# Petition for Writ of Certiorari — Gade v. National Solid Wastes Management Assn.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 505 U.S. 88

## Text

In The

Supreme Court of the United States
Octcber Term, 1990

S
vv

MARY GADE, Director of the
[llinois Environmental Protection Agency,

Petitioner,

NATIONAL SOLID WASTES
MANAGEMENT ASSOCIATION,

Respondent.

®
4

Petition For A Writ Of Certiorari To The United States
Court Of Appeals For The Seventh Circuit

. 4

PETITION FOR A WRIT OF CERTIORARI

,%
i

RoLtanp W. Burris
Attorney General of Illinois

RosaLyN B. Kaplan
Solicitor General

100 W. Randolph Street
12th Floor

Chicago, Illinois 60601
(312) 814-3698

Attorneys for Petitioner

*

Joun A. SIMON
Assistant Attorney General
100 W. Randolph Street
13th Floor
Chicago, Illinois 60601
(312) 814-3672

Of Counsel.

* Counsel of Record

COCKLE LAW BRIEF PRINTING CO, (800) 225-4964
OR CALL COLLECT (402) 342-2831 .

QUESTION PRESENTED

Whether section 18 of the Occupational Safety and Health
Act precludes Illinois from promoting public safety and
environmental protection through the use of its tradi-
tional police power to license occupations merely because

its licensing requirements also serve OSHA's purpose of
worker safety?

TABLE OF CONTENTS

Page
QUESTION PRESENTED .......00ssss00s0 eee i
TABLES OF AUTHORITIOS......+:

REASONS FOR GRANTING THE WRIT

Historically, the safety and health hazards in and
around the workplace threatened only the workers them-
selves. Developments in technology have changed this
fundamental fact. The presence of harmful substances in
many of the workplaces of today also seriously threatens

the public safety because of the effect that these
extremely toxic substances have on the general environ-
ment.

Many state and local governments have responded to
this growing threat by enacting public safety legislation
which also promotes worker safety. The fact that other
states have enacted legislation addressing these public
safety concerns emphasizes their importance. Like IlIli-
nois, these other states have had their public safety legis-
lation challenged on the grounds that it was preempted
by OSHA. The prevalence of this issue is demonstrated
by the fact that four different federal circuits have
addressed it within just a few years. The Supreme Court's
guidance on this widespread issue of public concern is
needed. Furthermore, each of the four circuits has pro-
vided a different and conflicting answer to the question
of whether OSHA preempts this growing body of public
safety legislation. The widely divergent decisions of the
four circuits warrant this Court’s exercise of its super-
visory authority to resolve the conflict among the circuits.

I. THE SEVENTH CIRCUIT’S FINDING OF EXPRESS
PREEMPTION DIRECTLY CONFLICTS WITH THIS
COURT’S AUTHORITY WHICH HOLDS THAT
EXPRESS PREEMPTION EXISTS ONLY WHERE
THE FEDERAL ACT CONTAINS EXPLICIT PRE-
EMPTIVE LANGUAGE.

The Seventh Circuit’s majority opinion construes sec-
tion 18 of the OSH Act, 29 U.S.C.A. § 667, to “unques-
tionably preempt” and “expressly prohibit” states from
adding to OSHA worker safety regulations despite the

fact that there is no explicit preemptive language in sec-
tion 18. (Pet. App. 14, 17). This Court’s authority consis-
tently provides that express preemption exists only if that
is the clear and manifest purpose of Congress and there is
explicit preemptive language in the federal enactment.’
English v. General Electric Co., U.S. , 110 S.Ct. 2270,
2275 (1990). See also California v. ARC America Corp., 490
U.S. 93 (1989); Pacific Gas and Electric Co. v. State Energy
Resources Comm'n, 461 U.S. 190 (1983); Rice v. Santa Fe
Elevator Corp., 331 U.S. 218 (1947). The fact that a federal
regulation is comprehensive does not support a preemp-
tive inference; “pre-emption, if it is intended must be
explicitly stated.” Puerto Rico Dept. of Consumer Affairs v.
ISLA Petroleum Corp., 485 U.S. 495, 504 (1988).

Section 18 contains no express or specific language
which preempts state licensing or public health and
safety acts such as the Illinois licensing acts. The fact that
the majority resorted to an analysis of the legislative

3 Where Congress intends to expressly preempt state law,
it specifically states so in the federal act. See, e.g., Employee
Retirement Income Security Act, 29 U.S.C.A. § 1144fa),
(“Supersedure .. . the provisions of this title . . . shall super-
sede any and all state laws insofar as they may now or hereaf-
ter relate to any employee benefit plan .. . ”); Emergency
Petroleum Allocation Act, 15 U.S.C.A. § 751, (“The regula-
tion .. . shall preempt any provision . . . by any state... ”).
Federal agencies have also explicitly stated Congress’ intent to
preempt in their regulations. See, e.g., Hazard Communication
Standard, 19 C.F.R. § 1910.1200(a)(2) (1990), (“This occupa-
tional safety and health standard is intended to address com-
prehensively .. . and to preempt any legal requirements of a
state . . . pertaining to this subject.”).

10

history demonstrates the absence of any explicit preemp-
tive language in the text of the federal act. The majority's
searching analysis of congressional purpose is consistent
with an implied preemption analysis; however, the Court
did not find implied preemption. On the contrary, the
court specifically found that “section 18 does not evi-
dence a congressional intent to achieve uniformity in
worker health and safety regulation.” (Pet. App. 15).

Given the fact that states have only recently enacted
public safety legislation which also regulates worker
safety, there is no evidence that Congress actually con-
templated that OSHA would be construed to preempt
such state legislation. Yet, “[p]reemption fundamentally
is a question of congressional intent.” English, supra, 110
S.Ct. at 2275. Congress should first be given the oppor-
tunity to consider the importance of the states’ concerns
before the court so readily attribute to Congress the
“clear” and “express” intent to preempt this emerging
body of state public safety legislation.

Section 18(a) expressly provides that states are not
preempted from regulating worker safety in some cases:
“[nJothing in this chapter shall prevent any State... from
asserting jurisdiction over any occupational safety or
health issue with respect to which no [federal] standard is
in effect.” 29 U.S.C.A. § 667(a). The majority decision
assumes that this anti-preemption clause, coupled with
section 18(b), preempts everything it does not expressly
save. In so doing, the majority appears to be finding
express pree ption by negative implication. As Judge
Easterbrook states, “[f]rom the listing in § 18(a) and 18(b)
of two ways the state may apply its law, coupled with the
preservation in § 4(b)(4), 29 U.S.C. § 653(b)(4), of

11

worker’s compensation laws, the court infers that there
are no others.” (Pet. App. 36). This application of the
maxim expressio unius est exclusio alterius has no force in
the case at bar. First, while federal regulations of health
and safety may in some instances provide all the protec-
tion necessary, the Agency did not believe that to be the
case here. The regulation establishes a minimum require-
ment. “General site workers . . . shall receive a minimum
of 40 hours of instruction... .” 29 C.F.R. § 1910.120(e)(3)
(1990). Second, the majority’s approach disregards this
Court's long-standing authority that a state's exercise of
its historic police powers is presumed not to be pre-
empted. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230
(1947); Huron Portland Cement Co. v. City ef Detrott, 362
U.S. 440, 442 (1960). Third and finally, as Judge kast-
erbrook points out: “To treat anti-preemption clauses as if
they implicitly preempt all they do not save may invert
the proper result.” (Pet. App. 37).

The only mention of the word “preempt” in the OSH
Act appears .: the heading of Section 18(b):

(b) Submission of State Plan for development
and enforcement of State standards to preempt
applicable Federal standards.

29 U.S.C.A. § 667(b). The plain language of this provision
reflects Congress’ intent to permit states to preempt fed-
eral occupational safety standards pursuant to OSHA
authorized state plans which are at leasi as effective as
the federal standards. Section 18 does not clearly reflect
an intent to prohibit states which do not have OSHA
authorized state plans from enacting supplemental occu-
pational safety legislation which does not displace or

12

otherwise conflict with the federal standards. Judge East-
erbrook correctly argued that Section 18(b) “sounds like
an option for the states, not like a constraint.” (Pet. App.
35). If the states wish to preempt the federal standards,
they must submit a plan which is at least as effective at
promoting worker safety; otherwise state regulation may
only supplement or add to OSHA standards in a manner
which does not conflict with OSHA. Illinois has not opted
to preempt OSHA. The Illinois licensing acts further state
goals of protecting the public safety and the environment
as well as the additional goal of protecting workers.

