Document RazOak2xN1r9KwQLOJ7QaQq7v

Illinois v. Chicago Magnet Witt Corp. 13 OSHC 1337 ILLINOIS * CHICAGO MAGNET WIRE CORP. Appellate Cowl of Illinois n'b First Judicial District <1" Opinion upholding dismissal of criminal indictments for workplace conditions on round that Occupational Safety and Health Act pre-empts criminal prosecution. PEOPLE OF THE STATE OF ILLI NOIS, Plaintiff-Appellant v. CHICAGO MAGNET WIRE CORP., an Illinois Corp., ANTHONY JORDAN. KEVIN KEANE, GERALD COLBY, ALLAN SI MON and FRANK ASTA. Defendants- Appeliees, No. 86-0114, June 29, 1987. Richard M. Daley, state's attorney, Chi cago, III., for plaintiff-appellant. George J. Cotsirilos and Robert M. Ste phenson, Chicago, III., for Chicago Magnet Wire Corp. Patrick A. Tuite, Chicago. III., for Kevin Keane. Harvey M. Silets. Chicago, III., for An thony Jordan. William J. Martin, Oak Park, III., for Gerald Colby, Allan Simon and Frank Asta. Before Justices O'Connor. Campbell and Buckley. CRIMINAL PROCEEDINGS Indictments -- Conduct Relating to Working Conditions -- Pre-emption by OSH Act >98.01 >5.15 Review of criminal indictments shows that conduct state is attempting to regulate is related to working conditions covered by federal Occupational Safety and Health Act, and although state has expressed valid and legitimate concerns about consequences of federal pre-emption on its ability to con trol activities of employers. Congress has evidenced intent that criminal sanctions not be imposed for activities involving work place health and safety except in highly limited circumstances, which are not present here: accordingly, criminal indict ments issued against corporation and its corporate officers are dismissed. Full Text of Decision JUSTICE O'CONNOR delivered the opin ion of the court: This is an appeal from an order of the circuit court of Cook County dismissing various indictments and informations against Chicago Magnet Wire Corporation (CMW), and five corporate officials. An thony Jordan. Kevin Keane. Gerald Colby, Allan Simon, and Frank Asta The sole issue on appeal is whether state criminal prosecutions based on conditions in the workplace are preempted by the Occupa tional Safety and Health Act of 1970 (OSHA) <29 U.S.C. $651 et stq (1982) ) We affirm. On June 26. 1985, the Grand Jury of Cook County voted indictments against CMW and five of its corporate officials, charging each with multiple counts of ag gravated battery and reckless conduct pur suant to III. Rev. Stat. 1985, ch. 38. pars. 124(a) and (c) and 12-5 and with violating the conspiracy statute. III. Rev. Slat. 1985, ch. 38, par. 8-2(a). One set of aggravated battery indict ments, charging a violation of III. Rev. Stat. 1985, ch. 38. par. 124(a). alleged that CMW and the individual defendants, while acting in their official capacity, exposed the named employees to numerous federally regulated substances in the workplace; failed to provide necessary safety instruc tions and equipment and health monitoring systems in the workplace; provided inad equate ventilation in the workplace and maintained dangerously overheated working conditions while the employees were ex posed to the federally regulated substances. It was alleged that as a consequence of these acts, defendants violated their duty to provide a safe workplace for employees and caused great bodily harm to the named employees with the conscious awareness that a substantial probability existed that their acts would cause great bodily harm. The second set of aggravated battery in dictments alleged that CMW and the indi vidual defendants knowingly committed acts which would cause named employees to take by deception and for other than medi cal purposes federally regulated substances' and that such acts harmed the employees in violation of Ill.Rev.Stat. 1985. ch. 38, par 124(c). The reckless conduct charges alleged that defendants, in conducting the business of coating wire, grossly deviated from the standard of care which a reasonable em ployer would exercise in the same situation and thereby violated their duty to provide a safe workplace in violation of lll.Rev.Stat. 1985. ch. 38. par. 12-5. The conspiracy indictment charged both CMW and the individual defendants with conspiring against the named employees with the intent to commit aggravated bat tery in violation of Ill.Rev.Stat. 1985, ch. 38. par. 8-2(a). PRIVILEGED AND "CONFIDENTIAL MATERIAL SUBJECT TO PROTECTIVE ORDER" UCC 079528 13 OSHC 1338 Illinois v. Chicago Magnet Wire Corp. Defendant* filed a joint motion to dismiss and on December 13. 1983, the court dismissed all charges against them, finding that OSHA preempted Illinois from apply* ing Illinois criminal law to conduct involv ing federally regulated occupational safety and health issues within the workplace. The State filed various informations which were dismissed on the same basis and this appeal followed. The State contends that the indictments should be reinstated as the prosecutions were undertaken in'pursuance of the state's police power which was neither expressly nor impliedly preempted by Congress. The defendants contend that the criminal charges are expressly preempted by OSHA and that the dismissal of the charges should be affirmed. State laws are preempted when Congress has declared its intent, either explicitly or implicitly, to occupy a certain area of law. (Silkwood v. Kerr-McGee Corp. (1984), 464 U.S. 238. 248, 78 L.Ed.2d 443, 104 S. Ct. 615; Jones v. Rath Packing Co. (1977), 430 U.S. 519, 525, 51 L.Ed.2d 604, 97 S. Ct. 1305.) Where preemptive intent is not expressly stated in the statute, the intent of Congress must be derived from the statu tory language, from the comprehensiveness of the regulatory scheme, from the legisla tive history of the statute, or from the fact that the Federal and State statutes at issue conflict. (See Hillsborough County. Flor ida v. Automated Medical Laboratories (1985)______U.S----------- 85 L.Ed.2d 714, 105 S. Ct. 2371.) In our view, the compre hensiveness of the Occupational Safety and Health Act. in conjunction with the fact that the states have been afforded the op portunity to develop their own regulatory schemes, evidences a Congressional intent to preempt the State from applying its criminal statutes to conditions in the work place that are specifically regulated by OSHA. Congress enacted OSHA in 1970 "to as sure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our hu man resources." (29 U.-S.C.-sec. 651(b) (1982).) Section 655 of the Act expressly provides for the adoption of Federal stan dards of industrial safety, and while the Federal standards are given primacy under the statute, the states are permitted to exer cise independent state action under certain circumstances. A State agency may assert jurisdiction over an occupational safety or health issue if there is no Federal standard in effect (29 U.S.C. sec. 667 (a)), or a State may submit its own enforcement plan to the United States Secretary of Labor for approval pur suant to 29 U.S.C. sec. 667(b). In the ab sence of a State plan which has been ap proved by the Secretary of Labor, State laws related to working conditions regulated by OSHA are preempted. The preemptive effect of section 667(b) was recognized by the Illinois Supreme Court in Stanislawski v. Industrial Com mission (1983), 99 ll|.2d. 36, 39-40, 457 N.E.2d 399, in which the court stated that under OSHA. "the only method by which a State may assume responsibility for devel opment and enforcement of safety and health standards with respect to which Fed eral standards have been adopted" is through an approved State plan, under the Act. (See also United Air Lints, Inc. v. Occupational Safety A Health Appeals Board (mi). 32 Cal.3d 762. 772, 654 P.2d 157 (a State is preempted from regulating matters governed by OSHA standards in the absence of the adoption of a federally approved State plan); Five Migrant Farm workers v. Hoffman (1975), 136 N.J.Super. 242, 247, 345 A.2d 378. (OSHA supersedes all State laws with respect to general work ing conditions).) Illinois submitted a State plan, but it was withdrawn on June 30, 1975. (See Stanis lawski v. Industrial Commission (1983), 99 III.2d 36, 39. 