The opinion of the court was delivered by: DEBEVOISE
DEBEVOISE, District Judge.
These two consolidated actions challenge the New Jersey Worker and Community Right to Know Act (the "Right to Know Act"), N.J.S.A. 34:5A-1, et seq., primarily on the ground that the Act is preempted by regulations or standards promulgated under the federal Occupational Safety and Health Act of 1970 (the "OSH Act"),
29 U.S.C. §§ 651, et seq. Plaintiffs further contend that certain of the Right to Know Act's disclosure requirements constitute an unreasonable exercise of the State's police power and will result in a taking of trade secrets without due process of law.
The plaintiffs in Civil Action No. 84-3255 (the "Chamber of Commerce Action") are the New Jersey State Chamber of Commerce, three chemical and business associations, and eight pharmaceutical and chemical companies. Defendants in that action are New Jersey's Commissioner of Environmental Protection, Commissioner of Health, Acting Commissioner of Labor, and the State of New Jersey. Plaintiffs ask for injunctive and declaratory relief. They seek an order directing the defendant Commissioners to comply with the provisions of § 18 of the OSH Act (defining federal preemption), 29 U.S.C. § 667, and enjoining the State of New Jersey from enforcing the obligations of the Right to Know Act. Plaintiffs seek a declaratory judgment that § 18 of the OSH Act precludes the New Jersey Commissioners from enforcing the obligations of the Right to Know Act in light of OSHA's Hazard Communication Standard, 29 C.F.R. § 1910.1200, and that the Right to Know Act is, on its face, unconstitutional and preempted by § 18 of the OSH Act and the Hazard Communication Standard.
After defendants in the Chamber of Commerce Action answered, plaintiffs moved for a preliminary injunction against enforcement of the Right to Know Act. A hearing was held on November 15, 1984.
The plaintiffs in Civil Action No. 84-3892 (the "Fragrance Materials Association Action") are two associations, the members of which are engaged in the manufacture and sale of fragrances and fragrance materials, and thirteen corporations which compound, mix, blend and/or manufacture fragrances or their ingredients. The defendants are the three New Jersey Commissioners who are the defendants in the Chamber of Commerce Action.
Plaintiffs in the Fragrance Materials Association Action seek to enjoin enforcement of the Right to Know Act. After defendants answered plaintiffs moved for summary judgment on Count I (alleging preemption) and on Count II (alleging deprivation of trade secrets without just compensation) or, in the alternative, for a preliminary injunction against enforcement of the Right to Know Act. Plaintiffs' motion was heard on December 10, 1984.
The two cases were consolidated prior to the November 15 and December 10 hearings. The Public Advocate of the State of New Jersey and twenty-nine unions, environmental organizations and other interested groups had moved to intervene. I granted the motion. The intervenors cross-moved for a partial summary judgment in their favor dismissing Counts I and II of the complaint in the Fragrance Materials Association Action. The intervenors as well as the original parties participated in the two hearings.
This opinion addresses all of the pending motions.
A. The Right to Know Act : On August 29, 1983 New Jersey's Governor signed the Worker and Community Right to Know Act, N.J.S.A. 34:5A-1, et seq., which became effective August 29, 1984.
Defendants submitted affidavits of numerous persons having experience and expertise in the fields of chemical substances and occupational and community hazards resulting from such substances. Included among the affidavits were governmental officials having responsibilities for workplace or community protection from chemical hazards, physicians and scientists whose careers have been devoted to treating or preventing illnesses caused by dangerous substances and persons familiar with the problems of fire fighting at industrial sites.
Workers in a plant are often unaware of the dangerous substances with which they deal, or, if they are aware, they may not be advised of the precautions they should take. Often employers are unaware of the dangerous nature of the materials in their plants. The affidavits recite instances in which doctors seeking to treat an employee after exposure to a chemical substance have been unable to do so because the employer is either unable or unwilling to identify the substance.
Further, inhabitants of communities surrounding industrial complexes do not know the nature of chemical vapor to which they are exposed nor do they know the possible hazards which exposure entails. Public health officials cannot advise them because they, too, quite often do not have the necessary information. While some industrial concerns go to great pains to educate and inform both their employees and public officials of the chemical substances in their plants, others do not. Lacking such cooperation there was little that public officials could do to protect citizens from the existence of harmful substances.
In particular fire fighting organizations were often unable to obtain precise information concerning the substances with which they might have to deal in the event of a plant fire. Further, when fires occurred, there was often no way in which firemen could tell quickly what substances were burning in the plants. This information might be vital both to know how to deal with the fire itself and to safeguard firemen and other persons in the area.
New Jersey enacted the Right to Know Act to meet this congeries of problems arising in the workplace and extending into the community at large. The purpose is reflected in the Act's legislative findings and declarations, N.J.S.A. 34:5A-2, and in the statement of purpose contained in the regulations implementing the Act. N.J.A.C. 8:59-1.2.