Not only is there no express preemption language in
the OSHA Act, there is also no such language in OSHA‘s
final Hazardous Waste Operations rule. 29 C.F.R.
§ 1910.120. The Seventh Circuit acknowledged that
although OSHA has in some cases declared its intent to
preempt all state and local requirements on a particular
aspect of worker health and safety, no such statement can
be found in the Hazardous Waste Operations final rule.
(Pet. App. 13). The Court further found that“... OSHA
has explicitly attempted to avoid broad preemptive effect
in promulgating the final rule here.” (Pet. App. 14). The
court’s own findings undermine its conclusion that sec-
tion 18 was intended to preempt state law. The court's
decision that section 18 expressly preempts the Illinois
licensing acts, notwithstanding the absence of any
explicit language to that effect, is contrary to the long-
standing authority of this Court and should be reversed.

13

Il. THE SEVENTH CIRCUIT’S DECISION PRECLUD-
ING ILLINOIS FROM PROMOTING PUBLIC
SAFETY AND PROTECTING THE ENVIRON-
MENT THROUGH LICENSING ACTS WHICH
ALSO FURTHER WORKER SAFETY IS CON-
TRARY TO THIS COURT’S AUTHORITY WHICH
PERMITS STATE LAWS TO SUPPLEMENT FED-
ERAL LAWS.

The Seventh Circuit’s decision in the case at bar
denies to the states the traditional tool of occupational!
licensing as a means to protect the public safety and
environment. The court acknowledged that “[t]he lan
guage of section 18 of the OSH Act does not indicate
whether a state law or regulation that purports to serve a
dual purpose is preempted.” (Pet. App. 14). The court
further stated that the Illinois licensing acts are designed
to “protect life, limb and property... ,” which is a “valid
state concern independent of worker health and safety.”
(Pet. App. 12). Nevertheless, the Seventh Circuit held that
the OSH Act expressly preempted the illinois licensing
acts.

Federal courts rarely infer preemption of “state law
in areas traditionally regulated by the states.” California v
ARC America Corp., 490 U.S. 93, 101 (1989). Licensing and
entry into an occupation have traditionally been regu-
lated by the states. Dent v. West Virginia, 129 U.S. 114, 122
(1899); Ferguson v. Skrupa, 372 U.S. 726, 731-32 (1963).
Furthermore, the Supreme Court has noted that the field
of interstate waste management was not preempted by
federal law and that the handling of wastes should con-
tinue to be primarily the function of state, regional and
local agencies pursuant to the Solid Waste Disposal Act,
42 USC. § 6901(a)(4). City of Philadelphia v. New Jersey,

14

437 U.S. 617, 621 n.4 (1978). Nevertheless, Illinois’ deci-
sion to require licensing of hazardous waste crane opera-
tors and laborers was afforded no deference by the court.

The Seventh Circuit’s decision is contrary to this
Court’s authority which dictates that the presence of a
federal regulatory system does not imply that a state is
precluded from enacting its own regulations. English,
supra, 110 S.Ct. 2270. This Court affirmed the validity of
state regulation which overlapped federal regulation in
CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69 (1987).
The issue in CTS was whether the federal Williams Act
preempted Indiana’s statute regulating takeovers. The
Court of Appeals found preemption based on the fact that
the Indiana act imposed a 50-day delay on the consum-
mation of tender offers while the federal law provided a
20-day period. Id. at 76. The Supreme Court reversed the
Court of Appeals and stated:

Because it is entirely possible for entities to

comply with both the Williams Act and the Indi-

ana Act, the state statute can be found pre-

empted only if it frustrates the purpose of the
federal law.

Id. at 79. This Court examined the purpose of the federal
law and determined that the state’s stricter regulation did
not frustrate the federal purpose; rather, it furthered the
federal policy of investor protection. Id. at 82.

Similarly, in the case at bar, the Illinois licensing acts
impose training, testing and experience requirements on
certain hazardous waste workers which do not conflict
with the federal training requirements. As the purpose of
the OSH Act is “to provide safe and healthful working
conditions,” (29 U.S.C.A. § 651(b)), the Illinois licensing

15

acts clearly further the federal policy underlying OSHA.
It is entirely possible to comply with both the Illinois
licensing acts and the federal regulation. Therefore, the
decision of the Seventh Circuit preempting the Illinois
licensing acts conflicts with this Court’s decision in CTS.

The decisions of this Court repeatedly hold that
states are free to supplement federal requirements. In
Hillsborough County v. Automated Medical Laboratories, Inc.,
471 U.S. 707 (1985), this court specifically explained that
“[there is] a presumption [that] state and local regulation
of health and safety matters can constitutionally coexist
with federal regulation.” Id. at 716. More recently, in
English this Court stated that even the existence of a
detailed federal regulatory scheme does not by itself
imply preemption and “cannot mean... that every
federal statute ousts all related state law.” 110 S.Ct. at
2279. In the OSH Act itself, Congress has sanctioned the
coexistence of certain state occupational regulation, such
as worker compensation laws, with the OSHA standard
on hazardous waste operations. 29 U.S.C.A. § 653(b)(4).
The majority offers no explanation why the Illinois licens-
ing acts cannot similarly coexist with the OSHA regula-
tion.

There is no basis for the Seventh Circuit’s assertion
that the purpose of section 18 would be defeated if a state
could impose measures stricter than OSHA’s. The court’s
concern that “[s]uch unauthorized state regulation

. could result in duplication and unwarranted addi-
tional costs...” (Pet. App. 18-19), is unfounded and was
rejected by the Third Circuit in United Steelworkers of
America v. Auchter, 763 F.2d 728 (3rd Cir. 1985), which
found that Congress’ intent was “ . . . that the OSH Act

16

provide a federal floor for safety in the worplace.” Id. at
734.

Furthermore, there are certain hazardous waste oper-
ations covered by the Illinois licensing acts that are not
covered by the OSHA standard on hazardous waste oper-
ations. Because of OSHA’s exclusive concern for
employer-employee relationships, independent contrac-
tors who work on their own are not regulated by OSHA.
For example, a landowner ordered by the state to remove
thirty barrels of toxic materials from his property may
engage John Brown, an experienced crane Operator, to
perform the removal project. Because Brown is a sole
proprietor and hires no employees, the federal OSHA
hazardous waste operations standard does not apply to
the project. In contrast, under the Illinois licensing act,
Brown would be required to demonstrate his competency
through training and experience. Thus, by striking the
Illinois licensing acts, the Seventh Circuit has removed
certain hazardous waste work from any regulation what-
soever, thereby posing a threat to the public health and
safety.

The consequences of the Seventh Circuit’s decision
spell disaster for a wide variety of state and local public
health and safety legislation. For example, OSHA has
promulgated an extensive safety standard relating to the
general installation of electrical systems. 29 C.F.R
§ 1910.301 (1990). Provisions of the OSHA standard are
duplicated in the National Electrical Code which is
adopted, largely verbatim, by local building code authori-
ties. The decision of the Seventh Circuit would in effect
invalidate all of these local electrical codes. Furthermore,
pursuant to the court’s reasoning, all state and local

17

government laws licensing electricians would also be pre-
empted since OSHA has issued a standard which pre-
scribes the manner in which electrical equipment must be
installed in the workplace.

Similarly, OSHA has issued a proposed rule govern-
ing occupational exposure to bloodborne pathogens, such
as the HIV or Hepatitis B virus. 54 Fed. Reg. 23042 (May
30, 1989) (to be condified at 29 C.F.R. § 1910). The pro-
posed OSHA bloodborne pathogen standard will require
that all employees receive extensive training in the safe
handling of infected and potentially-infected materials.
Doctors, dentists, nurses, midwives, medical technicians,
and embalmers who are also “employees routinely
exposed to human blood” will be affected by the OSHA
standard. (Id. at 23073). Applying the test for OSHA
preemption developed by the Seventh Circuit, all of the
state acts which license these professionals would be
preempted by the new OSHA standard. Unquestionably,
this is not the result intended by Congress, especially
considering that the OSHA standard does not protect the
public as adequately as do the state licensing acts.