457 N.E.2d 399.) The State's position, however, is that it was under no obligation to comply with section 667(b) by developing a State plan in order to pros ecute defendants under State criminal laws. The State argues that the preemptive effect of sections 667(a) and (b) is limited to State administrative schemes, such as the one at issue in Stanislawski, which duplicate OSHA's regulation of health and safety standards, but that it was not intended to extend to state criminal laws as they might apply in the workplace. The main thrust of the State's argument is that the prosecutions at issue here are not preempted because they are based on the application of general criminal laws rather than on the enforcement of specific work place health and safety regulations. To sup port its assertion that Congress explicitly intended to leave preexisting State criminal laws undisturbed, the state cites section 653(b)(4) of the Act which provides: Nothing in this chapter shall be con strued to supersede or in any manner affect any workman's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers n4 ---- -nder any PRIVILEGED AND "CONFIDENTIAL MATERIAL SUBJECT TO PROTECTIVE ORDER" B. B. Riverboats Inc. through employees skin result embolism. SHIP REPAIRING 5. Open Decks -- Lack of Guardr Impossibility of Compliance >110.510 Employer established that until ol was replaced, it was not possible to guardrails on rusted open deck b deck did not provide adequate supprailing thereby requiring vacation o lion for alleged violation of 29 1915.73(d), for failure to place gua around open deck, on ground that c ance with cited standard was impossi 6. Personal Flotation Devices >270. Although employer did provide pe flotation devices to welders working vessel's unguarded deck edge, employ not require welders to wear those d thereby violating 29 CFR 1915.* which requires employees to wear pet flotation devices when exposed to dro\ hazard. 7. Bench and Portable Grinders -- G ing -- Protective Eye Equipment >270. Totality of evidence establishes that ployer knew that bench grinder lacked rest, that cursory examination would detected lack of guarding on portable g er, and that employees' failure to wear tective eye equipment while grinding not isolated occurrence but resulted employer's failure to establish unifoi communicated and enforced work rulr quiring use of eye protective cquiprr accordingly, citations for violations ol CFR 1915.134(c), and 29 C 1915.134(j). are affirmed. Digest of Judge 's Report [DigestJ Following an inspection of worksite. B. B. Riverboats. an operatoi excursion vessels on the Ohio River, cited for ten violations of the Occupatic Safety and Health Act stemming from drowning death of a welder who was \ forming repair work on the Captain Ber company vessel. In this proceeding. B Riverboats contests all of the citations. In defense to the citations. B. B. Riv boats, citing Section 4(b)( I) of the Occu, tional Safety and Health Act, argues t) the Occupational Safely and Health P ministration lacks jurisdiction over the co pany's activities because the U.S. Co; Guard exercises comprehensive author ucc 079529 Establishment Inspection of St. Charles Manufacturing Co. I3 0SHC 13)9 law with respect to injuries, diseases, or death of employees arising out of. or in the course of, employment. 29 U-S.C. {653(b)(4) (1982). In our view, this section of the Act does not permit the State to prosecute conduct or conditions in the workplace under State criminal laws in so far as the conduct or conditions are regulated by OSHA. The courts which have interpreted section 653(b)(4) have consistently found that the purpose of this section was to preserve the existing private rights of injured employees relative to workman's compensation. State tort law, and other common law remedies against employers but not to create any additional civil remedies in favor of employ ees. See. e.g. Johnson v. Hoppers Co. Inc. (N.D.Ohio 1981). 524 F.Supp. 1182. 1189, appeal dismissed (6th Cir. 1982), 705 F.2d 454: United Steelworkers of America v, Marshall (D C. Cir. 1980), 647 F.2d 1189. 1235-36 [8 OSHC 1810. 1840], cert, denied (1981). 453 US. 913 (II OSHC 1264]; Berardi v, Getty Refining i. Marketing Co. (1980). 435 N.Y.S.2d 212. 215-216. 107 Misc.2d 451. The determinative factor is not whether the State is seeking to enforce a criminal law of general application rather than spe cific workplace health and safety regula tions but what conduct the state is seeking to regulate. (See NDK Corp. v. Local 1550 of the United Food and Commercial Work ers International Union (1984), 128 III.App.3d 207, 470 N.E.2d 565.) The State would not be foreclosed from applying its criminal laws in the workplace if the pros ecutions charged the defendants with crimes not involving working conditions. The conduct the State seeks to regulate here, however, as evidenced by the language of the indictments, is conduct related to working conditions now regulated by OSHA. We therefore believe that the trial court properly found that the prosecutions were preempted. The State's reliance on Silkwood v. KerrMcGee Corp. (1984). 464 U.S. 238. 78 L.Ed.2d 443, 104 S.Ci. 615. is misplaced. In Silkwood. the Supreme Court reversed a Court of Appeals decision which held that the Atomic Energy Act, and the Nuclear Regulatory Commission established by it, preempted State law and precluded an award of punitive damages for injuries caused by exposure to radiation. The Su preme Court held that the award of punitive damages under State tort law was not pre empts! in that allowing a plaintiff to recov er for injuries caused by nuclear hazards was not inconsistent with the Federal regu latory scheme developed by the Nuclear Regulatory Commission. Silkwood v. KerrMcGee Corp. (1984). 464 U.S. 239. 257-58. 78 L.Ed.2d 443. 104S.CI. 615. Silkwood was decided under the Atomic Energy Act, to which OSHA does not apply. In addition, the Court in Silkwood distinguished between "state regulation of the safety aspects of nuclear energy," which was held preempted, and State law to com pensate injured persons, which the Court held was not preempted. Here, although the Slate characterizes its purpose as punitive and deterrent and therefore permissible un der Silkwood, in fact it seeks to regulate occupational safety and health through the application of criminal laws, which is imper missible under section 18(b) of OSHA. 29 U.S.C. |667(b)(1982). The State has expressed valid and legiti mate concerns about the consequences of preemption of its ability to control the ac tivities of employers. But Congress has evi denced an intent that criminal sanctions should not be imposed for activities involv ing workplace health and safety except in highly limited circumstances, and that health and safety requirements should be established through standard-setting, which provides employers with clear and detailed notice of their legal obligations. Illinois' view that employers may be held criminally liable for workplace injuries or illness, re gardless of their compliance with OSHA standards, would lead to piecemeal and in consistent prosecutions of regulatory viola tions throughout the states, a result that Congress sought to preclude in enacting OSHA. For the foregoing reasons, we affirm the decision of the circuit court of Cook County dismissing the indictments against Chicago Magnet Wire and its corporate officers. Judgment affirmed. CAMPBELL and BUCKLEY. J.J.. concur. ESTABLISHMENT INSPECTION OF ST. CHARLES MANUFACTUR ING CO. US. District Court for the Northern District of Illinois Ruling upholding US. Magistrate's award of attorneys' fees but denying costs incurred in prosecuting employer for con tempt in refusing to obey OSHA inspection warrant. PRIVILEGED AND "CONFIDENTIAL MATERIAL SUBJECT TO PROTECTIVE ORDER" UCC 079530 1-88 LITIGATION 18 ELR 20065 A Ui <> ft h omo z I- UJ O j ft ft HI d Q. Ill HI t O 0 JZhO > UJ H `DU Hi o- z r> 5 9 and indeed the purpose and effect of the ests. This question must be answered in marginally effective in doing so. There is program is solely to protect commercial the negative because in a situation like this little evidence relating to the effect of the timber interests and private property, in the Secretary is not managing the wilder program on the beetle's tendency, if any, to cluding, of course, national forests in which ness but acting contrary to wilderness poli move out of the Wilderness Areas. Con more draconian steps can be taken to elimi cy for the benefit of outsiders. versely, the Court hss not received any nate the beetle. The extensive cutting in the Wilderness Areas that was being car ried out under the program until prelimi narily enjoined was conducted solely to aid outside adjacent property interests, not to further wilderness interests or to further national wilderness policy.1 Both plaintiffs and the Secretary agree that Congress also intended by Section 4(dXl) to authorize the Secretary to take actions within Wilderness Areas where nec essary to control fire, insects, or disease A fair reading of the Wilderness Act places a burden on the Secretary af firmatively to justify his actions under these