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NEW JERSEY STATE CHAMBER OF COMMER. v. NEW JERSEY

February 13, 1987

NEW JERSEY STATE CHAMBER OF COMMERCE, PUBLIC SERVICE ELECTRIC AND GAS COMPANY, and JERSEY CENTRAL POWER & LIGHT COMPANY, Plaintiffs,
v.
STATE OF NEW JERSEY; CHARLES SERRAINO, Commissioner of Labor; and J. RICHARD GOLDSTEIN, M.D., Commissioner of Health, Defendants



The opinion of the court was delivered by: DEBEVOISE

 DEBEVOISE, District Judge

 I. Factual and Procedural Background

 Plaintiffs moved for summary judgment on October 24, 1985, contending that the Asbestos Act and Asbestos Regulations were expressly preempted by the 1972 Occupational Safety and Health Administration ("OSHA") Standard for Exposure to Asbestos Dust, 37 Fed. Reg. 11,318 (June 7, 1972) ("1972 Asbestos Standard"), amended, 51 Fed. Reg. 22,733-90 (June 20, 1986). Defendants cross-moved for summary judgment, asserting that there was no preemption. Resolving these motions, I held that the New Jersey Asbestos Hazard Abatement Subcode, N.J.A.C. 5:23-8 et seq. ("Asbestos Subcode"), applies exclusively to educational facilities and does not apply to facilities operated by the plaintiffs. Hence, the Asbestos Subcode was not preempted. New Jersey State Chamber of Commerce, et al. v. State of New Jersey, et al., No. 85-3996, Slip op. at 23 (January 13, 1986). Second, I held that §§ 8:60-4.6 (a)(1)-(3) of the Asbestos Regulations, which require employers licensed under the Asbestos Act to assure that work performed conforms to various OSHA standards, were expressly preempted and severable from the remainder of the Asbestos Act and Regulations. Id. at 24-25. These preempted provisions were subsequently deleted from the Asbestos Regulations. See 18 N.J. 986 (a) (May 5, 1986).

 Third, I concluded that the training programs mandated by the 1972 Asbestos Standard were either extremely limited in scope or extremely general and aspirational in nature and that the 1972 Asbestos Standard contained no asbestos education and training program comparable to that provided for in the New Jersey Asbestos Act and Regulations. I therefore held that the remainder of the Asbestos Act and Regulations were not expressly preempted nor in and of itself impliedly preempted, and I ordered that a factual record be developed concerning implied preemption.

 On June 20, 1986, OSHA published the Revised Asbestos Standards. See 51 Fed. Reg. 22,733-90. Both the Revised General Industry Standard and the Revised Construction Industry Standard contain comprehensive employee education and training programs. Accordingly, plaintiffs have again moved for summary judgment, seeking an order (i) declaring that the enforcement of the Asbestos Act and Regulations against employers using their own employees to perform asbestos work in their own facilities is in violation of § 18 of the OSH Act and the United States Constitution by virtue of the Revised Asbestos Standards and (ii) enjoining the defendants from enforcing these state enactments against such employers until the defendants obtain OSHA approval of a state plan.

 Defendants (collectively, "the State") have cross-moved for summary judgment on the asserted grounds that (i) plaintiffs' motion is not ripe for review, (ii) the present action has been rendered moot, and (iii) the Asbestos Act and Regulations promulgated thereunder are not preempted by the OSHA Revised Asbestos Standards.

 II. Revised Asbestos Standards

 The 1972 Asbestos Standard established an eight hour time weighted average ("TWA") permissible exposure limit ("PEL") for airborne concentrations of asbestos fibers of 5.0 fibers per cubic centimeters of air (5 f/cc) and imposed a ceiling limit of 10.0 fibers per cubic centimeters of air (10 f/cc). See 37 Fed. Reg. 11,418. A further reduction of the PEL to 2.0 f/cc fibers by July 1, 1976 was also mandated. Limited employee education and training provisions were incorporated by reference into the 1972 Asbestos Standard.

