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Ohio Mfrs.' Ass'n v. Akron, City of

ELR Citation: 16 ELR 20942
Nos. No. 86-3191, 801 F.2d 824/(6th Cir., 09/17/1986) Rev'd

The court holds that the Akron "Right-to-Know" Ordinance, regulating hazardous and toxic substances in the workplace, is preempted by federal regulations issued by the Occupational Safety and Health Agency (OSHA), establishing the Hazard Communication Standard Program. The court first holds that the ordinance is not expressly preempted by the Occupational Health and Safety Act (OSH Act), since the OSH Act expressly preempts only regulations by states, and not both states and their political subdivisions. The court also holds that regulation by states or their political subdivisions is not impliedly preempted by the OSH Act's establishment of uniform national workplace safety standards, since states are permitted to assume responsibility for developing and enforcing standards under the Act, with OSHA's approval.

The court next holds that OSHA preempted the ordinance when it issued the Hazard Communication Standard since the hazardous substance identification program was designed to be comprehensive and because of express preemption language in the preamble to the regulations. An express preemption outside the text of regulations is nonetheless effective. The court also reverses the district court's holding that OSHA's attempt to preempt state and local regulations by its own regulations is not within OSHA's authority, since, in the absence of clear congressional intent to the contrary, OSHA may formulate policy and make rules to administer a statute for which it has responsibility. The court remands the case to the district court to determine whether the ordinance's provisions respecting the protection of the public at large can be severed from the preempted portions.

[The lower court opinion appears at 16 ELR 20583.]

Counsel are listed at 16 ELR 20583.

Before: MARTIN and GUY, Circuit Judges; and BROWN, Senior Circuit Judge.