsel
100 Church St., New York NY 10007
(718) 566-3929