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Manufacturers Ass'n of Tri-County v. Knepper

ELR Citation: 16 ELR 20383
Nos. No. 85-1027, 623 F. Supp. 1066/(M.D. Pa., 12/12/1985)

The court rules that the Pennsylvania Worker and Community Right-to-Know Act is preempted by the Occupational Safety and Health Agency's (OSHA's) hazard communication standard as to workplace hazard and labelling requirements for the manufacturing sector, but not as to environmental hazard requirements for the manufacturing sector or environmental and workplace requirements for the nonmanufacturing sector. Initially, the court rules that the Third Circuit's decision in New Jersey State Chamber of Commerce v. Hughey, 15 ELR 21030, is controlling and that the hazard communication standard promulgated under the Occupational Safety and Health Act preempts matters of evaluating and communicating chemical hazards to employees in the manufacturing sector. Applying this standard to the Pennsylvania Act, the court holds that all sections dealing with the Hazardous Substance Survey Form are preempted in the manufacturing sector, even though the intent was to protect both the employee and the public. However, the court holds that the Environmental Hazard Survey is not preempted because its purpose is to protect the public. The court rejects plaintiff's argument that since the state labor agency, not the state environmental agency, oversees this survey, it is not primarily for the protection of the public. Regarding labelling requirements, the court holds that labelling of workplace hazards in the manufacturing sector is preempted, except where an employer sells to a nonmanufacturer. After analyzing statutory language, the court rules that labelling environmental hazards is primarily for employee protection and therefore preempted in the manufacturing section and in the nonmanufacturing sector, to the extent that the Act requires labelling shipments to the manufacturing sector. The court also holds that Material Safety Data Sheet requirements are preempted for containers carrying a workplace hazard from manufacturers, importers, or suppliers who deliver to manufacturers. However, these data sheets must accompany any shipments containing environmental hazards regardless of the identity of the customer.

The court holds that the state requirement for employer education programs is preempted by a parallel OSHA requirement and the program for informing employees and the public of their rights under the Act and about hazardous substances is preempted as applied to employers in the manufacturing sector. The court rules that preemption as to employers in the manufacturing sector does not void the entire Act since the Act is presumed to be severable and since the intent of the state legislature is not to abandon the Act but only to reexamine the Act if federal preemption is found. Finally, the court holds that provisions protecting trade secrets preclude a taking, and that the Act is not an undue burden on interstate commerce.

Counsel for Plaintiffs
Robert W. Thomson, Debra M. Coulson
Reed, Smith, Shaw & McClay
James H. Reed Bldg., Mellow Square, Sixth Ave. and William Penn Way, Pittsburgh PA 15219-1886
(412) 288-3131

Donald A. Tortorice, Arthur K. Hoffman
Duane, Morris & Heckscher
203 Pine St., Harrisburg PA 17101
(717) 238-8161

Counsel for Defendants
Delancey W. Davis, Deputy Attorney General
Strawberry Sq., 16th Fl., Harrisburg PA 17120
(717) 787-3391

Counsel for Intervenors
Theodore M. Lieverman
4th Fl., 1200 Walnut St., Philadelphia PA 19107
(215) 985-4448