ELR Citation: ELR 21030
No(s). s. 85-5087 et al (3d Cir. Oct 10, 1985)

The court holds that the Occupational Health and Safety Act (OSH Act) preempts the New Jersey Right-to-Know Act as applied to the identification and disclosure of workplace hazardous substances in the manufacturing sector, but does not preempt the state Act's provisions for regulation of employers outside the manufacturing sector, identification and disclosure of environmental hazardous substances, even by manufacturers, or development of a state list of hazardous substances. The court first rules that the OSH Act expressly preempts the state law with respect to workplace hazardous substances in the manufacturing sector. Section 18 of the OSH Act expressly preempts state law relating to issues addressed by standards set by the Occupational Health and Safety Administration unless the Secretary has approved a state plan. The parts of the state Act that address workplace employee safety and health fall directly within this prohibition, and no state plan has been approved. However, sections of the state Act that do not address occupational safety and health issues are not automatically preempted by the OSH Act, and must be looked at individually to determine whether they directly conflict with the federal law or prevent the accomplishment of congressional objectives in the OSH Act.

Turning to specific provisions of the state Act, the court first holds that the New Jersey governmental listing of hazardous substances and surveys of environmental and workplace hazards in all sectors of the economy are not preempted. They will not inhibit implementation of the federal rule, which relies on employees to list hazardous substances. The court next holds that the state requirement that employers complete workplace hazard surveys is preempted in the manufacturing sector, but not in other sectors. Related recordkeeping rules are preempted in the manufacturing sector, except the requirement that manufacturers keep and make available environmental hazard surveys. The court rules that the provision for funding by assessments against all New Jersey employers is not preempted since it is aimed at community health and safety, not just occupational health and safety. The court also rules that the OSH Act does not expressly preempt the state requirement that containers of environmental hazardous substances be labelled, but concludes it cannot determine as a matter of law whether the provision is an obstacle to the accomplishment of the objectives of the federal law. The issue was before the district court on a motion for summary judgment, and there are still disputed issues of material fact.

The court also holds that the preempted portions of the New Jersey statute are severable from the rest of the Act. An invalid provision is severable if that is in keeping with the legislative intent. Here, the legislature intended to protect all state residents by informing them of dangers resulting from hazardous substances. Although removing the invalid provisions makes the statute a little less complete, it does not prevent the legislative purpose from being served. Finally, the court rules that the provisions of the state Act requiring disclosure of some trade secret information and providing some protection to other trade secret information are neither preempted nor a taking without due process of law.

Counsel for Plaintiff
John J. Carlin Jr., Lisa Pollak, Martin Cronin
Farrell, Curtis, Carlin & Davidson
43 Maple Ave., P.O. Box 145, Morristown NJ 07960
(201) 267-8130

Counsel for Defendant
Michael S. Bokar, Deputy Attorney General
Richard J. Hughes Justice Complex, CN 112, Trenton NJ 08625
(609) 984-6500