ELR Citation: ELR 20947
No(s). s. 86-5032, -5066 (3d Cir. Sep 12, 1986)

The court rules that the Pennsylvania Right-to-Know Act (Act), as applied to the manufacturing sector, is preempted in part by federal regulations of the Occupational Safety and Health Administration (OSHA) establishing the Hazard Communication Standard. The court first holds that the Act is severable under Pennsylvania law, and that the preemption of any one or more portions of the Act will not require preemption of the Act in its entirety. Next, the court holds that the requirement for manufacturing sector employers to survey hazardous substances, environmental hazards, and special hazards in the workplace is not preempted by OSHA's regulations because (1) the survey covers a broader range of substances than do the OSHA regulations, and (2) the resulting lists are compiled by the Pennsylvania Department of Labor and Industry for transmittal to emergency health and safety agencies, as well as employers and employees in the manufacturing sector. The Act as a whole is therefore not preempted because it deals with a broader range of hazards than those covered by the OSHA regulations, and goes beyond the scope of hazards in the workplace, covered by the Occupational Safety and Health Act (OSH Act). The court also holds that the Act's requirement that the employer post in every workplace a list of all hazardous substances found in the workplace is preempted since it is clearly a hazard communication, the very subject of the OSHA regulations.

The court further holds that the Act's requirement that all hazardous substance containers and pipelines be labelled with certain specified identification information is not entirely preempted by OSHA's labelling requirements. The purpose of the labelling is not limited to hazard communication to employees, but is also intended to benefit consumers, emergency safety personnel, and the public at large. The court also holds that the Act's labelling requirement is preempted where the containers or pipelines do not leave the workplace.

The court next holds that there is no preemption of the state requirement that Material Safety Data Sheets (MSDS) be provided to all purchasers of hazardous substances, despite a parallel federal requirement, because the state MSDS requires all the information of the federal MSDS and requires additional information relating to the preparation of the required employer surveys. The court holds that compliance with the state and federal requirements is coextensive, and because the state MSDS is also provided to public health and safety agencies, it serves a purpose broader than OSHA's mission workplace safety. As to the Act's requirement for manufacturing sector employers to communicate to their employees the contents of the MSDS, the court holds that the requirement is preempted by OSHA's regulations.

Finally, the court holds that programs educating and informing manufacturing sector employees of workplace hazards are preempted, except to the extent that they cover environmental hazards outside the scope of OSHA's regulations.

[The lower court opinion appears at 16 ELR 20383. A related opinion appears at 15 ELR 21030.]

Counsel are listed at 16 ELR 20383.

Before Weis and Sloviter, JJ.