Contrary to the suggestion of the Seventh Circuit, its
decision presents more than a mere procedural obstacle
to the state’s efforts to regulate public safety and the
environment. The Court’s recommendation to Illinois
that, if its interest in the public safety and environment is
genuine, it need only submit its licensing acts to OSHA
for approval is unrealistic. (Pet. App. 31-32). First, OSHA
is not concerned with environmental and public safety
issues. Second, OSHA has never approved a state plan on
such a limited issue as occupational licensing. Finally,
Illinois does not wish to displace OSHA occupational

18

health and safety standards. Accordingly, the decision of
the Seventh Circuit in this case has serious and far reach-
ing consequences on state public safety legislation.

Il. THE CONFLICTING AND WIDELY DIVERGENT
DECISIONS OF THE FIRST, SECOND, THIRD
AND SEVENTH CIRCUITS WARRANT THIS
COURT’S EXERCISE OF ITS SUPERVISORY
AUTHORITY TU RESOLVE THE IMPORTANT
PUBLIC POLICY ISSUE OF OSHA PREEMPTION
OF STATE PUBLIC SAFETY REGULATION.

The four different circuit courts of appeals which
have addressed the question of whether OSHA preempts
state laws which regulate worker safety and public safety
have produced four different answers. Prior to the deci-
sion of the Seventh Circuit, each succeeding decision
further limited the preemptive effect of section 18 upon
the state’s exercise of its traditional police powers. The
Seventh Circuit decision openly broke with this trend and
preempted state law which concededly would have sur-
vived under the tests developed by each of the other
three circuits.

The first federal court of appeals to rule on the pre-
emptive effect of section 18 of the OSH Act on state
regulation of worker safety and public safety was the
Third Circuit in New Jersey State Chamber of Commerce v.
Hughey, 774 F.2d 587 (3rd Cir. 1985) (“Hughey I”), appeal
after remand, 868 F.2d 621 (3rd Cir. 1989) (“Hughey II”),
cert. denied, US. _,109S.Ct. 3246 (1989). Unlike the
OSHA standard involved in the case at bar, the OSHA
Hazardous Communication standard at issue in Hughey
expressly preempted state law pertaining to the subject.
29 C.F.R. § 1910.1200(a)(2) (1984). Nevetheless, the
Hughey court upheld those provisions of the New Jersey

19

Act which had as their “primary purpose” the broader
concerns of public safety and environmental protection.

The Third Circuit reasoned:

Because OSHA standards by definition govern
occupational safety and health issues, they do
not preempt state laws that regulate other con-
cerns. The Secretary has authority to promulgate
standards only as to occupational safety and
health and those standards cannot have a pre-
emptive effect beyond that field... .

Hughey, 774 F.2d at 593.

The Seventh Circuit acknowledged that “[u]nder the
Third Circuit’s test, the 4,000-hour requirement might
survive, since it is directed both to worker health and
safety and to ‘broader’ concerns.” (Pet. App. 29). Nev-
ertheless, the Seventh Circuit held the Illinois 4,000 hour
requirement expressly preempted. By invalidating Illi-
nois’ requirements which served the “dual purpose” of
protecting workers and the public, the court rejected not
only the Third Circuit’s formulation of the test for pre-
emption but, more importantly, it completely rejected the
premise of that decision which was that Congress never
intended OSHA to preempt state public safety and envi-
rcnmental protection laws.

The Second Circuit Court of Appeals was the next
court to address the issue of OSHA preemption in Envt-
ronmental Encapsulating Corp. v. New York City, 855 F.2d at
48 (2nd Cir. 1988). The Second Circuit agreed that OSHA
can only preempt regulation in the area of occupational
safety and health. Specifically it explained: “Local legisla-
tion enacted for the sole purpose of protecting the public
health would not, on its face be preempted by the Act.”

20

Id. at 55. The Second Circuit criticized the Third Circuit's
test on the ground that: “ ‘primary’ is an ambiguous word
and to adopt its use leads down an unmarked avenue of
inquiry into legislative motive, which is ‘often an unsat-
isfactory venture.’ ” Id. at 57, citing Pacific Gas and Electric
Co. v. State Energy Resources Conservation & Dev. Comm'n,
461 U.S. 190 (1983). Therefore, the Second Circuit devel-
oped a different test upholding local regulations for
which there is a “legitimate and substantial purpose apart
from protecting asbestos workers.” Environmental Encap-
sulating, 855 F.2d at 57. The Second Circuit upheld train-
ing and testing requirements of the New York City
ordinance because those provisions promoted the legiti-
mate purpose of public safety in addition to the strictly
worker safety purpose regulated by OSHA.

The Seventh Circuit acknowledged that the Second
Circuit upheld local regulation of workers regulated by
OSHA absent any OSHA approved State Plan when the
local legislation served the dual purpose of protecting
worker safety and public safety. (Pet. App. 30). Further-
more, the court expressly found that the challenged IIli-
nois laws “directly, clearly and substantially implicated
worker health and safety as well as public health and
safety.” (Pet. App. 29). Nonetheless, the Seventh Circuit
invalidated the Illinois law.

The First Circuit Court of Appeals addressed the
issue of section 18 preemption in Associated Industries of
Massachusetts v. Snow, 898 F.2d 274 (1st Cir. 1990). As in
the case at bar, the Snow case involved occupational
licensing laws which required training and testing of
workers already subject to OSHA regulation. The First

21

Circuit upheld the validity of almost all the more strin-
gent Massachusetts requirements which had the effect of
promoting public safety even though they accomplished
this purpose by regulating workers. The First Circuit
noted that the Third and the Second Circuit tests require
inquiry into legislative intent. Snow, 898 F.2d at 279.
Rather than attempting to divine the legislative purposes
underlying the state law, the First Circuit focused its
attention on the “effect” of the state law and formulated
its test for section 18 preemption as follows:

If the effect is to protect the public, the state
regulation is not preempted. If the effect is
solely to protect the workers, the OSHA stan-
dard prevails and the state regulation falls. If
the effect is to protect the public by regulating
workers and work places, the regulation stands
because its ultimate effect is the protection of
the public.

Snow, 898 F.2d at 280.

The test enunciated in Snow is an objective test which
does not require inquiry into the state legislature’s intent.
It preserves the supremacy of the OSHA regulations in
case of actual conflict with state law yet it leaves the
states free to exercise the traditional police power of
occupational licensing to protect the public. Nevertheless,
the Seventh Circuit rejected the First Circuit’s test for
section 18 preemption on the grounds that even “the
likelihood that a particular provision will have a benefi-
cial effect upon the public health and safety” cannot save
the provision. (Pet. App. 31).

As the foregoing decisions of the First, Second, Third,
and now the Seventh Circuits reflect, there are currently

22

four different answers to the question of whether and to
what extent section 18 of the OSH Act preempts state law.
The First and Second Circuit’s rejected the Third Circuit's
test in favor of tests which further limited the preemptive
effect of section 18. The Seventh Circuit, on the other
hand, rejected the tests of each of the other circuits in
favor of a test which broadens the preemptive effect of
section 18. The widely divergent decisions of the four
circuit courts on this issue demonstrate the need for this
Court to authoritatively resolve this conflict.

Also, the fact that four different circuits have grap-
pled with this issue within the last few years demon-
strates the importance of this question of federal law.
Indeed, in each case, thousands of workers are directly
regulated by the state legislation and millions of others
are directly atfected by the public safety and environmen-
tal aspects of the legislation. This illustrates the far reach-
ing consequences of this unresolved issue of federal law
and the need for this Court’s supervisory guidance.

+

23

CONCLUSION

For all the reasons stated above, Petitioner
respectfully requests that this Honorable Court grant this
petition for certiorari.

Respectfully submitted,

Rotanp W. Burris
Attorney General
State of Illinois

RosaLyn B. Kapitan
Solicitor General
State of Illinois

Joun A. Simon”

Assistant Attorney General
100 West Randolph Street
13th Floor

Chicago, Illinois 60601
(312) 814-3672

*Counsel of Record.

April 29, 1991

App. 1

UNITED STATES COURT OF APPEALS

For the Seventh Circuit
Chicago, Illinois 60604

January 29, 1991.