The Right to Know Act requires that the New Jersey Department of Environmental Protection (the "DEP") develop both an environmental hazardous substance list and an environmental survey designed to enable employers to report information about environmental hazardous substances at their facilities. N.J.S.A. 34:5A-4.
The Department of Health is required to develop four things: (1) a workplace hazardous substance list which must include (a) any substance regulated by the federal Occupational Safety and Health Administration ("OSHA") under 29 C.F.R., Part 1910, subpart z, (b) any environmental hazardous substance and (c) any other substance which the Department determines poses a threat to the health or safety of an employee; (2) "a special health hazard substance list comprising hazardous substances which, because of their known carcinogenicity, mutagenicity, teratogenicity, flammability, explosiveness, corrosivity, or reactivity pose a special hazard to health and safety, and for which an employer shall not be permitted to make a trade secret claim;" (3) a workplace survey designed to facilitate the reporting by employers of hazardous substances at their facilities; and (4) a hazardous substance fact sheet for each hazardous substance on the workplace hazardous substance list. N.J.S.A. 34:5A-5.
The Act required that within 5 days of August 29, 1984 (the effective date of the Act), the environmental survey and the workplace survey be distributed to each employer subject to the Act. N.J.S.A. 34:5A-6. Within 90 days of receipt of the workplace survey the employer is required to complete it and send copies to the Department of Health, the county health department, the local fire department and the local police department. Within the same time the employer is required to complete the environmental survey and send a copy to the DEP and to the county health department and to send "pertinent sections of the survey" to the local police and fire departments. N.J.S.A. 34:5A-7.
Upon receipt of a completed workplace survey from the employer, the Department of Health must transmit to the employer a fact sheet (prepared by the Department, as noted above) for each hazardous substance reported by the employer on the workplace survey. N.J.S.A. 34:5A-8. The Department must maintain a file of completed workplace surveys, require that every employer update its survey annually and make available copies of the surveys and related hazardous substance fact sheets upon request. N.J.S.A. 34:5A-10. The DEP must maintain a file of completed environmental surveys, require that every employer update its survey each year, and make copies of the surveys available upon request. N.J.S.A. 34:5A-9.
Each employer must maintain at its facility a central file in which it shall retain the workplace survey, appropriate hazardous substance fact sheets and, if appropriate, the facility's environmental survey. Notice of availability must be posted and employee access must be provided. N.J.S.A. 34:5A-12. In addition the Right to Know Act contains detailed provisions mandating an education and training program for employees, "which shall be designed to inform employees in writing and orally of the nature of the hazardous substances to which they are exposed in the course of the employment and the potential health risks which the hazardous substances pose." The employer must also train his employees "in the proper and safe procedures for handling the hazardous substances under all circumstances." N.J.S.A. 34:5A-13.
The Act also contains detailed provisions for labeling containers containing hazardous substances and pipelines. "Within six months of the effective date of this act, every employer shall take any action necessary to assure that every container at his facility containing a hazardous substance shall bear a label indicating the chemical name and Chemical Abstracts Service number of the hazardous substance or the trade secret registry number assigned to the hazardous substance." Further, "employers shall be required to label pipelines only at the valve or valves located at the point at which a hazardous substance enters a facility's pipeline system, and at normally operated valves, outlets, vents, drains and sample connections designed to allow the release of a hazardous substance from the pipeline." N.J.S.A. 34:5A-14.
The Act goes on to provide that "within two years of the effective date of this act, every employer shall take any action necessary to assure that every container at his facility [whether or not it contains a hazardous substance] bears a label indicating the chemical name and Chemical Abstracts Service number of the substance in the container . . . or the trade secret registry number assigned to the substance." If a container contains a mixture of substances, the employer's label must similarly identify the five most predominant substances contained in the mixture. The labeling provisions effective after two years will not apply to any substance constituting less than 1% of a mixture unless the substance is present at the facility in an aggregate amount of 500 pounds or more. Provisions concerning the labeling of pipelines parallel those applying to the period beginning six months after the effective date of the Act. N.J.S.A. 34:5A-14.
The Right to Know Law deals with the problem that disclosure of chemical substances in the workplace and the labeling of containers may result in the disclosure of trade secrets of an employer. Procedures are established whereby an employer may claim that specified information disclosed in an environmental survey or in a workplace survey or through the labeling process constitutes a trade secret. If the DEP or the Department of Health disputes the trade secret claim an administrative hearing and subsequent court review are available. Until the dispute is resolved and after a trade secret claim is either accepted by the agency or favorably adjudicated, confidentiality must be preserved except that disclosure may be made to a physician when such information is needed for medical diagnosis or treatment. N.J.S.A. 34:5A-15.