 On November 4, 1983, OSHA published an Emergency Temporary Standard for Occupational Exposure to Asbestos ("ETS") which reduced the PEL to 0.5 f/cc and expanded the 1972 Asbestos Standard's training provisions. 48 Fed. Reg. 51,085 (1983). In Asbestos Information Ass'n/North America v. OSHA, 727 F.2d 415, 427 (5th Cir. 1984), the Fifth Circuit invalidated the ETS on the ground that it was not issued in compliance with OSHA's enabling statute for emergency temporary standards. On April 10, 1984, OSHA published a proposed rule which sought to amend the 1972 Asbestos Standard. 49 Fed. Reg. 13,117 (1984). After extensive revisions, OSHA ultimately published the Revised Asbestos Standards in the Federal Register on June 20, 1986. See 51 Fed. Reg. 22,733-90. Separate standards were promulgated for the construction industry and general industry. These revised standards reduce the PEL to 0.2 f/cc, eliminate the ceiling limit, expand work practices and hygiene facility requirements, and introduce the "action level" concept. They also impose comprehensive employee training and education requirements upon employers.

 A. Scope and Application of Revised Asbestos Standards.

 The Revised Construction Industry Standard applies, inter alia, to all asbestos work covered by the Asbestos Act and Regulations. Compare N.J.A.C. 12:120-2.1 and 8:60-2.1 (defines "asbestos work") with 29 C.F.R. § 1910.12(b) and 29 C.F.R. § 1916.58(a) (defines "construction work"). The Revised General Industry Standard applies to all other employers not covered by the Revised Construction Industry Standard. See 29 C.F.R. § 1910.1001(a)(2). Together, these Revised Asbestos Standards apply to all employers subject to OSHA jurisdiction and comprehensively address the issue of reducing the hazards of asbestos exposure in the workplace. See 51 Fed. Reg. 22,678; 22,684. Since plaintiffs perform asbestos work covered by the Revised Construction Industry Standard, the substantive provisions of that OSHA Standard, which parallel those of the Revised General Industry Standard, are outlined below.

 B. Substantive Provisions of the Revised Asbestos Standard.

 The substantive provisions of these Revised Asbestos Standards are triggered by the airborne concentration of asbestos fibers. These standards prescribe the methods to measure employee exposure and require that monitoring results be communicated to affected employees. 29 C.F.R. § 1926.58(f)(5-6). OSHA established an "action level" of 0.1 f/cc which requires employers to comply with the periodic monitoring, employee training, and medical surveillance requirements. See 51 Fed. Reg. 22,679. Requirements for regulated areas, hygiene facilities, and protective clothing are triggered at the PEL of 0.2 f/cc. Id. Engineering controls and work practices are the preferred methods for achieving compliance with the PEL. See 51 Fed. Reg. 22,692-93. These methods may be supplemented with respirator use. 29 C.F.R. § 1926.58(g)(1)(ii).

 (1) Employee Information and Training.

 Employers must institute comprehensive training programs for all employees exposed to airborne asbestos concentrations exceeding the action level. Id. § (k)(3)(i). Each employee must be informed of the methods to recognize asbestos and the health effects of asbestos, including the relationship between smoking and asbestos in producing lung cancer. Id. § (k)(3)(iii). Employers must also ensure that these training programs inform each employee of:

 
[D] The nature of operations that could result in exposure to asbestos . . . the importance of necessary protective controls to minimize exposure including, as applicable, engineering controls, work practices, respirators, housekeeping procedures, hygiene facilities, protective clothing, decontamination procedures, emergency procedures, and waste disposal procedures, and any necessary instruction in the use of these controls and procedures;
 
. . . .
 
[F] The appropriate work practices for performing the asbestos . . . job.

 Id. § (k)(3)(iii) (D & F). See also 29 C.F.R. § 1926.21(b)(2-3). The Revised Asbestos Standards also incorporate the training provisions of the OSHA Respiratory Protection Standard. 29 C.F.R. § 1926.58(k)(3)(iii)(E). The Respiratory Protection Standard expressly provides that:

 
For safe use of the respirator, it is essential that the user be properly instructed in its selection, use, and maintenance. Both supervisors and workers shall be so instructed by competent persons. Training shall provide the men an opportunity to handle the respirator, have it fitted properly, test its face-piece-to-face seal, wear it in normal air for a long familiarity period, and, finally, to wear it in a test atmosphere.

 29 C.F.R. § 1910.134(e)(5). It requires every respirator wearer to receive instruction in how to correctly wear, adjust, and determine the proper fit of respirators. 29 C.F.R. § 1910.134(e)(5)(i). Such instructions must include both demonstrations by competent instructors and hands on practice by respirator wearers. 29 C.F.R. § 1910.134(e)(5). This training under the Revised Asbestos Standards must occur at the time of initial assignment and at least annually thereafter. 29 C.F.R. § 1926.58(k)(3)(ii).