circumstances. Where such actions are shown to contravene wilderness values guaranteed by the Wilderness Act, as they do here, then the Secretary must, when challenged, justify them by demonstrating they are necessary to effectively control the threatened outside harm that prompts the action being taken. Here the Secretary has not addressed this affirmative burden. material indicating whether adjacent pine land, which has been already infected by the beetle, could be managed with less effective controls in the absence of the accompanying Wilderness authority. Nor is the Secretary's weighing of alternatives apparent. The record strongly suggests that the beetle cannot be irradicated and the solution of the problem is long-term, dependent for its ultimate efficacy upon further research and scientific study. While the Secretary's program covers from spreading beyond the areas and Plaintiffs have amply demonstrated that the South, this particular case only con harming adjacent or neighboring private or the Southern Pine Beetle program as car cerns a limited aspect. Serious problems commercial interests. The legislative histo ried out in these three Wilderness Areas exist in other southern regions and indeed ry sustains this view. Plaintiffs' case was wholly antithetical to the wilderness the United States District Court for the therefore poses the declared national policy policy established by Congress. Eastern District of Texas has before it a to preserve pristine wilderness ecology and values into sharp juxtaposition with the program's effectiveness, or lack of effec tiveness, in controlling the harm being caused by pine beetles on adjacent proper ty. Management of wilderness areas as such is not involved and the program could not be approved as a wilderness-manage ment program. Unfortunately, the material submitted on the motion provides no clear answers to the dilemma suggested. Pine beetles have a considerable range of flight and studies leave in doubt the extent to which they may migrate to or from adjacent pine land. There is no way the Court can determine from the material submitted to what extent beetle migration out of these particular Wilderness Areas into commercial timber properties may be adequately controlled under the program. Nor is it clear wheth er adjacent properties can be equally well controlled against beetle infestation by measures taken outside of the Wilderness Areas that would be wholly inappropriate within the Wilderness Areas. The destruction of many acres of pine trees by chain sawing, and chemical spray ing accompanied by noise and personnel in s continuing process unlimited in scope, is hardly consonant with preservation and protection of these areas in their natural state. These are delicate, sensitive places where the often mysterious and unpre dictable process of nature were to be pre served for the study and enjoyment of mankind. Congress directed that man must tread lightly in these areas, in awe and with respect Ruthless intrusion in disregard for these values was condemned as a matter of national policy. While many facts remain unclear, the record before the Court suggests that within Wilderness Ar eas, as mature pines are destroyed by the beetle there will be less and less possibility of outbreaks infecting neighboring areas. Only a clear necessity for upsetting the equilibrium of the ecology could justify this highly injurious, semi-experimental venture of limited effectiveness. The Secretary has failed to demon strate that the Southern Pine Beetle pro challenge to the Southern Pine Beetle pro gram as it affects five Wilderness Areas in Texas, see Sierra Club v. Lyng, No. L-8569-CA (E.D.Tex.). That Court has also been awaiting t&e EIS. The problems in different regions in all probability vary and what may be a necessity in one Wilderness Area, or effective there, may not be so in another. The very generality of the Secre tary's approach suggests inadequate sensi tivity to his wilderness duties. Because this Court's analysis raises is sues not fully addressed in the papers and because it suggests a need to particularize any approach to the Southern Pine Beetle program in terms of each Wilderness Ares, area by area, the Court has concluded that final resolution of the motion can most appropriately await the EIS. The Court directs the parties to file further papers in support of or opposition to the motion with in 30 days of the publication of the final EIS with emphasis upon the Secretary's burdens as set out herein in the light of whatever Southern Pine Beetle program emerges in the EIS. In the meantime, the gram as carried out in the three Wilderness preliminary injunction remains in effect Thus this case does not involve the Areas is necessary to control the presence and final action on the motion will be held management of Wilderness Areas as such. of that pest in neighboring pine forests or in abeyance. An appropriate Order is filed Rather, it presents a different question, that it has in any way been more than herewith. one that is not fully addressed by the Act itself. That question is whether the Secre Environmental Encapsulating Corp. v. City of New Y rk tary has been given the same Section No. 87 Civ. 2604 (JMW) (666 F. Supp. 5335) (S.D.N.Y. July 31,1987) KdXl) broad management discretion previ The court holds that New York City's training and certification program for asbestos ously noted when he takes actions within workers is not preempted by the Occupational Safety and Health Act (OSHA) or its the Wilderness Areas for the benefit of regulations. The court first holds that OSHA can preempt municipal laws, although outside commercial and other private inter-* 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 t. To (he extent any cutting may have been desir preempts identical municipal laws. Moreover, to exempt municipal laws from preemp able to prevent undue harm to the rtdcockaded woodpecker, such cutting would be minor due to the very few woodpecker habitats in these areas. This issue could be addressed in specific terms along the lines suggested by the Coun's preliminary injunction if the program were tion analysis under OSHA would undermine the Act's goal of standardizing certain work place 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 abandoned. also holds that the city program does not relate to an issue on which a federal standard UCC 079531 18 ELR 20066 ENVIRONMENTAL LAW REPORTER I-88 has been promulgated. New York City's program goes beyond OSHA's revised construc tion 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 preempilthe 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 com prehensive 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 con cerns falling outside of OSHA's ambit to the same extent that New York City's pro gram 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 pro cess 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 suf ficient number of training courses for the community's asbestos workforce, and issued precise regulations specifying the requirements of the program. Counsellor 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 to Local Law 76, the Council announced the law's purpose: to correct health and safety hazards to workers and the public caused by airborne asbestos: [T]he predominant cause of asbestos be coming airborne is due to the perform ance of building renovation and demoli tion without adequate adherence to pro cedures for safeguarding workers and the general public, by persons who have not received adequate training in the handling of materials containing asbes tos. Therefore, it is the-purpose of this law to safeguard the public health by requiring that renovation or demolition projects which disturb asbestos be conducted in accordance with the procedures estab lished pursuant to the provisions of this local law and that workers who handle materials containing asbestos receive ap propriate training. Accordingly, the local law states: "It shall be unlawful for any individual to handle friable asbestos material in the course of performing work for compensation unless such individual is a holder of a current, valid asbestos handling certificate." N.Y. City Admin.Code 24-146.1(b)(1). The law further mandates: "The [DEP] commis sioner shall promulgate regulations estab lishing criteria for certifying individuals as eligible to receive an asbestos handling cer tificate and for certifying programs as ap proved safety and health programs. The commissioner may restrict the asbestos handling certificate as to certain supervi sory snd non-supervisory functions and re sponsibilities." Id. st i (dXl). WALKER, District Judge: INTRODUCTION Plaintiffs Environmental Encapsulating Corp. ("Environmental Encapsulating"), et al are New York City contractors engaged in the work of asbestos removal incidental demolition or renovation. Plaintiffs re brought the instant action for a deratory judgment invalidating certain filiations ("the DEP regulations"), >pted on November 19, 1986 by Defendt* The City of New York ("the City") and e New York Department of EnvironmenProlection ("the DEP"). These regule ns require a training program for emijees who handle asbestos, after which me employees receive a certificate authoing their future work with asbettoe he certification program"). Plaintiffs have moved for a preliminary unction preventing the enforcement of > DEP regulations. Defendants have Ms-moved for summary judgment dis using plaintiffs' complaint,1 I. Tbe Court also heard oral argument and re- For the reasons set forth below, plain tiffs' motion for a preliminary injunction is denied. Defendants' motion for summary judgment is granted. STATEMENT OF FACTS On November 20, 1985, the New York City Council enacted Local Law 76, which required the DEP to establish "criteria for certifying programs as approved safety and health programs."