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Environmental Encapsulating Corp. v. City of New York and City of New York Department of Environmental Protection

decided: August 17, 1988.


Environmental Encapsulating Corp., et al., appeal from the August 31, 1987 judgment of the United States District Court for the Southern District of New York (Walker, J.) based on an opinion, reported at 666 F. Supp. 535 (S.D.N.Y. 1987), denying their motion for a preliminary injunction, granting the City of New York and the Department of Environmental Protection's motion for summary judgment, and dismissing the appellants complaint on the ground that local regulations were not preempted by the Occupational Safety and Health Act.

Cardamone and Pierce, Circuit Judges and Stanton, District Judge.*fn*

Author: Cardamone

CARDAMONE, Circuit Judge:

This appeal from the grant of a motion for summary judgment addresses the interplay between a state's exercise of its police power and federal law regulating occupational health and safety matters. In this case the legislative efforts are directed toward asbestos, whose invisible airborne fibers carry a deadly potential for humans.

Asbestos, a family of inorganic fibrous mineral substances once thought to be "wonder materials" and commonly used in building construction, has been identified in recent years as a formidable public health threat. Exposure to airborne asbestos fibers -- often one thousand times thinner than a human hair -- may induce several deadly diseases: asbestosis, a nonmalignant scarring of the lungs that causes extreme shortness of breath and often death; lung cancer; gastrointestinal cancer; and mesothelioma, a cancer of the lung lining or abdomen lining that develops 30 years after the first exposure to asbestos and that, once developed, invariably and rapidly causes death. In 1972 New York City completely banned asbestos spraying in construction. But before the deadly hazards of asbestos were realized, more than half of the high-rise commercial buildings built in the City between 1958 and 1972 used asbestos as fireproofing material and, moreover, virtually every boiler room uses the material as a thermal insulator. New York City buildings contain an estimated 3.5 million tons of asbestos.

With the preservation of public health skating on such thin ice, both the federal government and the City of New York have recognized that safety lies in speedy action, which each has taken. The federal Occupational Safety and Health Administration (OSHA) has promulgated regulations protecting construction workers from asbestos exposure pursuant to the Occupational Safety and Health Act of 1970, Pub. L. No. 91-596, 84 Stat. 1590, reprinted in 1970 U.S. Code Cong. & Admin. News 1852 (codified as amended at 29 U.S.C. §§ 651-678 (1982)) (the Act or OSH Act). The City of New York (City) and its Department of Environmental Protection (DEP) also have established a training and certification program for workers who handle asbestos (DEP program or regulations) to minimize the threat to the public from asbestos removal.

Appellants Environmental Encapsulating Corp., et al. (collectively Environmental Encapsulating) are asbestos abatement contractors. Their employees remove asbestos from public and private buildings in New York City. Appellants contend that the local government's campaign against public exposure to airborne asbestos is preempted by federal law. A thorough exposition of the local and federal regulatory programs is necessary to understand fully the basis of appellants' claim.


A. The New York City Program

On November 19, 1985 the New York City Council passed Local Law 76, which amended the City Air Pollution Control Code to provide that "it shall be unlawful for any individual to handle friable asbestos material in the course of performing work for compensation on an asbestos project unless such individual is a holder of a current, valid asbestos handling certificate." New York, N.Y., Admin. Code § 24-146.1(b)(1) (1986). "Friable asbestos material" is "any asbestos or any asbestos containing material that can be crumbled, pulverized or reduced to powder when dry, by hand pressure." Id. § 24-146.1(a)(9). Similarly, it became unlawful to employ any individual to handle friable asbestos material unless that person possessed a valid handling certificate. Id. § 24-146.1(b)(2). Local Law 76 further provided that the DEP commissioner should promulgate regulations "establishing procedures for the safeguarding of the health and safety of the public and all persons who work at or in the vicinity of an asbestos project," id. § 24-146.1(c), and "establishing criteria for certifying individuals as eligible to receive an asbestos handling certificate and for certifying programs as approved safety and health programs," id. § 24-146.1(d)(1).

In its statement of legislative findings and intent, the City Council stated that it found "that the predominant cause of asbestos becoming airborne is due to the performance of building renovation and demolition without adequate adherance [sic] to procedures for safeguarding workers and the general public, by persons who have not received adequate training in the handling of materials containing asbestos." Local Law 76, § 1. The Council continued that the purpose of Local Law 76 was " to safeguard the public health by requiring that renovation or demolition projects which disturb asbestos be conducted in accordance with procedures established pursuant to the provisions of this local law and that workers who handle materials containing asbestos receive appropriate training." Id. (emphasis added).

On November 19, 1986 the DEP published its mandatory curriculum for the certification program. In December the City notified approximately 1200 contractors -- including appellants -- that employee certification would be required as of April 1, 1987. Mayor Koch thereupon signed Local Law 80, which required that asbestos workers hold the DEP training certificate as of April 1st. The City grants contractors a building or demolition permit only if they show that each employee working at an asbestos project holds such a certificate. Use of uncertified employees may result in fines or revocation of a previously issued building permit.