BEFORE
| Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. JOSEPH T. SNEED, Circuit Judge*

NATIONAL SOLID WASTES
MANAGEMENT ASSOCIATION,
an Illinois not-for

profit organization,

Appeal from
the United
States District
Court for the

ee Northern
Plaintiff-Appellant, District of
No. 89-3069 V. Iilinois,
BERNARD KILLIAN, Director —
IVISION.

of the Environmental Protection
Agency, an Illinois agency, in
his representative capacity and
NEIL F. HARTIGAN, Attorney
General of the State of Illinois,
in his representative capacity,

No. 88 C 10732

James B. Zagel,
Judge.

me eee eee ee ee”

Defendants-Appellees.
ORDER

On consideration of the petition for rehearing and
suggestion for rehearing en banc filed in the above-enti-
tled cause and the response thereto, no judge in active

* The Honorable joseph T. Sneed of the Ninth Circuit ts sitting
by designation.

App. 2

service has requested a vote thereon, and all of the judges
on the original panel have voted to deny a rehearing.
Accordingly,

IT IS ORDERED that the aforesaid petition for
rehearing be, and the same is hereby, DENIED.

App. 3

NATIONAL SOLID WASTES MANAGEMENT
ASSOCIATION, an Illinois not-for-profit cor-
poration, Plaintiff-Appellant,

v.

Bernard KILLIAN, Director of the Environ-
mental Protection Agency, an Illinois agency,
in his representative capacity and Neil F. Hart-
igan, Attorney General of the State of Illinois,
in his representative capacity, Defendants-
Appellees.

No. 89-3069.
United States Court of Appeals,
Seventh Circuit.

Argued May 14, 1990.
Decided Nov. 14, 1990.
Rehearing and Rehearing En Banc
Denied Jan. 29, 1991.

Before CUDAHY and EASTERBROOK, Circuit
Judges, and SNEED, Senior Circuit Judge.'

CUDAHY, Circuit Judge.

National Solid Wastes Management Association
(“NSWMA”) challenges the constitutionality of certain
Illinois laws providing for the training, testing and licens-
‘ing of hazardous waste site workers. According to
NSWM OSHA has recently published proposed revisions to the
final rule and invited comments. 55 Fed.Reg. 2,776 (proposed
Jan. 26, 1990). If accepted, a new section 1910.121(b)(2) would
require all states and territories to recognize OSHA-accredited
training programs. If this revised rule becomes effective,
NSWMA’s challenges to the Illinois licensing statutes may
become moot, at least insofar as they apply to planned opera-
tions (as opposed to emergency response operations).

App. 14

interpretative statements and responses to comments — in
which to express preemptive intent). We note that OSHA
has explicitly attempted to avoid broad preemptive effect
in promulgating the final rule here. In its “federalism”
discussion accompanying the final rule, OSHA explains
that it “has used its regulatory preemption of State law to
the minimum level necessary to achieve the objectives of
the OSH Act and section 126 of SARA.” 54 Fed.Reg. at
9315 (Mar. 6, 1989). Since the OSHA final rule denies
broad preemptive intent, we proceed to consider whether
the Illinois statutes are expressly preempted by section 18
of the OSH Act.

The langifage of section 18 of the OSH Act does not
indicate whether a state law or regulation that purports
to serve a dual purpose is preempted. The structure and
legislative history of section 18 does, however, demon-
strate that Congress hoped to encourage states to partici-
pate in worker health and safety regulation by submitting
their own state plans. If no OSHA standard exists, a state
is permitted by section 18(a) to enact its own - until
OSHA steps in the field. However, section 18 unques-
tionably preempts any state law or regulation whose sole
purpose and effect is to establish a standard pertaining to
worker health and safety where OSHA has already
promulgated such a standard and that state has not
obtained the Secretary of Labor’s approval for its own
plan. The original Senate version of what is now section
18 would have permitted states, without having to obtain
approval of a state plan, to impose during a transitional
period stricter requirements than those established by
OSHA. But that provision was eliminated from the final
draft of the bill. See H.Rep. No. 91-1765, 91st Cong., 2d

App. 15

Sess., reprinted in 1970 U.S. Code Cong. & Admin. News
5177, 5228, 5238. Despite the deletion of this provision,
however, and contrary to NSWMA’s argument, section 18
does not evidence a congressional intent to achieve uni-
formity in worker health and safety regulation: if unifor-
mity of standards were a principal goal of the Act, state
plans certainly would not be an ideal mechanism to
achieve that purpose. See Note, The Extent of OSHA Pre-
emption of State Hazard Reporting Requirements, 88
Colum.L.Rev. 630, 642-43 (1988); Note, Getting Away with
Murder: Federal OSHA. Preemption of State Criminal Pros-
ecutions for Industrial Accidents, 101 Harv.L.Rev. 535,
550-51 (1987). Thus, it seems clear from the language of
section 18 that a state may impose stricter worker health
and safety standards than those promulgated by OSHA,
but only after having obtained OSHA's approval of that
state’s plan.

While the legislative history regarding the preemp-
tive effect of section 18 is not entirely clear, OSHA has
explicitly stated its view that section 18 prohibits a state
from asserting jurisdiction over any occupational safety
and health issue with respect to which a federal standard
already exists, unless the state acts pursuant to a feder-
ally approved state plan. 29 C.F.R. § 1901.2 (1989). This

os

6 29 C.FR. section 1901.2 reads, in pertinent part:

Section 18(a) of the [OSH] Act is read as prevent-
ing any State agency or court from asserting jurisdic-
tion under State law over any occupational safety or

(Continued on following page)

App. 16

interpretation of section 18 is reflected in the OSHA final
rule at issue here. OSHA states in the “federalism” dis-
cussion accompanying the rule:

Those states which have elected to participate under
section 18 of the OSH Act would not be pre-
empted by this final regulation and would be
able to address special, local conditions within
the framework provided by this performance
oriented standard while ensuring that their

standards are at least as effective as the Federal
standard.

54 Fed. Reg. at 9316 (emphasis added). When a federal
statute “is silent or ambiguous with respect to the specific
issue, the question for the court is whether the agency’s
answer is based on a permissible construction of the
statute.” Chevron U.S.A. Inc. v. Natural Resources Defense
Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d
694 (1984). Although section 18’s express preemptive
effect appears to be unambiguous, we note that, in any
event, OSHA’s construction confirms the view that a state
must submit a state plan under sections 18(b) and (c) of
the OSH Act before it can exercise jurisdiction over a
federally regulated occupational safety and health matter.

(Continued from previous page)

health issue with respect to which a Federal standard
has been issued under section 6 of the Act... . [The
alternative provided by section 18(h) to exclusive
Federal jurisdiction] is temporary and may be con-
sidered a step towards the more permanent alterna-
tive to exclusive Federal jurisdiction provided by
sections 18(b) and (c) following submission and
approval of a [State] plan... .

App. 17

Further, this interpretation of section 18 has received
broad acceptance among federal and state courts. See
Associated Indus. of Mass. v. Snow, 898 F.2d 274, 278 (Ist
Cir.1990); Environmental Encapsulating Corp. v. City of New
York, 855 F.2d 48, 55 (2d Cir.1988); New Jersey Chamber of
Commerce v. Hughey, 774 F.2d 587, 592 (3d Cir.1985), appeal
after remand, 868 F.2d 621 (3d Cir.), cert. denied, ___ US.
__, 109 S.Ct. 3246, 106 L.Ed.2d 593 (1989); Farmworker
Justice Fund, Inc. v. Brock, 811 F.2d 613, 625-26, 640-41
(D.C. Cir.1987), opinion vacated on other grounds, 817 F.2d
890 (D.C.Cir.1987); Ohio Mfrs. Ass'n v. City of Akron, 801
F.2d 824, 828 (6th Cir.1986), appeal dismissed and cert.
denied, 484 U.S. 801, 108 S.Ct. 44, 98 L.Ed.2d 9 (1987);
Peonle v. Hegedus, 432 Mich. 598, 443 N.W.2d 127, 131
(1989); Thornock v. State, 229 Mont. 67, 745 P.2d 324, 328
(1987); Stanislawski v. Industrial Comm’‘n, 99 I11.2d 36, 75
Ill.Dec. 405, 406-07, 457 N.E.2d 399, 400-01 (1983); United
Air Lines v. Occupational Safety and Health Appeals Bd., 32
Cal.3d 762, 187 Cal.Rptr. 387, 393-94, 654 P.2d 157, 163-64
(1982); P & Z Co. v. District of Columbia, 408 A.2d 1249
(D.C.App.1979); State v. GTE Valeron Corp., 155 A.D.2d
166, 553 N.Y.S.2d 555, 557 (1990); Lepore v. National Tool
and Mfg. Co., 224 N.J.Super. 463, 540 A.2d 1296, 1306
(App.Div.1988), aff'd, 115 N.J. 226, 557 A.2d 1371 (1989)
(per curiam), cert. denied, __ U.S. __, 110 S.Ct. 366, 107
L.Ed.2d 353 (1989); Sabrine Consol., Inc. v. State, 756
S.W.2d 865, 868 (Tex.Crim.App.1988). We have discovered
no case contradicting the view that section 18 expressly
prohibits states without federally approved state plans
from exercising jurisdiction over an occupational health
and safety matter as to which OSHA has already duly
promulgated a federal standard.