* In the preamble ceived pspcfi in opposition to plaintiffs' motion from two groups appearing as amicus curias. Tbe law firm of Bcrle, Kass It Case served as amicus counsel for a group of seven organiza tions: The Brooklyn Lung Association, The New York City Clean Air Campaign. Tbe National Campaign Against Toxics, The New York City Committee for Occupational Safety and Health, The New York Public Interest Research Croup, The Natural Resources Defense Council, and The Alliance for Consumer Rights. The offices of Morris 1. Eiscn. P.C., served as amicus coun sel to the White Lung Association, which offers a certification training course approved by the City. A The substantive provisions of Local Law 76 of IMS are codified at N.Y. City Code S 24-146.1. On November 19, 1986, the DEP first published the mandatory curriculum for the certification program in the City Record. This publication was repeated on December 1, 1986. Neither issue of the City Record specified the date when the certification requirement would become ef fective. On December 16. 1986, the City mailed notices to approximately 1,200 contractors, including the five plaintiffs bringing the instant action, stating that the City would require employee certification as of April 1, 1987. On December 22, 1986, Mayor Koch signed Local Law 80, passed by the New York City Council on November 20, 1986 as Intro. No. 731 of 1986, which required as bestos workers to hold the prescribed train ing certificate as of April 1, 1987. After this date, unless contractors could show that each employee working on any renova tion or demolition project involving asbes tos held a valid certificate, defendants would refuse to grant those contractors a building or demolition permit Under the DEP regulations, defendants also could fine contractors up to $10,000 "per viola- UCC 079532 PRIVILEGED AND " CONFIDENTIAL MATERIAL SUBJECT TO PROTECTIVE ORDER" 1-88 LITIGATION 18 ELR 20067 bon" for using uncertified employee*, end could revoke previously issued building and demolition permits. Under the DEP regulations promulgated pursuant to Local Law 76 (hereinafter cited as Asbestos Reputation!), where asbestos is to be "disturbed" by a building renova tion or demolition worker, that worker must possess a valid "handling certificate." An employee seeking to acquire a handling certificate must complete a four-day train ing course, taught in a program approved by the DEP, at the conclusion of which the employee must pass a two-hour written examination. Asbestos Regulations H 8110-11. The certificate ia renewable every two years, upon completion of an additional six hours of classes. Id at 8122, 8133. Employees overseeing as bestos work must have a "supervisor's cer tificate," issued after the employee has re ceived an additional six hours of instruction beyond that required for a "handling certif icate." Id. at 8112. The DEP regulations specify that any course leading to employee certification must cover specific subjects related to as bestos work, including; 1. A discussion of asbestos-related diseases and methods for preventing them (id at j 8111(4), 8111(5)); Z Methods for minimizing the generation of airborne asbestos fibers (id at 5 8111(12)); 3- Methods for minimizing the spread of any airborne asbestos fibers gen erated by asbestos work (id. at $$ 8111(13), 8111(14)); 4. Methods for minimizing as bestos contamination during an emergency situation, such as an explosion or fire (id at 6111(15)); 5. Personal hygiene tech niques designed to reduce the amount of asbestos fibers carried from a worksite on employees' clothes or bodies (id at 5 8111(16)). Plaintiffs estimate, and defendant* do not dispute, the total cost to each worker of obtaining a certificate, including both a 8100 certification fee payable to the City and training course fees, to be about 1600 per worker. As of May 11, 1987, about 1.200 workers had received certificates af ter completing the required course at one of 15 approved training classes.* Defend ants estimate that at least 200 to 250 addi tional workers will have received these cer tificates each week since May 11. The certification program is the most recent part of a broader city initiative aimed at reducing public exposure to asbes tos fibers. In 1972, the New York City Council enacted New York City Air Pollu tion Control Code f 24-141, which prohibit ed the use of asbestos in building construe- 3. Of the fifteen approved training count*, eight tee taught in New York, three in New Jersey, one in Philadelphia one in Maryland, end one in Washington. D.C. tion or repair. In 1983, the City initiated a $24 million Asbe*toe Evaluation Program, designed to measure the level of asbestos concentration st some 1,500 buildings and to fund corrective work st the most toxic of these sites. On April 17, 1987, this Court entered s dards that aasurtf"t)Kf greatest protection of the safety orWalth of the af'.^ted employees." Id st { 655(a). Plaintiffs as sert that either the statutory provisions of OSHA or the accompanying administrative standards preempt the City's certification program. temporary restraining order preventing the City from enforcing the certification pro gram against plaintiffs for 10 days. Sub sequently, all parties agreed to extend this temporary restraining order until the date of this Court's decision on plaintiffs' mo tion for a preliminary injunction. 1. Applicability of OSHA. In opposition to plaintiffs' preemp tion argument defendants first argue that the OSHA Revised Construction Standard cannot preempt the City's certification pro gram, since at most OSHA may preempt state law, not local or municipal law. De DISCUSSION In urging this Court to invalidate the certification program, plaintiffs' primarily argue that the federal Occupational Safety and Health Act preempts this state regula tion. Plaintiffs also argue that the sub stance and implementation of the certifica tion program violates the due process clause of the fourteenth amendment. For the reasons set forth below, these argu ments are without merit fendants base this argument on the fact that the OSHA section discussing preemp tion of local laws uses the term "state," as opposed to "states snd their political subdi visions." 29 U.S.C. 55 652(7), 667. De fendant! road this language as evidencing a congressional intent only to preempt state laws in conflict with OSHA, while preserving all worker safety programs passed by municipal and other local govern ments--* reading endorsed by one recent decision. Ohio Manufacturers Associa A. OSHA PREEMPTION. tion v. City ofAkron, 801 F.2d 824,828-31 (6th Cir.1986). In determining whether federal law preempts an otherwise valid state law or regulation, "we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Ray v. Atlantic Richfield Co., 435 U.S. 151, 157, 98 S.Ct 988, 994, 55 LEd.2d 179 (1978); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct 1146, 1152, 91 L.Ed. 1447 (1947). Accord Pettis Moving Co. v. Rob erts, 784 F.2d 439, 441 (2d Cir.1986). Con gress must state its intent to preempt state law with particular emphasis and clarity "when local health and safety provisions are endangered," as in the instant case. Ohio Manufacturer* ' Association v. City of Akron, 801 F.2d 824, 831 (6th Cir.1986); accord Jones v. Rath Packing Co., 430 The Court rejects defendants' contention that Congnaa did not intend to preempt any municipal laws in enacting OSHA. The Court begins with the settled proposi tion that "a municipality ia merely a politi cal subdivision of the State from which its authority derives." United Building Construction Trades Council v. Mayor Council of tAe City of Camden, 465 U.S. 208, 215, 104 S.Ct 1020, 1026, 79 LEd.2d 249 (1984). Accord Trenton v. New Jer sey, 262 U.S. 182,187. 