Under the DEP regulations an employee seeking an asbestos handling certificate must complete a four-day, DEP-approved training course and pass a two-hour written examination on subjects covered in the course. See Department of Environmental Protection, Rules and Regulations Governing Training of Asbestos Handlers, Asbestos Handler Supervisors, and Asbestos Investigators §§ 8110-8111 (1986). Biennial review courses are required to renew the handler certificate. See id. § 8123(b)(2). An approved DEP training course for asbestos handlers must cover specific topics -- set out in full in the Appendix -- and must encompass instruction on the physical characteristics of asbestos -- one hour (id. § 8111(a)(3)); the health hazards and effects of asbestos -- two hours (id. § 8111 (a)(4)); requirements for medical surveillance procedures -- one hour (id. § 8111(a)(5)); respiratory protection -- three and one-half hours (id. § 8111(a)(6)); personal protective equipment -- one-half hour (id. § 8111(a)(7)); state-of-the-art work practices for asbestos abatement activities -- two hours (id. § 8111(a)(8)); case studies of problems arising in abatement activities -- one hour (id. § 8111(a)(9)); preparation of work area -- three hours (id. § 8111(a)(10)); federal, state, and local regulations -- two hours (iD. § 8111(a)(11)); proper methods of collecting asbestos samples to minimize airborne fibers -- one hour (id. § 8111(a)(12)); remediation methods -- two and one-half hours (id. § 8111(a)(13)); decontamination systems -- one and one-half hours (id. § 8111(a)(14)); safety hazards -- one hour (id. § 8111(a)(15)); and personal hygiene -- one hour (id. § 8111(a)(16)). The cost of complying with the training and certification program is estimated at $600 per certified worker, which includes the cost of the training course and a $100 certification fee.

B. Federal Regulations

Federal regulations also address problems of asbestos exposure, but emphasize protecting workers rather than safeguarding the public health. Specifically, OSHA's "Revised Construction Standard," promulgated in 1986, establishes updated asbestos exposure level standards and employee training requirements. See 29 C.F.R. § 1926.58 (1987). Paragraph k of the Revised Construction Standard requires employers to communicate to their employees the dangers of asbestos by means of signs, labels, and employee information and training. Id. at § 1926.58(k). An employer's training program must inform employees of the following subjects:

(A) Methods of recognizing asbestos . . .;

(B) The health effects associated with asbestos . . . exposure;

(C) The relationship between smoking and asbestos . . . in producing lung cancer;

(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;

(E) The purpose, proper use, fitting instructions, and limitations of respirators as required by 29 C.F.R. 1910.134;

(F) The appropriate work practices for performing the asbestos . . . job;

(G) Medical surveillance program requirements; and

(H) The content of [the Revised Construction] standard, including appendices.

Id. at § 1026.58(k)(3). OSHA's Revised General Industry Standard contains comparable training provisions. See 29 C.F.R. § 1910.1001(j)(5)(iii) (1987).

Although the Revised Construction Standard training program is mandatory, there is no requirement that asbestos handlers be tested or certified. After considering such a requirement, OSHA "determined that the training requirement in the final rule will provide construction employees with an understanding of the hazards of asbestos and the necessary protective measures to permit them to participate actively in their employer's training and hazard control programs." 51 Fed. Reg. 22,725 (1986). Employers may administer the training program themselves or may "rely on third-party training programs, such as EPA-sponsored courses on asbestos abatement." Id. In contrast, compliance with the City's DEP training course mandates that the employer utilize a DEP-approved, third-party program.


On April 17, 1987 appellants brought the instant action in the United States District Court for the Southern District of New York (Walker, J.) seeking a declaratory judgment that the DEP program was invalid on the ground that the OSH Act and the Revised Construction Standard preempted the program or, alternatively, that the implementation of the program violated the due process clause of the Fourteenth Amendment. Appellants also moved for a preliminary injunction preventing enforcement of the DEP program. The district court entered a temporary restraining order preventing the City from enforcing the program against the appellants for 10 days, later extended until the date of that court's decision on appellants' motion for a preliminary injunction.

On July 31, 1987 Judge Walker denied appellants' motion for a preliminary injunction and granted the appellees' motion for summary judgment dismissing the complaint. Environmental Encapsulating Corp. v. City of New York, 666 F. Supp. 535 (S.D.N.Y. 1987). The district court found that the OSH Act does not expressly preempt the DEP regulations because the DEP program "focuses on public health protection that is largely absent from the OSHA standard" and because "the thrust of the City's certification program goes well beyond that of the OSHA Revised Construction Standard." Id. at 541-42.

Judge Walker also rejected the argument that the OSHA regulatory scheme impliedly preempts the DEP program. He found that the DEP program has two purposes, first, to protect the public health and, second, to protect employee health and safety. Given these dual purposes, the court held that no implied preemption existed. Id. at 543. The district court declined to invalidate those portions of the DEP program which clearly related only to asbestos worker safety on the ground that "to require that the City delete any mention of the potential hazard faced by individuals working with asbestos from the certification courses . . . would render the courses at best incomplete, at worst seriously misleading." Id. at 545. Appellants' due process arguments were rejected as "border[ing] on the frivolous." Id. at 546. Environmental Encapsulating appeals only from the district court's preemption ruling.


The issue on this appeal is whether the OSH Act and the OSHA Revised Construction Standard expressly or impliedly preempt the City of New York's DEP certification and training program. For the reasons set forth ...

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