App. 18

The question we face in the present case, of course, is
not whether Illinois may promulgate its own health and
safety standards for hazardous waste workers in the
absence of a federally-approved state plan. Rather, Illi-
nois asserts that its licensing laws serve a dual purpose:
protection of workers and protection of the public. The
problem is that many (if not most) of the provisions of the
Illinois statutes address both worker health and public
health simultaneously and through direct regulation of
hazardous waste workers. It is impossible in reviewing
some of the statutes’ provisions to disengage the public
heaith interest from the worker health interest. We must
decide, therefore, whether the mere assertion of a concur-
rent public health purpose can save Illinois’s regulation
of hazardous waste workers from preemption.” We con-
clude that it cannot.

It would defeat the purpose of section 18 if a state
could enact measures stricter than OSHA’s and largely
accomplished through regulation of worker health and
safety simply by asserting a non-occupational purpose
for the legislation. Such unauthorized state regulation in
this case could result in duplication and unwarranted

? NSWMA repeatedly stresses OSHA's recognition that, in
the case of hazardous waste cleanup sites, the work environ-
ment is coterminous with the general environment. We do not
understand this statement by OSHA to imply that OSHA
intended its final rule to wholly displace any environmental
regulation by the states of hazardous waste sites. Moreover,
OSHA is not empowered to promulgate environmental regula-
tions that have no discernible bearing on worker health and
safety, and we will not assume, based only on NSWMA‘s
allegation, that OSHA has exceeded its statutory delegation of
power

App. 19

additional costs to workers and employers. Under the
Illinois licensing laws, hazardous waste workers whose
occupation may take them to Illinois must, among other
things, undergo an IEPA or EPA-approved training
course for 40 hours (in addition to an OSHA-approved
course), pass an IEPA-prescribed written test and, in the
case of crane and hoist operators, demonstrate that they
have worked with such equipment for at least 4000 hours
(40 hours per week for two years). Some of these provi-
sions might well duplicate (or even conflict with) OSHA’s
training requirements. Section 18 is designed to avoid
subjecting workers and employers to duplicative regula-
tion, while allowing states the flexibility to tailor worker
health and safety programs to their own needs.

When an OSHA standard exists, and the state has not
submitted a section 18 plan, we undertake a two-step
inquiry. First, we determine whether the challenged state
law or regulation constitutes, in a direct, clear and sub-
stantial way, regulation of worker health and safety. A
key factor in resolving this question is whether the state
law affects employer-employee obligations with respect
to health and safety matters in the workplace. Second, we
attempt to extricate from the state law or regulation and
invalidate those provisions that relate to worker health
and safety in a direct, clear and substantial way. In this
connection, we must strike any provision with a dual
purpose and effect from which the worker health and
safety aspect cannot be removed.* Any other approach

8 Whether provisions of a state act or regulation are sever-
able is, of course, a question of state law.

App. 20

would threaten to undermine Congress’s intent that states
wishing to establish more stringent standards than OSHA's -
for whatever reason — submit plans to the Secretary of Labor
for approval before going forward with their schemes.

Our test for OSHA preemption of a state law or
regulation corresponds closely to the test recently
announced by the Supreme Court for application to state
laws allegedly impacting upon the federally-reserved
field of nuclear health and safety. English v. General Elec-
tric Co., __ U.S. __, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990).
The Court referred in English to its earlier decision in
Pacific Gas & Elec. Co. v. State Energy Resources Conserva-
tion and Dev. Comm'n, 461 U.S. 190, 211-12, 103 S.Ct. 1713,
1726, 75 L.Ed.2d 752 (1983), in which the Court held that
a state law that did not affect radiological health and
safety was not preempted by the Atomic Energy Act. The
Pacific Gas holding corresponds to step one of our test for
OSHA preemption. In English, the Court also noted that
part of the inquiry into the validity of the state law
focuses on the purpose of the state law, and another part
of the inquiry examines the state law’s actual effect on
nuclear safety. 110 S.Ct. at 2278. The English test for
validity of a state law arguably affecting nuclear health
and safety issues examines whether the state law has a
“direct and substantial effect on the decisions made by
those who build or operate nuclear facilities concerning
radiological safety levels.” Id. (emphasis added). The
effect must, therefore, be more than tangential or inciden-
tal, as we have stated with respect to state laws chal-
lenged under section 18 of the OSH Act.’

% Of course, as in the nuclear health and safety context, see
English, 110 S.Ct. 2270 (state law action for intentional

(Continued on following page)

App. 21

To date, three other circuits have grappled with the
question whether the assertion of a proper state purpose

(Continued from previous page)

infliction of emotional distress was not preempted by Atomic
Energy Act); Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104
S.Ct. 615, 78 L.Ed.2d 443 (1984) (Atomic Energy Act did not
preempt application of state law punitive damage rule to state
law tort action), a state criminal statute or tort liability rule
would not be preempted. Such state laws are not “standards”
within the meaning of 29 U.S.C. section 652(8). Moreover, the
OSH Act contains a broad savings clause, which provides:

Nothing in this chapter shall be construed to
supersede or in any manner affect any workmen’s
compensation law or to enlarge or diminish or affect
in any other manner the common law or statutory
rights, duties or liabilities of employers and
employees under any law with respect to injuries,
diseases, or death of employees arising out of, or in
the course of, employment.

29 U.S.C. § 653(b)(4).

To date, all but one court that have [sic] considered the
question of section 18’s preemptive effect upon state criminal
and tort rules has concluded that section 18 does not preempt
such laws. Paige v. Henry ]. Kaiser Co., 826 F.2d 857 (9th Cir.
1987) (California had federally approved state plan, which did
not preempt wrongful discharge claim), cert. denied, 486 U.S.
1054, 108 S.Ct. 2819, 100 L.Ed.2d 921 (1988); McElroy v. SOS
Int'l, Inc., 730 F.Supp. 803 (N.D. 111.1989) (OSH Act does not
preempt state law remedy for retaliatory discharge); Hegedus,
443 N.W.2d 127 (OSH Act does not preempt enforcement of
state criminal statutes); People v. Chicago Magnet Wire Corp., 126
I11.2d 356, 128 Ill.Dec. 517, 534 N.E.2d 962 (1989) (OSH Act
does not preclude enforcement of state criminal law as to
conduct regulated by OSHA standard), cert. denied sub nom.
Asta v. Illinois, _§.- U.S. __, 110 S.Ct. 52, 107 L.Ed.2d 21 (1989);
P & Z Co. v. District of Columbia, 408 A.2d 1249 (D.C.App. 1979)

(Continued on following page)

App. 22

will prevent a state law or regulation pertaining to
worker health and safety from being preempted by an
OSHA standard. Associated Indus. of Mass. v. Snow, 898
F.2d 274 (1st Cir.1990); Environmental Encapsulating Corp.
v. City of New York, 855 F.2d 48 (2d Cir.1988); New Jersey
State Chamber of Commerce v. Hughey, 774 F.2d 587 (3d
Cir.1985) (“Hughey I”), appeal after remand, 868 F.2d 621
(3d Cir.) (“Hughey II”), cert. denied, __ U.S. ___, 109 S.Ct.
3246, 106 L.Ed.2d 593 (1989); Manufacturers Ass‘n of Tri-
County v. Knepper, 801 F.2d 130 (3d Cir.1986), cert. denied,
484 US. 815, 108 S.Ct. 66, 98 L.Ed.2d 30 (1987). The First
and Second Circuits have upheld state regulation of the
workplace when such regulation evidences a substantial

(Continued from previous page)

(criminal prosecution for employer's failure to report work-
place injuries was not preempted by OSHA standard); People v.
Pymm, 151 A.D.2d 133, 546 N.Y.S.2d 871 (1989) (OSHA stan-
dard does not bar criminal prosecutions for violations of state
law), appeal granted, 75 N.Y.2d 774, 551 N.Y.S.2d 916, 551
N.E.2d 117 (1989); Lepore, 540 A.2d 1296 (state law retaliatory
discharge action is not preempted by OSHA standard); State ex
rel. Cornellier v. Black, 144 Wis.2d 745, 425 N.W.2d 21 (App.)
(homicide prosecution not barred by OSHA standard), review
denied, 145 Wis.2d 916, 430 N.W.2d 351 (1988). See generally
Note, Getting Away with Murder: Federal OSHA Preemption of
State Criminal Prosecutions for Industrial Accidents, 101
Harv.L.Rev. 535 (1987).