43 S.Ct 534, 536-37, 67 LEd. 937 (1923); Standard Scale Co. v. Farrell, 249 U.S. 571, 576, 39 S.Ct 380. 382, 63 L.Ed.2d 780 (1919). To hold that a federal statute may preempt various state laws but not identical local laws would contravene this established principle by al lowing local governments broader legisla tive powers than the superior state govern U.S. 519, 525, 97 S.Ct 1305, 1309-10, 51 ments. Previous preemption decisions typi LEd.2d 604 (1977).* cally have refused to tpply different stan Congress adopted the Occupational Safe dards to state legislation and municipal or ty and Health Act ("OSHA") of 1970, "to dinances, but instead have held that "for assure so far is possible every working the purposes of the Supremacy Clause, the man and woman in the Nation safe and constitutionality of local ordinances is ana healthful conditions and to preserve our lyzed in the same way as that of statewide human resources -- " 29 U.S.C. } 651. laws." Hilleborough County v. Automat In pursuit of this goal, the Act authorized ed Medical Laboratories, Inc., 471 U5. the Secretary of Labor to promulgate stan-4 707, 713, 105 S.Ct 2371, 2375, 85 L.Ed.2d 714 (1985). 4. Like federal statutes, administrative provi sions adopted pursuant to a federal law may preempt state and local statutes. HilUborouth County v. Automated Medico! Laboratories, Inc, 471 US 707, 713, 105 S.Ct 2371, 2375, S5 L.Ed2d 714 (19S5); Fidelity Federal Savings and Lean Association v. De La Cueste, 454 US 141, 153-54, 102 S-Ct 3014, 3022-23, 73 LEdJd 464 (1982). A holding that OSHA preempts only state legislation also would prove inconsist ent with a congressional purpose underly ing the adoption of this act Courts have recognized that the goal of standardizing certain workplace safety requirements throughout the United States constitutes p r iv ile g e d and ^FIDENTIAL MATE JECT TO PROTEC ORDER" UCC 079533 18 ELR 20068 V ENVIRONMENTAL LAW REPORTER 1-88 . of the purposes that led to the enact* In the instant ease, plaintiffs have failed vide an annual training program, designed ment of OSHA--and a central purpose un to show any direct conflict between the to inform employees of the health dangers derlying the statute's preemption provision. City's certification program and any OSHA accompanying asbestos work and the See, t.g.. Ohio Manufacturers' Associa statutory provision or agency regulation. means of minimizing these risks. Id, at tion v. City of Akron, 801 F.2d 824, 831 Cf National Tank Truck Carriers, Inc. v. 1926.58<kX3). (6th Cir.1986); Donovan v. Oil, Chemical A Atomic Workers International Union, 718 F.2d 1341, 1358 (5th Cir.1988), cert denied, 466 U.S. 971, 104 S.Ct 2344, 80 L-Ed.2d 818 (1984). If the adoption of dif fering worker safety standards in each of the fifty states would prove' inconsistent with this goal, the presence of differing standards in each of the nation's thousands of municipalities would prove a far greater obstacle to achieving uniformity. The Court thus concludes that 0SHA may preempt laws passed by municipal and local government, and turns to the question of whether OSHA preempts the certifica tion program challenged in the instant 2. Preemptive Effect of OSHA. Federal statutes or regulations may bar state and local legislation either through explicit preemption or implicit pre emption. Silkwood v. Kerr-MeGee Carp., 464 U.S. 238, 248, 104 S.Ct 615, 621, 78 L.Ed.2d 443 (1984); Fidelity Federal Sav ings A Loan Association v. De La Cuesta, 458 U.S. 141, 153, 102 S.Ct 3014, 3022, 73 L.Ed.2d 664 (1982). Plaintiffs argue that the OSHA statute and regulations both ex plicitly and implicitly preempt the certifica City of New York, 677 F.2d 270, 274-75 (2d Cir.1982). Plaintiffs' claim of explicit pre emption thus rests on the argument that the OSHA statute and accompanying regu lations explicitly proscribe all state and lo cal legislation providing for employee edu cation on asbestos hazards. Unlike the OSHA standard, the City's certification program, while addressing em ployee health and safety concerns, goes considerably further; It focuses on public health protection that is largely absent from the OSHA standard. Specific re quirements mandated in the City certifica Section 18 of OSHA generally discusses tion program that receive no mention in the the extent to which the Act preempts state OSHA standard include; 1. Proper methods law; for preparing work areas to minimize the (a) Nothing in this chapter shall pre amount of asbestos dust that remains after vent any State agency or court from asbestos removal is completed (Asbestos asserting jurisdiction under State law Regulations { 8111(10)), 2. Proper methods over any occupational safety or health for collecting asbestos in "bulk samples," issue with respect to which no standard to reduce the contamination that occurs is in effect___ when asbestos duBt is released into the (b) Any State which, at any time, de sires to assume responsibility for devel opment and enforcement therein of occu pational safety and health standards re lating to any occupational safety or health issue with respect to which a Fed eral standard has been promulgated ... shall submit a State plan for develop ment of such standards and their en forcement. 29 U.S.C. $ 667. Since the City has not submitted the certification program for OSHA approval, the relevant inquiry in this atmosphere (id. at $ 8111(12)), 3. Proper methods for decontaminating buildings af ter the completion of asbestos work (id. at 8111(13)), 4. Proper methods for ensuring that untrained individuals do not inadvert ently spread asbestos from a work area (id at | 8111(14)), and 5. Proper methods for containing any asbestos contamination that would accompany a fire, explosion, or other accident (id at f 8111(15)).' In short, it is clear that the thrust of the City's certifica tion program goes well beyond that of the OSHA Revised Construction Standard. tion program. The Court finds neither ex case is whether the certification program Plaintiffs recognize these dissimilar plicit preemption or implicit preemption ar relates "to any occupational safety or ities between the federal and municipal as gument persuasive, and accordingly de health issue with respect to which a Feder bestos regulations, but nonetheless argue clines plaintiffs' invitation to invalidate the al standard has been promulgated." If that the OSHA Revised Construction Stan certification program on preemption ~OSHA has promulgated a standard thaL dard must be read to explicitly preempt grounds. covers the same subject, matter as the certi- ^ regulations such as the City's certification a. Explicit Preemption. Explicit preemption occurs when the express language of a federal statute or regulation conflicts with a program or policy promulgated by a state or local government. Pacific Gas A Electric Co. v. State Energy Resources Conservation and Development Commission, 461 U.S. 190, 203, 103 S.Ct. 1713, 1721-22, 75 L.Ed.2d 752 (1983); Fidelity Federal Saw js A Loan Association -v. De La Cuesta, i U.S. 141, 152, 154-55, 102 S.Ct 3014, >2-24, 73 LEd.2d 664 (1983) (Federal me Loan Bank Board regulations empt California state case law limiting ler's rights against property owners), h a conflict may occur either because local law directly contradicts the lange of the federal statute, or because fication program.. the OSHA regulations would preempt the certification program under Section 667(b). However, if the agency has not promulgated such a stan dard, Section 667(a) would govern, and the certification program would remain viable. See New Jersey Chamber of Commerce v. Hughey, 774 F.2d 587, 593 (3d Cir.1985) ("state laws are expressly preempted only to the extent that a federal standard regu lating the same issue is already in ef fect....''). Plaintiffs contend that an OSHA "Revised Construction Standard," 29 C.F.R. 1926.58, preempts the City's certi fication program. This standard provides various regulations applicable to employees who handle asbestos and was clearly de signed to benefit asbestos workers. The program, on the ground that OSHA con sidered but rejected requiring a training course very similar to that embodied in the City's certification program. 