Trade secret protection is not accorded, however, to substances on the special health hazard substance list, "for which an employer shall not be permitted to make a trade secret claim" N.J.S.A. 34:5A-5b. The Department of Health has prepared a workplace hazardous substance list consisting of 2051 items. Of these 835 are on the special health hazard list. Of the 835 substances 335 are carcinogens, mutagens (causing genetic mutations) and teratogens (causing birth defects) and are considered special health hazard substances in a pure form or in a mixture at a concentration of 0.1% or greater. The other 500 substances are flammable, explosive, reactive or corrosive substances and are considered special health hazard substances in a pure form or in a mixture at very high concentrations, e.g., 80%, 90%, 95%. See Rosenman Affidavit, Defendants' App. at A19.
The DEP and the Department of Health have adopted regulations implementing the Right to Know Act, N.J.A.C. 7:1G-12, et seq., N.J.A.C. 8:59-1.1, et seq. As required by the Act, environmental surveys and workplace surveys have been distributed to each employer in the State subject to the Act, including the manufacturing and processing concerns which are plaintiffs in the Chamber of Commerce and the Fragrance Materials Association cases. Unless enforcement of the Act is enjoined the employers must complete and file them as required by the Act.
B. The OSH Act : In 1970 Congress enacted the Occupational Safety and Health Act of 1970 ("OSH Act"). 29 U.S.C. §§ 651, et seq. Finding that personal injuries and illnesses arising out of work situations imposed a substantial burden on interstate commerce, Congress sought to assure working persons safe and healthful working conditions by, among other things, (i) authorizing the Secretary of Labor to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce, (ii) exploring ways to discover latent diseases, establishing causal connections between diseases and work environmental conditions and conducting research relating to health problems, (iii) providing medical criteria which will assure that no employee will suffer diminished health, functional capacity, or life expectancy as a result of his work experience, (iv) providing for the development and promulgation of occupational safety and health standards, (v) encouraging the States to assume the fullest responsibility for the administration and enforcement of their occupational safety and health laws, and (vi) providing for appropriate reporting procedures. 29 U.S.C. § 651.
The OSH Act imposes a duty on each employer to furnish his employees a place of employment free from recognized hazards and to comply with occupational safety and health standards promulgated under the Act. 29 U.S.C. § 654.
The Secretary of Labor is given the power and the duty to promulgate, modify or revoke occupational safety or health standards in order to implement the purposes of the OSH Act. 29 U.S.C. § 655. An "occupational safety and health standard" is defined as "a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment." 29 U.S.C. § 652(8).
In particular 29 U.S.C. § 655(b)(7) provides in part:
(7) Any standard promulgated under this subsection shall prescribe the use of labels or other appropriate forms of warning as are necessary to insure that employees are apprised of all hazards to which they are exposed, relevant symptoms and appropriate emergency treatment, and proper conditions and precautions of safe use or exposure. Where appropriate, such standard shall also prescribe suitable protective equipment and control or technological procedures to be used in connection with such hazards and shall provide for monitoring or measuring employee exposure at such locations and intervals, and in such manner as may be necessary for the protection of employees. . . .
In order to carry out the purposes of the Act the Secretary of Labor is authorized to enter, inspect and investigate places of employment. 29 U.S.C. § 657(a). Further, the Secretary of Labor, in cooperation with the Secretary of Health, Education and Welfare:
. . . shall issue regulations requiring employers to maintain accurate records of employee exposure to potentially toxic materials or harmful physical agents which are required to be monitored or measured under section 655 of this title. Such regulations shall provide employees or their representatives with an opportunity to observe such monitoring or measuring, and to have access to the records thereof. Such regulations shall also make appropriate provision for each employee or former employee to have access to such records as will indicate his own exposure to toxic materials or harmful physical agents. Each employer shall promptly notify any employee who has been or is being exposed to toxic materials or harmful physical agents in concentrations or at levels which exceed those prescribed by an applicable occupational safety and health standard promulgated under section 655 of this title, and shall inform any employee who is being thus exposed of the corrective action being taken.
The statute mandates that information obtained under the OSH Act "shall be obtained with a minimum burden upon employers, especially those operating small businesses. Unnecessary duplication of efforts in obtaining information shall be reduced to the maximum extent feasible." 29 U.S.C. § 657(d). The Secretary of Labor and the Secretary of Health, Education and Welfare are directed to prescribe rules and regulations which they deem necessary to carry out their responsibilities under the OSH Act. 29 U.S.C. § 657(g)(2).
C. OSHA's Hazard Communication Standard : On November 25, 1983 OSHA published its final Standard for Hazard Communication. 48 Fed. Reg. 53,340-348.