 (2) Medical Surveillance/Recordkeeping.

 Employers must institute medical surveillance programs for all employees who are exposed to airborne asbestos concentrations exceeding the action level for 30 or more days per year or who wear negative pressure respirators. Id. § (m)(1). Medical examinations must be provided prior to use of such a respirator or within ten working days after such exposure and annually thereafter. Id. § (m)(2)(ii). These medical examinations include chest roentegenograms, pulmonary function tests, completion of standardized questionnaires, and a history to elicit symptomatology of pulmonary, cardiovascular, and gastrointestinal disorders. Id. § (m)(2)(ii). The examining physician must provide a written opinion containing the examination results and recommended limitations on protective clothing use. Id. § (m)(4)(iii). Employers must maintain records of this medical information and employee exposure measurements for at least 30 years, id. § (n)(2-3), and make these records available to affected employees and their designated representatives in accordance with 29 C.F.R. § 1910.20 (records access procedure).

 (3) Methods of Compliance with Permissible Exposure Level (PEL).

 (a) Engineering Controls

 To comply with the PEL, employers must adopt engineering controls including: local exhaust ventilation equipped with HEPA filter dust collection systems; general ventilation systems; vacuum cleaners equipped with HEPA filters; and enclosure or isolation of processes producing asbestos dust. 29 C.F.R. § 1926.58(g)(1)(i)(A-D).

 (b) Work Practices

 To maintain employee exposure below the PEL, employers must ensure that wet methods, wetting agents (e.g., amended water), or removal encapsulants are used during asbestos handling. 29 C.F.R. § 1926.58(g)(1)(i)(E). Asbestos contaminated waste must be disposed of in leak tight containers, id. § (g)(1)(i)(F), which are appropriately labeled, id. § (k)(2). Asbestos containing materials may not be applied by spray methods or removed by compressed air (unless an enclosed ventilation system is used). Id. § (g)(2)(ii-iii). Employee rotation as means of PEL compliance is strictly prohibited. Id. § (g)(3).

 (c) Respiratory Protection

 (4) Regulated Areas/Hygiene Facilities.

 Employers must establish regulated areas when they reasonably expect the PEL to be exceeded. Id. § (e)(1). The boundaries of these areas must be marked with warning signs. Id. §§ (e)(2), (k)(1). Access is limited to certain designated employees who must be supplied with respirators. Id. § (e)(3-4). Clean change areas with separate storage facilities for street clothing and protective clothing must be provided. Id. § (j)(1)(i-ii). Eating, drinking, applying cosmetics, and chewing tobacco or gum are prohibited within regulated areas. Id. § (e)(5).

 Additionally, more elaborate regulated areas must be established when asbestos removal, demolition, and renovation operations are being performed. Id. § (e)(6) ("removal operations"). Before commencing such removal operations, employers shall construct negative pressure enclosures, whenever feasible. Id. § (e)(6)(i). Decontamination areas, consisting of a serial arrangement of an equipment room shower area and clean area, must be constructed adjacent to the regulated area for removal operations. Id. § (j)(2)(i-iii). These more elaborate regulated areas and hygiene facilities do not have to be established for small-scale, short duration general maintenance or renovation operations, such as pipe repair or valve replacement. Id. §§ (e)(6)(iv), (j)(2)(i). Moreover, periodic monitoring of employees within these regulated areas may be terminated if their exposure is below the action level of 0.1 f/cc. Id. § (f)(3-4).

 (5) Protective Clothing

 Employers must provide protective clothing to all employees exposed to asbestos concentrations exceeding the PEL. Id. § (i)(1). Such clothing includes coveralls or similar whole body clothing, gloves, head and foot coverings. Id. Contaminated clothing must be transported in sealed impermeable containers and laundered in a manner preventing the release of asbestos exceeding the PEL. Id. § (i)(2-3).

 III. New Jersey Asbestos Act and Regulations as Presently Constituted.

 A. Asbestos Licenses and Permits

 The New Jersey Legislature enacted the Asbestos Control and Licensing Act, finding that

 
the application, enclosure, removal and encapsulation of asbestos when improperly performed creates unnecessary health and safety hazards which are detrimental to the State's interest, and that of its citizens, in terms of wage loss, insurance, medical expenses, disability compensation payments, family life, preservation of human ...

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