51 Fed.Reg. 22,725. The claim that the failure to adopt a certain program as part of a federal regulatory scheme amounts to a disapprov al of the omitted program runs contrary to settled principles of interpreting congres sional and agency intent It is well settled that a mere refusal by Congress or an agency to enact a specific provision pro vides no evidence that the government body disapproved of the rejected provision. See, e.g,, De Canos v. Biea, 424 U.S. 351, 360 n. 9, 96 S.Ct 933, 939, 47 LEd.2d 43 (1976); Boudreaux v. American Workover, Inc., 680 F.2d 1034, 1053 (5th Cir. 1982), cert denied 459 U.S. 1170,103 S.Ct federal statute includes a provision mpting all state legislation in a certain . Silkwood v. Kerr-McGee, 464 U.S. topics covered in the OSHA Revised Con struction Standard include maximum asbes tos exposure levels (id at ( 1926.58(c)), 5. The mining provision of the OSHA Revised Construction Standard mentions, without elabo ration. that employee training may include, 'as 248, 104 S.Ct 615, 621, 78 LEd-2d 443 l); Jones v. Rath Packing Co,, 430 519, 525, 97 S.Ct 1305, 1309-10, 51 2d 604 (1977). respirator use by employees working with asbestos (id at { 1926.58(h)), and preven tive health care (& at $ 1926.58(m)). The standard also requires that employers pro- applicable,' instruction relating to *work prac tices', 'housekeeping practices', "hygiene facili ties*. 'decontamination procedures', and 'emer gency procedures". 29 C.FJL f 1926.SifkXJXD). prS K eged and 'JFIDENTIAL MATE JECT TO PROTEC ORDER" UCC 079534 1-88 LITIGATION 18 ELR 20069 815, 74 LEd.2d 1014 (1983); Sean, Roebuck & Co, v. Brown, 641 F.Supp. 878, 892 n. 22 (D.Conn.1985). affd, 806 F.2d 399 (2d Or. 1986). The omission from the Con struction Standard of an asbestos certifica tion program provides as much support for the argument that OSHA intended to leave such programs to the discretion of local government, as for plaintiffs contrary con tention that OSHA intended to preclude local governments from adopting such edu cational programs. This omission, in and of itself, simply does not indicate that OSHA's adoption of the Revised Construc tion Standard was intended to preempt reg ulations such as the City's certification pro gram. Accordingly, the Court rejects plaintiffs argument that OSHA explicitly preempts the City's certification program. b. Implicit Preemption. Plaintiffs also argue that the OSHA reg ulatory scheme implicitly preempts the City's certification program. In the ab sence of explicit language, a court may find implicit preemption if "the scheme of feder al regulation ... [is] so pervasive as to make reasonable the inference that Con gress left no room for the States to supple ment it" or because "the Act of Congress ... touch[s] a field in which the federal interest is so dominant that the federal system will be assumed to preclude en forcement of state laws on the same sub ject___ " Fidelity Federal Savingt & Loan Association v. de La Cuesta, 458 U.S. 141,153,102 S.CL 3014, 3022. 73 L.Ed. 664 (1982); Rice v. Santa Fe Elevator Corp.. 331 U.S. 218, 230, 67 S.CL 1146, 1152. 91 L.Ed. 1447 (1947) (United States Warehouse Act, 7 U.S.C. 5 241, et seg. preempts Illinois state warehouse regula tions). The appropriateness of reading a federal statute as implicitly preempting re lated state or local programs thus will vary in differing fields. Courts may invalidate state or local programs as implicitly preempted where such programs touch on areas traditionally regulated by the federal government,*- such- as foreign affairs67 8or labor relations.* Conversely, where a state or local government seeks to implement 6. Set tenerally Merseburg v. Balyon, 621 F.2d 972. 976-77 (9th Cir.). cert, denied. 49 VS. 983. 101 S.Cl. 399. 66 LEd.2d 24S (1980): Pierce. Regulation. Deregulation, Federalism, and Admimstrative taw: Agency Power to Preempt State Regulation, 46 U.Pitt.LRev, 607 (198S). 7. See Hints v. Davidowitz 312 l)S. 52. 62-68, 61 S-Ct. 399, 401-05, 85 LEd. 581 (1941). 8. See Alessi v. Raybtstos Manhattan, Inc., 451 US. 504, 521-26. 101 S.Ct. 1895. 1905-08. 68 L_Ed.2d 402 (1981): San Diego Building Trades Council v. Garmon, 359 US. 230. 79 S.Ct. 773. 3 LEidJd 775 (1959). health and aafety regulations, such as the certification program challenged in the in stant case, courts should hesitate to invali date such an exercise of traditional state police powers. Florida Lime Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.CL 1210,10 L.Ed.2d 248 (1963) (California statute providing quality standards for avo cados not preempted by federal regula tions); Rice v. Santa Fe Elevator Corp,, 331 U.S. 218, 230, 67 S.Ct 1146, 1152, 91 L.Ed. 1447 (1947).* For example, in Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 105 S.CL 2371, 85 LEd.2d 714 (1985) the Supreme Court held that federal Food and Drug Administration regulations designed to pro tect the quality of blood donations did not preempt more stringent local regulations. In assessing plaintiffs' argument that OSHA implicitly preempts the City's certification program, this Court starts from the settled proposition that OSHA regulations do not preempt state laws ad dressing subjects other than worker safety. See, e.g., Manufacturers Association of Tri-County v. Knepper, 801 F.2d 130, 142 (3d Cir.1986); New Jersey Chamber of Commerce v. Hughey, 774 F.2d 587, 593 (3d Cir. 1985) ("Because OSHA standards by definition govern occupational safety and health issues, they do not preempt state laws that regulate other concerna."); Township of Greenwich v. Mobil Oil Corp., 504 F.Supp. 1275, 1279 (D.NJ.1981). Given this principle, defendants argue that the certification program is designed to protect the general public, rather than em ployees, and that OSHA cannot preempt this program. As evidence that the certifi cation program was adopted to protect the public health, rather than the health and safety of asbestos workers, the City points to mandatory training course instruction on methods to prevent asbestos contamination of public places in both ordinary and ex traordinary circumstances. See, e.g., As bestos Regulations, 8111(15), 8111(16). Defendants also describe the certification program as part of a broader city policy to reduce public exposure to asbestos, citing 9. See also Chevron L'.SA., Inc. v. Hammond, 726 F.2d 483, 488 & n. 6 (9th Cir.1984), cert, denied. 471 U.S. 1140, 105 S.Cl. 2686. 66 L.EdJd 703 (1985); Chrysler Corporation v. To/any. 419 F.2d 499. 511 (2d Cir. 1969) (federal safety standard on motor vehicle lighting does not preempt state regulation of auxiliary headlamps on motor ve hicles); Fierce, Regulation, Dregulation, Federal ism, and Administrative Law: Agency Power to Preempt State Regulation, 46 U.Pitt.L.Rev. 607, 626 (1985) ('The few environmental cases decid ed so far indicate that the courts will give at least as much deference to state legislative or administrative efforts to balance state environ mental interests against national economic in terests as they do when the balance is between state health and safety interests and national economic interests."). earlier enactments, such as the 1983 pro gram for locating asbeitos-contaminated buildings, as evidence of such a policy. However, defendants' argument ignores the fact that some aspects of the certifica tion program are designed primarily to pro tect workers, rather than the general pub lic. For example, t substantial amount of course time is devoted to the proper use of respirators by asbestos workers. Asbestos Regulations, } 8111(6). The certification course also instructs workers on protective clothing {id. at $ 8111(7)) and personal hy giene techniques {id at 8111(16)) de signed to reduce their exposure to asbes tos. In short, the Court cannot accept defend ants' characterization of the certification training program as designed solely to pro mote the public health, or plaintiffs' charac terization of the program as relating solely to worker safety issues. Instead, the Court finds that the adoption of the certifi cation program was motivated by both pur poses: 1. Protection of the public health, and 2. Protection of employee health and safety. Given the presence of these dual purposes, the Court concludes that OSHA does not implicitly preempt the DEP regu lations." The law is well settled that OSHA doea not bar all state programs that, tike the certification program, address the public health threat posed by asbestos. See, e.g.. New Jersey Chamber of Commerce v. Hu ghey, 774 F.2d 587, 593 (3d Cir.1985) (de scribing argument that OSHA preempts "all the environmental protection provisiona" of state law as "unpersuaaive"); United Steelworkers of America v. Auchtsr, 763 F.2d 728, 735 (3d Cir.1985); Note, The Preemptive Effect of OSHA's Haiard Communication Standard Out side the Manufacturing Sector, 1985 B.Y. U.L.Rev. 815. 