The only case we have located that does interpret section
18 as barring state law-based criminal actions is Sabine Consoli-
dated, Inc. v. State, 756 S.W.2d 865 (Tex.Crim.App.1988). That
case, however, relied heavily on the rationale of the Illinois
appellate decision in Chicago Magnet, which has been reversed
by the lilinois Supreme Court. Thus, it is questionable whether
the Texas courts would continue to follow Sabine in light of the
increasing body of case law suggesting that Sabine is incorrect.

App. 23

and legitimate state purpose or effect separate from (but
in addition to) worker health and safety. The Third Cir-
cuit’s position is somewhat more complex.

The Third Circuit was the first federal court of
appeals to deal with the issue of section 18 preemption of
dual purpose state laws. In Hughey I, Hughey II, and
Knepper, the court considered the validity of state “right
to know” laws in light of OSHA’s Hazard Communica-
tion standard, 29 C.F.R. § 1910.1200. That standard
expressly preempts any state or local law pertaining to
the subject of hazard communications to employees.!°
Right to know laws are generally designed to disseminate
information to public officials and citizens (and, in some
cases, employees) about the types of hazardous materials
present in the community. The Third Circuit in Hughey |
analyzed each aspect of the New Jersey right to know law
and declared preempted those provisions which evi-
denced a “primary purpose” to protect worker health and
safety, as opposed to public health and safety.

The New Jersey law required employers, among
other things, to complete surveys and compile lists of
“environmental hazards” and “workplace hazards.” The
Third Circuit held that the OSHA standard preempted the
state provision to the extent it required a listing of sub-
stances deemed solely workplace hazards. Thus, New
Jersey could require that employers report substances
that present a hazard both to the workplace and to the

© At the time Hughey I and Knepper were decided, the
preemption applied only to regulation of the manufacturing
sector. OSHA has now extended the standard and the preemp-
tion to all sectors.

App. 24

general environment. Moreover, the court upheld New
Jersey’s labelling requirement for all substances on the
environmental hazards list, even though some of those
substances were also subject to the OSHA standard. The
listing and labelling requirements upheld by the Third
Circuit not only had an identifiable purpose and probable
effect of dispensing information to workers and non-
workers alike about the environmental hazards of certain
substances but were also derived from different sources
than the workplace hazard listing and labelling provi-
sions that the court struck.!! Thus, while some substances
were subject to both OSHA and New Jersey regulation,
the nature of the state’s regulation was quite different
from the nature of OSHA's. Further, the mere compilation
of lists of hazardous substances that might be discharged
into the environment does not amount to regulation of
the workplace in any meaningful sense: workers would
benefit from the environmental hazards list not through
their status as workers; rather, they would benefit in the
same way and to the same degree as al! members of the
general public. Consequently, items upheld in Hughey |
under the “primary purpose” test would also survive
preemption under our analysis. !?

1" The New Jersey environmental hazard list was to be
compiled from employer reports, whereas OSHA’s regulation
provided for identification of substances by the original manu-
facturer or importer of each substance. See Hughey I, 774 F.2d at
594.

12 In Hughey Il, a different panel of the Third Circuit
reviewed the decision of the district court to which the Hughey
! panel had remanded the case for additional proceedings. The

(Continued on following page)

App. 25

In Knepper, the Third Circuit applied its “primary
purpose” test to Pennsylvania’s right-to-know law, which
differed in some significant respects from the New Jersey
law addressed in Hughey. All suppliers were required by
the Pennsylvania law to label the hazardous contents of
containers shipped to anyone, whether an employer or
not. The content of the labelling requirements was com-
patible with OSHA’s in ail respects, so the court con-
cluded that the supplier labelling requirement was
neither expressly nor implicitly preempted by the OSHA
standard. However, the court struck an employer labell-
ing requirement, since it exempted any employer not
having any present employees. The court inferred from
the exemption that the employer labelling requirement
really had as its chief purpose the communication of
nazards to employees. The Pennsylvania law also
required employers to list all hazardous substances that
had been present in the workplace during the previous
year including all substances appearing on the OSHA list.
But the siate law required inclusion of substances identi-
fied by ten cther sources as well and directed that the
final list be supplied on request to local police, fire and
other emergency response agencies. Further, any member
of the public could obtain access to the list from the
Pennsylvania Department of Labor and Industry. The
Third Circuit upheld this provision because it relied on a

(Continued from previous page)

Hughey II panel felt itself bound by the “primary purpose”
methodology adopted by the Hughey | panel and reaffirmed
that panel’s decision on the effect of section 18 upon the New
Jersey act.

App. 26

broader base of information than OSHA’s list and evi-
denced a different purpose than workplace safety. The
court did, however, strike a provision of the state law
requiring every employer to post a list of all hazardous
substances found in its workplace and all environmental
hazards discharged from its workplace. The court inter-
preted this section as requiring notification to employees
of workplace hazards, which was preempted by the
OSHA standard. 801 F.2d at 138. In any event, any worker
could obtain the entire list of substances from the state
Department of Industry and Labor in her capacity as a
citizen.'%

Our analysis would not change the results in Knepper
with respect to the labelling and listing of environmental
hazards.'4 A container filled with an environmentally

'3 It is not clear why the Knepper court struck the posting
requirement insofar as it applied to employee notification of
environmental hazards discharged from the workplace. This
holding seems to conflict with the court’s determination that
Pennsylvania could require employers to educate employees
about environmental hazards (but not about workplace haz-
ards, since the OSHA standard already provided for that).
Under our approach, both the posting and the training require-
ments would be upheld insofar as they applied to informing
employees about environmental hazards.

14 The Third Circuit also upheld the Pennsylvania law’s
requirement that suppliers of hazardous substances provide all
purchasers with Material Safety Data Sheets (“MSDS”).
OSHA’s standard contained a nearly identical requirement.
Like the environmental hazards lists, however, the Pennsylva-
nia MSDS provision applied to more substances than OSHA
listed and was directed at those who supply the substances.
801 F.2d at 140-41. The Third Circuit declined to find the

(Continued on following page)

App. 27

hazardous subsiance may pass from one hand to another,
ultimately finding its way to a landfill or other dump site.
The state has a strong interest - one wholly independent
of workplace safety regulation - in ensuring that those
who handle the container know what is in it so that it is
not disposed of carelessly. Likewise, compiling lists of
environmentally hazardous substances present in the
community and giving fire-fighters and other officials, as
well as citizens, access to these lists is not workplace
regulation. That some items might appear on both Penn-
sylvania’s and OSHA’s lists is not determinative. Nor is it
relevant that the source of the items might in some cases
be employers. The question is whether the state regula-
tion affects employer-employee obligations more than
incidentally with respect to a worker health and safety
issue. As with the New Jersey law, any additional benefit
reaped by workers from the labelling and listing of envi-
ronmental hazards would be incidental to the benefit
bestowed upon the public at large by the requirements.

(Continued from previous page)

Pennsylvania MSDS provision preempted as it applied to sup-
pliers, but the court did strike the state law’s requirements that
employers disclose to employees the contents of each MSDS.
The court made no distinction between those MSDS’s for envi-
ronmental hazards and those for solely workplace hazards.
Rather, the court focused on the status of the parties giving
and receiving the communications, so as to avoid impinging
upon OSHA’s province. The law was struck only to the extent
it required a hazard communication between employers and
their employees. Again, though, we think the state’s law could
have been upheld as it aprlied to communication of environ-
mental hazards to workers.