The Standard is codified at 29 C.F.R. §§ 1910.1200, et seq. Its purpose is stated to be:
. . . to ensure that the hazards of all chemicals produced or imported by chemical manufacturers or importers are evaluated, and that information concerning their hazards is transmitted to affected employers and employees within the manufacturing sector. This transmittal of information is to be accomplished by means of comprehensive hazard communication programs, which are to include container labeling and other forms of warning, material safety data sheets and employee training.
29 C.F.R. § 1910.1200(a).
The Standard is applicable to all employers in Standard Industrial Classification ("SIC") Codes 20-39, which in general terms includes manufacturing operations. The plaintiff enterprises in the consolidated cases are included in SIC Codes 20-39. 29 C.F.R. § 1910.1200(b)(1).
Chemical manufacturers and importers are required to evaluate chemicals produced in their workplaces or imported by them to determine if they are hazardous. Criteria and methods of evaluation are prescribed in the Standard. Information concerning any physical or health hazards determined to be present must be transmitted to "downstream" manufacturers by product labels on containers leaving the workplace and by accompanying material safety data sheets ("MSDS"). After evaluation of workplace chemicals, employers are required to develop and implement a written hazard communication program for their workplaces "which at least describes how the criteria specified . . . for labels and other forms of warning, material safety data sheets and employee information and training will be met. . . ." 29 C.F.R. § 1910.1200(d) and (e).
1. Hazard Determination/Material Safety Data Sheets : The primary responsibility for hazard evaluation is placed on chemical manufacturers and importers of hazardous chemicals. 29 C.F.R. § 1910.1200(d)(1). Each chemical must be evaluated for its potential to cause adverse health effects, as well as its potential to pose physical hazards (e.g. flammability). The Standard provides general criteria for the manufacturer or importer to follow in evaluating the scientific evidence on whether a chemical may cause an adverse health effect and provides specific rules for the evaluation of chemical mixtures. 29 C.F.R. § 1910.1200(d)(2), (5); see 48 Fed. Reg. 53,347 (Appendix B to Standard). In addition, the Standard establishes, by reference to several enumerated lists, a "floor list" of approximately 2300 hazardous chemicals. 29 C.F.R. Part 1910, Subpart Z; 29 C.F.R. § 1910.1200(d)(3), (4).
The MSDS for each hazardous chemical is the primary means, under the Standard, for transmitting comprehensive hazard information. 48 Fed. Reg. 53,305. The MSDS will include the physical and chemical characteristics of the substance, its health and safety hazards, including symptoms of exposure, recommended maximum exposure limits, primary routes of exposure, generally applicable safe handling and use precautions and control measures. 29 C.F.R. § 1910.1200(g). Employer-purchasers will receive copies of the MSDS's produced by manufacturers for all hazardous chemicals in their workplace and will be required to ensure that they are readily accessible to all employees. Id. Workplace container labels designed to communicate to employees by message, word, picture or symbol, the dangers of the chemicals in the container, are keyed to the readily-available MSDS.
2. Labeling : Chemical manufacturers, importers and distributors must ensure that containers of hazardous chemicals leaving the workplace are appropriately labeled, and all manufacturing employers must similarly label in-plant containers. 29 C.F.R. § 1910.1200(f)(1), (4). The labels on containers leaving the workplace must include at least the "identity" of the chemical, appropriate hazard warnings and the name and address of the manufacturer, importer or other responsible party. Id.
The labeling requirement under the Standard expressly takes into account the applicability of other existing statutes or substance-specific health standards regulating hazardous materials. 29 C.F.R. § 1910.1200(a)(4). The Standard also directs that if labels already applied by a manufacturer, distributor or importer comply with the Standard's requirements, additional labels need not be applied. 29 C.F.R. § 1910.1200(f)(9).
The Standard recognizes the practical problems of labeling within a plant and allows a flexible approach. 48 Fed. Reg. 53,336. For example, if there are a number of stationary work containers which have similar contents (such as reactor vessels) within a work area, the employer may post signs or placards which convey the required hazardous information rather than individually labeling each piece of equipment. Employers may also use written material other than labels (e.g. process sheets, batch tickets, etc.) on stationary process equipment, as long as it is readily accessible to employees working in the area. In addition, the Standard as promulgated does not require labels on piping and support systems, the most costly items in any plan. 29 C.F.R. § 1910.1200(c). This resulted in an estimated cost savings of approximately 58% to 67% of the initial compliance cost and 70% of the annual cost associated with earlier proposals for the Standard which required such labeling. 48 Fed. Reg. 53,325.
3. Employee Training : The Standard specifies the subjects which must be covered by employee training programs. 29 C.F.R. § 1910.1200(h)(2).
(i) The claim that the information withheld is a trade secret can be support;
(ii) Information contained in the material safety data sheet concerning the properties and effects of the ...