826. See also west Virginia Manufacturers Association v. West Virgi nia, 714 F.2d 308, 314 (4th Cir.1983). Such state public health programs would prove virtually impossible to implement unless states could ensure that those working di rectly with asbestos did not inadvertently spread this toxic substance. The New York City program designed to abate the toxic effects of asbestos on the public by locating structures that contain unusually high asbestos concentrations would prove of little value, unless the City could insure that workers did not disperse large quanti- 10. One other federal court decision considering this issue has held that OSHA preempts a state program having the "dual purposes' of protect ing both worker health and public health. New Jersey Chamber of Commerce v. Hew Jersey, 653 F-Supp. 1453, 1465-66 (D.NJ.1987). For the reasons set forth in the text of this opinion, the Court declines to follow this reasoning of the New Jersey Chamber of Commerce decision. UCC 079535 18 ELR 20070 ENVIRONMENTAL LAW REPORTER 1-88 *ie* of asbestos dust when removing this cation to stay informed about currant as OSHA. There is suthority to the effect msterisl. Worker eduemtion on ufe meth bestos inspection and response action tech that where a state regulatory program ods for handling asbestos is logically an nology." 15 U.S.C. f 2646(b)(1)(B)." seeks to reduce the hazards associated with essential part of any public health program addressing the dangers raised by asbes tos." This Court s refusal to read'.the implicit preemptive effect of OSHA more broadly is supported by the statutory language of the OSHA statute. As discussed above, Sec tion 18 of the Act, 29 U.S.C. j 667, de scribes an ongoing state role in promoting employee health and safety. Where Con gress has intended to preempt all state Although AHERA requires such training only for individuals working with asbestos in primary and secondary schools, lan guage in fite statute invites states to adopt more comprehensive public health regula tions. The first section of AHERA warns that "(bjecause there are no Federal stan dards whatsoever regulating the exposure to asbestos in other public commercial buildings, persons in addition to those com prising the Nation's school population may toxic materials through a number of differ ent mechanisms--such as surveys, wsming signs, labeling requirements, and edu cational courses--courts will consider whether federal law preempts each distinct program. See Manufacturers Association of Tri-County v. Knepper, 801 F.2d 130 (3d Cir.1986). See also New Jersey Cham ber of Commerce v. Hughey, 774 F.2d 587 (3d Cir.1985). This Court declines plaintiffs' invitation regulation in a particular field, statutes be exposed daily to asbestos." Id. at to dictate the precise topics that the City's have used quite different language. For $ 2641(aX4). Accordingly, the Act requires certification courses must teach. This example, the Employee Income Retirement the EPA "to conduct a study to find out Court lacks both the expertise and the re Security Act of 1974 (ERISA), 29 U.S.C. the extent of the danger to human health sources to undertake such a responsibility. } 1001, et teg., states that its provisions posed by asbestos in public and commercial As the Supreme Court has written in other "shall supersede any and all State laws buildings and the means to respond to any contexts, such s lack of deference to the insofar as they may now or hereafter re such danger." Id. at $ 2641(bX2). In light judgment of state officials would "subject late to any employer benefit plan.... " Id. at} 1144.11 Not only does OSHA omit any statement of an intent to "supersede any and all State laws" related to worker safe ty, but instead this statute expressly en courages "the States to assume the fullest responsibility for the administration and enforcement of their occupational safety and health laws...." 29 U.S.C. { 651(bXll). The Court also notes that Congress actu ally has encouraged asbestos regulations similar to the City's certification program, which plaintiffs nonetheless describe as contravening federal law. The Asbestos Hazard Emergency Response Act ("AHERA"), 15 U.S.C.A. S 2641, et teq. (West Supp.1987), enacted in 1986, requires state governments to implement accreditation programs for asbestos contractors and their employees working in public schools, in conjunction with the Environmental Pro tection Agency ("EPA"). Id. at $ 2646(b). Like the certification pro*ri~, .MIEILV mandates that asbestos contractors and workers enroll in a training course, of these AHERA provisions, plaintiffs' ar gument that the City's certification pro gram conflicts with federal legislation or policy loses all force. See alto Ohio Man ufacturers Association v. City of Akron, 801 F.2d 824, 831 (6th Cir.1986) (primary purpose of OSHA "was to assure that the states would at least meet the minimum requirements of federal standards, tnd not attempt to undercut each other"). Plaintiffs argue that a federal district court decision invalidating a state asbestos training program, Ntw Jersey Chamber of Commerce v. New Jersey, 653 F.Supp. 1453 (D.NJ.1987) requires this Court to invali date the City's certification program. New Jersey Chamber of Commerce has little applicability to the instant case, since the New Jersey regulations successfully chal lenged applied only to "employers using their own employees to perform asbestos work in their own facilities___ " Id. at 1455. Accordingly, the regulations invali dated in New Jersey Chamber of Com merce did not address public health con cerns, falling outside the province of OSHA, to the same extent as the training the State to an intolerable supervision hos tile to the basic principles of our Govern ment___" Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S.Ct 1028,1031,10 L.Ed.2d 93 (1963); Sproles v. Binford, 286 U.S. 374, 388, 52 S.Ct 581, 585, 76 L.Ed. 1167 (1932). To require that the City delete any mention of the potential hazard faced by individuals working with asbestos from the certifica tion courses, as plaintiffs urge, would ren der the courses at best incomplete, at wont seriously misleading. To summarize, the Court does not find the City's certification program to be in conflict with the express language or im plicit purposes of federal law. "The sub jects of modern social and regulatory legis lation often by their very nature require intricate and complex responses from the Congress, but without Congress necessar ily intending its enactment as the exclusive' means of meeting the problem--" New York State Department ofSocial Services v. Dublino. 413 U.S. 405, 415, 93 S.Ct. 2507, 2513-14, 37 LEd.2d 688 (1973); ac cord Hilleborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, "achieve a passing grade on an examina program challenged in the instant case, 715-17, 105 S.Ct 2371, 2376-2377, 85 tion!,] and participate in continuing edu- which regulates contractors frequently LEd.2d 714 (1985). The Court thus holds II. The Third Circuit Court of Appeals adopted similar reasoning in Manufacturers Association of Tri-Caurtly v. Kntpptr, 801 FJd 130 (3d Cir. I9M). The Kntpptr Court considered a Penn* sylvanu 'Right to Know* statute, and held that this statute would be preempted if it were read to mandate 'educational programs with respect to workplace hazards." However, the Court continued: TI]f the Pennsylvanis authorities so construe the Act, the provision that employees be educated as to environmental hazards wotild not b* pnampttd." Id. at 142 (emphasis added). working in or near public places. In any event, to the extent that the analysis found in the New Jersey district court decision differs from the approach employed in the instant esse, this Court declines to follow New Jersey Chamber of Commerce.1* Plaintiffs also argue that if this Court does not invalidate the City's entire certification program, it should invalidate at least that portion of the course relating that OSHA does not preempt the City's certification program. B. DUE PROCESS. Plaintiffs also allege that the certifica tion program constitute* a taking of prop erty without due process of law, in viola tion of the fourteenth amendment Thii argument borders on the frivolous. State and local governments unquestion Sat tlso New Jersey Chambtr of Comment v. to worker safety as implicitly preempted by* IXably possess brood discretion in the formu Hughey, 774 M 587, 393 (3d Cir.1983). lotion and implementation of measures de IX The Third Circuit Court of Appeals has noted that OSHA does not include the broad preemplive language used in ERISA. Stt New Jersey Chambtr of Commerce v. Hughey, 77* FJd 3*7, 393 (3d Clr.1983). IX As of March 1. 