App. 28

The Third Circuit also examined in Knepper the Penn-
sylvania law’s requirements with regard to employer
educational programs and state outreach programs. The
Third Circuit determined that Pennsylvania could require
employers to conduct education programs for their
employees concerning environmental hazards (but not
workplace hazards). 801 F.2d at 142. Similarly, the court
upheld a provision directing the Department of Industry
and Labor to develop outreach programs to inform the
public and employees about environmentally hazardous
substances, but the court struck the provision to the
extent it applied to communication of information about
workplace hazards to employees. Id. In analyzing these
two provisions, the Third Circuit was able to extricate the
proper state interest in environmental regulation from
regulation of worker health and safety. Thus, these provi-
sions, as edited by the Third Circuit, would also survive
under our approach.

The difficulty we experience with the Third Circuit's
“primary purpose” test - although we would reach vir-
tually the same results applying our own analysis as
those reached by the Third Circuit in Hughey and Knepper
- is epitomized by Illinois’s 4000-hour operating experi-
ence requirement. In neither Hughey nor Knepper did the
Third Circuit confront a true “dual purpose” problem: the
labelling and listing requirements were not truly work-
place regulations, although they did have some effect on
worker health as one aspect of general public health. The
offending requirements of the other provisions addressed
by the Third Circuit which did directly, clearly and sub-
stantially regulate worker health and safety were extrica-
ble from the requirements designed to fulfill a proper

App. 29

state goal. But Illinois’s 4000-hour rule directly, clearly
and substantially implicates worker health and safety as
well as public health and safety, and it is impossible to
modify the provision so as to delete matter serving the
impermissible worker health and safety goal without also
eliminating matter serving the permissible public health
and safety goal.'5 Under the Third Circuit’s test, the 4000-
hour requirement might survive, since it is directed both
to worker health and safety and to “broader” concerns.
We think such a result would clearly undermine the
purpose of section 18.16

'S Evidence submitted to the district court on the public
health interest behind the 4000-hour rule was inconclusive: no
expert was able to identify the point at which the “learning
curve” begins to plateau, indicating that additional operating
experience will yield only marginal or negligible increases in
worker health and safety or public health and safety. Moreover,
Illinois has not set out to explain why a worker whose experi-
ence suggests she is sufficiently competent to satisfy worker
health and safety concerns would not also be sufficiently com-
pétent to satisfy public health and safety concerns.

‘6 A New Jersey district court has interpreted the Third
Circuit's Hughey and Knepper opinions in a manner that makes
those decisions wholly compatible with our approach in the
present case. Analyzing a preemption challenge to New Jer-
sey’s Asbestos Control and Licensing Act, Judge Debevoise -
the same district judge who presided over the Hughey litigation
- recognized the difficulty of applying the primary purpose
test to a true dual purpose state regulation. New Jersey Chamber
of Commerce v. New Jersey, 653 F.Supp. 1453, 1465 (D.N.J.1987).
In this context, Judge Debevoise concluded that “Hughey [I]
and Knepper must be read to hold that unless the state provi-
sions are directed specifically towards non-occupational safety
concerns, they are expressly preempted, since OSHA has cho-
sen to occupy this field. . . . The allegation of an additional

(Continued on following page)

App. 30

Nor do the Second and First Circuit’s recent deci-
sions give us satisfactory assistance in resolving this
problem. The Second Circuit disavowed the “primary
purpose” test, since it appeared too difficult in many
cases to determine what is a “primary” purpose and what
a secondary or tertiary purpose. Instead, the Second Cir-
cuit reviewed the challenged legislation - a New York
City ordinance regulating training in asbestos handling -
for a “legitimate and substantial purpose apart from the
promotion of occupational health and safety.” Environ-
mental Encapsulating, 855 F.2d at 57. Applying this test,
the Second Circuit excised two provisions of the ordi-
nance that evidenced only a worker health and safety
purpose. But the court left intact the remainder of the
ordinance, much of which covered items already
addressed in OSHA's standard on the same topic (e.g.,
personal hygiene, personal protective equipment, prepa-
ration of the work area). The city’s training program was
more rigorous than OSHA’s, and, unlike OSHA, the city
required testing and certification of all asbestos handlers.
Reviewing a preemption challenge to Massachusetts’s
asbestos handling training and certification regulations,
the First Circuit rejected both the Second Circuit and the
Third Circuit approaches because those courts’ tests
require inquiry into legislative history - a highly specula-
tive business. Instead, the First Circuit examined the effect
of the challenged statute. Because the court found that
the state’s training and certification requirements had the

(Continued from previous page)

purpose for [the state’s] scheme does not render it immune
from preemption.” Id. at 1466.

App. 31

effect of protecting public health, it concluded that the
OSHA standard did not preempt the state act.'”

The district court in this case followed the Second
Circuit’s approach. But in our view, both the Second
Circuit’s and the First Circuit’s analyses contain serious
flaws. As the First Circuit persuasively observed, the
Second Circuit - like the Third - relies too heavily on an
assessment of the legislature’s subjective purpose. Merely
asserting a desire to protect public health and safety
cannot save a provision that infringes upon OSHA’s prov-
ince. At the same time, the likelihood that a particular
provision will have a beneficial effect upon public health
and safety is on no better ground than a provision sup-
ported by a proper state purpose. Section 18 is clear:
where OSHA has properly established a standard, a state
may not create a standard of its own on the same topic
unless the state acts pursuant to a plan approved by the
Secretary of Labor. Illinois, if it wishes to enact laws or to

'7 It is not entirely clear whether the First Circuit based its
decision solely on the question whether the state act had a
public health effect: the court observed that the Massachusetts
training curriculum was modelled after EPA’s Asbestos Hazard
Emergency Response Act (“AHERA”), 15 U.S.C. §§ 2641 et seq.,
which requires states to implement such training and certifica-
tion programs in conjunction with EPA. Id. at § 2646. The court
noted that EPA’s program was directed at the protection of
public health and, as a section of the Toxic Substances Control
Act, 15 U.S.C. § 2601 et seg., was expressly defined not to be an
occupational health and safety measure, id. at § 2608(c). See
Associated Industries, 898 F.2d at 280 & n. 6. Thus, the remainder
of the First Circuit’s opinion in Associated Industries may be
dicta.

App. 32

impose regulations that it believes would more ade-
quately account for the state’s environmental and public
health concerns, may submit to OSHA a state plan pur-
suant to sections 18(b) and (c) and thereby displace the
application of OSHA’s final rule to workers within Illi-
nois. But the state cannot regulate worker health and
safety under the guise of environmental regulation.

As we have already intimated, we disagree with the
district court’s conclusion that Illinois’s 4000-hour operat-
ing experience requirement may survive preemption sim-
ply because the rule may also enhance public health and
safety. There is clearly no way to separate the worker
health and safety aspect of the requirement from the
public health and safety aspect. Thus, the entire require-
ment must fall.

Many of the Illinois statutes’ provisions lack concrete
form at this time because the implementing regulations
have not yet reached final form. For example, the Illinois
statute does not specify the contents of the required train-
ing program or the written test. We therefore vacate the
judgment and remand to the district court for application
to the Illinois licensing statutes of the principles we have
described.'* Because we base our decision on section 18,

1® If on remand the district court determines that some but
not all of the licensing statutes’ provisions are preempted by
the OSHA final rule, the district court will, of course, be
obliged to determine whether Illinois law permits the sever-
ance of the offending provisions without requiring that the
statutes be stricken in their entirety. In this connection, we note
that Illinois does have a general severability provision, which
instructs that a holding that the invalidation of one provision

(Continued on following page)

App. 33

we do not address NSWMA’s alternative contentions that

the Illinois acts actually conflict with the OSHA final rule
and that OSHA has occupied the field.

Il. NSWMA’s Commerce Crause CHALLENGE

Since we have determined that the 4000-hour rule is
preempted, we do not address NSWMA’s appeal from the
district court’s dismissal of NSWMA’s commerce clause
claim for lack of ripeness. Similarly, since the district
court struck the “within Illinois” requirement for training
and testing on preemption grounds, and since the Illinois
defendants do not appeal that decision, we leave the
district court’s judgment on that issue undisturbed.

