ELR Citation: ELR 21317
No(s). 87-7762 (2d Cir. Aug 17, 1988)

The court holds that the Occupational Safety and Health Act (OSH Act) and its regulations partially preempt New York City's training and certification program for asbestos abatement workers. The court first holds that OSH Act §18's express preemption provisions preempt only those portions of the city's program that do not have a legitimate and substantial purpose apart from the promotion of occupational health and safety. The court holds that the preemptive effect of these provisions extends to local, as well as state, regulations. While OSH Act §18 refers only to "state" standards and the Act's definition of "state" does not mention local governments, the definition does not appear to be limited to the governmental entities actually listed. Moreover, it is well-settled that a municipality is merely a political subdivision of a state. In addition, the Occupational Health and Safety Administration (OSHA) has asserted that local laws are included within the scope of §18.

The court holds that OSHA's revised construction standard, which is designed to protect the health of asbestos workers, precludes the city from promulgating an occupational safety or health standard that relates to the issue of abatement workers' exposure to asbestos. The court finds that the city's program has dual purposes, to safeguard the public health and to safeguard employee safety and health. The court holds that in order to avoid preemption, the city must demonstrate that for each of its requirements there is a legitimate and substantial purpose apart from protecting asbestos workers. Applying this test, the court holds that only the city's medical surveillance and respiratory protection regulations for asbestos workers are expressly preempted, since the programs' other requirements are designed to promote public safety and health. The court also holds that the revised construction standard does not impliedly preempt any of the city's program, since there is no evidence that Congress or OSHA intended the federal government to occupy the entire field of worker training and certification with regard to any safety aspects of asbestos. The court holds that the city's regulations do not conflict with the federal standard. Finally, the court holds that the invalid provisions of the city's standard are severable from the remainder of the program.

[The district court's decision is published at 18 ELR 20065.]

Counsel for Plaintiffs-Appellants
Sharon E. Jaffe
Cole & Dietz
175 Water St., New York NY 10038
(212) 269-2500

Counsel for Defendants-Appellees
Kristin M. Helmers
Corporation Counsel for City of New York
100 Church St., New York NY 10007
(212) 566-4515

Before Pierce and Stanton,^[*] JJ.