1987, rifhteeo states, iaduding New York, had developed certification protrams for school employees pursuant to the act IX See supra note /10/. signed to protect public health and safety See, eg., Railway Express Agency, Inc. v. New York, 386 U.S. 106, 108-09, 69 S.Ct 463, 464-65, 96 LEd. 533 (1949); New Jer- PRIVILEGED AND " CONFIDENTIAL MATERIAL SUBJECT TO PRO TFrTiwc UCC 079536 1-88 LITIGATION 18 ELR 20071 fey Chamber of Commerce v. Hughey, Tit Although plaintiff relies heavily on Hous- S.Cl 1028,1031,10 L.Ed.2d 93 (1963) (quot FM 587, 598 (3d Cir.1985). It it tlto et- worth v. Glitson, 486 F.Supp. 29, 38 (N.D. ing in part Lincoln Federal Labor Union ublished thtt states roty require training Ga.1978), the ordinance invalidated in that v. Northwestern Iron & Metal Co., 335 and ficenting of eimiloy*** or companies case, which was "clearly subject to arbi US. 525, 536, 69 S.CL 251, 257, 93 L.Ed. engaged in potentially hazardous work, and trary and discriminatory enforcement and 212 (1949)).'* may impoie fine* or other puniahment against those who fail to obtain the requi site training. See, e.g.. Manufacturera As sociation of Tri-County v. Knepper, 801 F.2d 130,142 (3d Cir.1986); Suetsion Suaret V. Gtlabert, 701 F.2d 231 (1st Cir.1983); Nofslco Realty Corp. v. United State*, 521 F.Supp. 458, 461-62 (S.D.N.Y.1981). Plaintiffs first contend that the City violated the due process clause by failing to provide adequate notice on the date when the City would require workers provided] no guidelines," bean little sim ilarity to the regulations challenged in the instant case. "If anything, these stan dards are more specific than the criteria in other statutes authorizing summary admin istrative action that have been upheld against due process challenges," Hodel v. Virginia Surface Mining A Reclamation Association, 452 U.S. 264, 302, 101 S.CL 2352, 2378, 69 L.Ed.2d 1 (1981). See also PBR, Inc. v. Secretary of Labor, 643 F.2d 890, 897 (1st Cir.1981). Plaintiffs have argued vehemently that requiring employers to pay the cost of the certification program, estimated at about (600/worker, will impose an unreasonable financial burden on construction compa nies, effectively putting their owners out of business. This Court is not the proper body to assess the validity of these conten tions. Plaintiffs may urge the New York City Council to repeal or modify the certifi cation program, and may ask Congress to adopt a statutory amendment explicitly to possess an asbestos certificate. How To summarize, the Court holds that nei prohibiting such local regulation. But ever, this contention receives no support ther the content nor the implementation of since the City's certification program does from the factual record. The City gave the City's asbestos certification program not run afoul of any existing constitutional notice of the certification course require violated plaintiffs' due process rights. Any provision, federal statute, or agency regu ment as early as November 19,1986, when failure of employees to complete the certifi lation, this Court does not hestitate to up defendants first published the DEP regula cation course follows from their employers' hold the regulations as valid.1* tions in the City Record. On December 16, 1986, the City mailed notices informing about 1,200 contractors and builders, in cluding plaintiffs, of the April 1,1987 dead line for compliance with the DEP regula decision to challenge the DEP regulations, rather than to comply with the training mandated by those regulations. See Unit ed States v. National Steel Corp., 767 F.2d 1176, 1181 (6th Cir.1985); United States Plaintiffs' motion for a preliminary in junction is denied. Defendants' cross-mo tion for summary judgment is granted. SO ORDERED. tions. Given this mailing, the Court cannot find that the notice provided by defendants was inadequate. "The Fourteenth Amend ment does not impose upon states and lo calities ... an Administrative Procedure Act to regulate every governmental ac tion ___ " BAM Historic District Associa tion v. Koch, 723 F.2d 233, 237 (2d Cir. 1983). See also City ofLas Vegas v. Clark County, 755 F.2d 697, 704 (9th Cir.1984). Plaintiffs also assert that defend ants have failed to establish a sufficient number of courses to train New York's asbestos workforce. However, as of May 11, 1987, when this Court heard oral argu ment on these motions, defendants' attor Steel Corp. v, Federal Power Commis sion, 533 F.2d 1217, 1224 (D.C.Cir.1976). CONCLUSION This Court has approached the regula tions challenged in the instant case with a recognition that courts should show sub stantial deference to the policy judgments of elected officials. "It is now settled that States 'have power to legislate against what are found to be injurious practices in their internal commercial and business af fairs, so long as their laws do not run afoul of some specific federal constitutional pro hibition, or some valid federal law.' " Fer guson v. Skrupa, 372 U.S. 726, 730, 83 15. Set generally Pierce, Regulation, Deregula tion. Federalism and Administrative low; Agen cy Power to Preempt State Regulation. 46 U.PitL L.Rev. 607.661-62 (1985); Cray, Regulation and Federalism, 1 Yale J. on Reg. 93 (1983). 16. Id passing the Court notes that managing the large number of luits brought by victims of aibettoa-related disease has posed a serious problem for the nation's courts. See generally Comment, Coping With the Particularized Prob lems of Toxic Tort Litigation. 28 Vill.LRev. 1298 (1983); Comment, Asbestos Litigation: The Dust Has Yet to Settle, 7 Fordhim Orb.LJ. 55 (1978). To the extent that the future prevention of as bestos-induced diseases represents the optimal solution to the difficult legal and policy issues raised in these suits, the goals of programs such as the New York City asbestos regulations ap pear particularly laudable. neys represented that some 1,200 workers had completed the certification course, taught in several languages, and that de Eddleman v. Nuclear Regulatory Commission No. 87-1018 (825 F.2d 46) (4th Cir. Aug. 10,1987) UCC 079537 fendants were certifying an additional 200 The court holds that petitioner citizen groups' procedural rights were not violated to 250 workers each week. Defendants when the Nuclear Regulatory Commission (NRC) permitted the Shearon Harris Nuclear further representedr and plaintiffs did not Power Plant in North Carolina to begin full operations. The court first holds that peti dispute, that a speedier schedule for certi tioners had no right 10 notice and ah opportunity to present arguments when the NRC o0 LU fying workers was planned, but that the conducted its informal "immediate effectiveness review," allowing the plant to begin failure of plaintiffs and other contractors operations while the Commission's review of the licensing board's grant of an operating oc to enroll their employees in available license was still pending. The court next holds that petitioners had no right to a hearing O classes resulted in either their cancellation, on their petition, filed pursuant to the NRC's regulation at 10 C.F.R. $2,206, asserting or the holding of classes with less than the various safety concerns respecting the power plant. Because the disposition of such a petition is not a "proceeding" within the meaning of $!89(a) of the Atomic Energy maximum' enrollment Act (AEA), petitioners have no basis for demanding a hearing. The court holds that As a final due process contention, plaintiffs argue that the challenged regula tions are unconstitutionally vague. The ba sis for this argument remains a mystery to the Court The (Sty's program not only specifies those organizations authorized to the NRC did not err, when deciding petitioners' $2,206 petition, by considering facts not part of the adjudicatory record arising from the licensing proceedings. Such peti tions can involve matters that are unrelated to the issues that were before the licensing board. Finally, the court holds that the NRC committed neither procedural nor substan tive error when it granted defendant power plant an exemption from the NRC regula tions' emergency response plan requirement. The court holds that NRC did not use the wrong procedural mechanism to resolve the exemption issue; the two available procedures teach the certification course, but also man in the regulations are closely related, and agencies are afforded discretion in construing dates the precise content of this course. their own enabling statutes. The court finds no basis in the record to dispute the NRC's PRIVILEGED AND " CONFIDENTIAL MATERIAL SUBJECT TO PROTECTIVE