We are, however, concerned about the potential bur-
den on interstate commerce suggested by the exemption
of certain classes of employees from the requirements of
the Illinois statutes. It is not clear why Illinois would
choose to exempt agricultural, mining and railroad
workers from the statutes’ training and testing provi-
sions; it is even less clear why the employees of a manu-
facturing facility that is undergoing an environmental
cleanup pursuant to state or federal law should be
exempt from satisfying Illinois’s requirements, so long as
they have completed OSHA’s required training. In this
connection, we note that such exemptions may suggest an

(Continued from previous page)

of an act “does nct affect other provisions or applications of
the [a]ct which can be given effect without the invalid applica-
tion or provision. ...” Ill.Rev.Stat. ch. 1, 91032.

App. 34

intent by a state to discriminate against interstate com-
merce in favor of local interests. In Raymond Motor Trans-
port, Inc. v. Rice, 434 U.S. 429, 446-47, 98 S.Ct. 787, 796-97,
54 L.Ed.2d 664 (1978), the Supreme Court observed that
statutory exceptions which on their face discriminate in
favor of local industry or which, although facially neu-
tral, primarily benefit local industry “weaken the pre-
sumption in favor of the validity of the general limit
[prescribed by the statute], because they undermine the
assumption that the State’s own political processes will
act as a check on local regulations that unduly burden
interstate commerce.” On remand, therefore - assuming
that some portions of the Illinois statutes survive pre-
emption analysis - the district court should inquire into
the purpose and likely effect of these exemptions and
determine whether they unduly burden interstate com-
merce.

IV. CONCLUSION

The district court’s judgment is Vacatrep and
Rimanpip for further proceedings consistent with this
opinion.

EASTERBROOK, Circuit Judge,
dubitante.

The court’s opinion establishes a simple approach to
preemption under § 18 of OSHA. Although phrased as
two steps, it boils down to this: Any rule that affects
workers’ health and safety in a direct, clear, and substan-
tial way is preempted, even if that rule serves a purpose
other than, or in addition to, workers’ health and safety.
This is superior to the standards created by the second

App. 35

and third circuits because it dispenses with questions
about legislative intent (the “intent” of a collective body
is a construct, not a fact) and superior to the standard of
the first circuit, which does not inquire into intent,
because it avoids weighing the importance or substan-
tiality of effects, a legislative task.

Still, | am not so sure as my colleagues that § 18
preempts state rules. The court says that § 18 “unques-
tionably preempts” state law (918 F.2d at 677), is “clear”
(id. at 677, 684), is “express” and “unambiguous” (id. at
678), and “expressly prohibits” states from regulating
without submitting their plans to the federal government
(id. at 678). All these “clearly”s demonstrate more certi-
tude than § 18 warrants.

Section 18(a) says that “[nJothing in this chapter shall
prevent any State . . . from asserting jurisdiction over any
occupational safety or health issue with respect to which
no [federal] standard is in effect”. This does not continue
by saying that if there is a federal standard, then state law
is preempted. Section 18(b) continues:

Any State which, at any time, desires to
assume responsibility for development and
enforcement therein of occupational safety and
health standards relating to any occupational
safety or health issue with respect to which a
Federal standard has been promulgated under
section 655 of this title shall submit a State plan

for the development of such standards and their
enforcement.

This sounds like an option for the states, not like a
constraint. A state may take over the subject - that is,
oust OSHA’s rule. Before doing this, however, it must
secure federal approval. Section 18(b) does not say that if

App. 36

a state wants to add to the body of rules, while leaving
federal standards (and enforcement) unaffected, it needs
federal permission.

The court treats § 18(b) as if it read:

No State may, at any time, . . . assume
responsibility for development and enforcement
therein of occupationa! safety and health stan-
dards relating to any occupational safety or
health issue with respect to which a Federal
standard has been promulgated under section
655 of this title unless it has submitted a State plan
for the development of such standards and their
enforcement.

The strongest support for this reading, although one the
court does not give directly, is a negative implication.
From the listing in § 18(a) and 18(b) of two ways the state
may apply its law, coupled with the preservation in
§ 4(b)(4), 29 U.S.C. § 653(b)(4), of workers’ compensation
laws, the court infers that there are no others. It is an
application of the maxim expressio unius est exclusio
alterius. Although this maxim is misleading more often
than it is helpful - for it does not say why a court ought
infer that every list is exclusive - the idea has some
power here. Federal regulations of health and safety are
supposed to do enough to protect those interests. If states
then do more, they are doing too much: they are achiev-
ing increasingly small benefits at increasingly high cost,
into the range of negative returns. If states are not doing
more, but are simply doing something different, then
there is a substantial risk of the two sovereigns getting in
each other’s way, of too many cooks spoiling the broth.
So either the “more” or the “different” variation seems to
imply preemption. Congress recognized this possibility

App. 37

and sought to avert preemption, but limited its salvation
to three classes of cases. It follows that Illinois is trying to
use a route closed to the states.

Attractive as this conclusion is, the argument is over-
stated. It paradoxically treats preservation of state law as
interdiction, for many federal laws lack anti-preemption
clauses yet state laws are allowed to coexist with federal
regulation. To treat anti-preemption clauses as if they
implicitly preempt all they do not save may invert the
proper result.

Federal regulatory systems do not invariably (or even
frequently) imply that states lack authority to regulate on
their own. English v. General Electric Co., __ U.S. __, 110
S.Ct. 2270, 110 L.Ed.2d 65 (1990) (nuclear safety); Califor-
nia v. ARC America Corp., 490 U.S. 93, 109 S.Ct. 1661, 104
L.Ed.2d 86 (1989) (antitrust); Hillsborough County v. Auto-
mated Medica! Laboratories, Inc., 471 U.S. 707, 105 S.Ct.
2371, 85 L.Ed.2d 714 (1985) (medica! safety); Amanda
Acquisition Corp. v. Universal Foods Corp., 877 F.2d 496,
502-05 (7th Cir. 1989) (tender offers); Air Line Pilots Ass'n
v. UAL Corp., 874 F.2d 439, 446-47 (7th Cir. 1989) (interac-
tion of labor and corporate law). In each case one could
have said that the federal rules established the “right”
amount of regulation, and that to do more or to do it
differently necessarily contradicted the federal judgment.
In each case the court rejected the premise of the argu-
ment — that the limited extent of the existing federal rule
necessarily implies that the federal government has
determined that something more, or something different,
is a bad thing. To the contrary, federal courts rarely infer
preemption of “state law in areas traditionally regulated
by the States”, ARC America Corp. 109 S.Ct, at 1665, a

App. 38

category that includes occupational licensing. States have
been regulating entry into occupations since colonial
days.

The two arguments the court does give (beside the
drumbeat that § 18 is “clear”) are weaker than the argu-
ment from negative implication. One is that every other
court that has considered this question has understood
§ 18 to preempt state law. This-is not a reason why § 18
does preempt state law. A desire to preserve harmony
among the inferior federal courts means that we need a
good reason to act differently; yet we are rejecting every
other court’s approach to preemption under OSHA and
creating a novel test, so uniformity is not dispositive
today. The other, and final, reason is that the conference
committee eliminated a provision that would have per-
mitted states to create rules stricter than the Department
of Labor’s (918 F.2d at 677). The details of this episode
show that it will not bear the weight my colleagues
evidently assign to it.

What is now § 18(h) of OSHA is a transition provi-
sion, allowing states to use their own rules without hin-
drance during the first two years of OSHA’s existence.
The Senate’s version of the transition rule, then § 17(h),
read this way:

Pending approval of a plan submitted by a
State under subsection (b) of this section, the
Secretary may enter into an agreement with
such State under which the State will be permit-
ted to continue to enforce one or more occupa-
tional health and safety standards in effect in
such State which are not in conflict with Federal
occupational health and safety standards pro-
mulgated under this Act until final action is

App. 39

taken by the Secretary with respect to the plan
submitted by the State, or two years from the
date of enactment of this Act, whichever is ear-
lier. Except as otherwise provided in this sec-
tion, any State occupational health and safety
standard which provides for more stringent
health and safety regulations than do the Fed-
eral standards promulgated under this Act shall
not thereby be considered to be in conflict with
such Federal standards.

116 Cong.Rec. 37637 (Nov. 17, 1970). The first sentence
limited state plans to those “not in conflict with” federal
rules; the second sentence said that more stringent rules
do not conflict. The upshot was that states could use their
own standards pending approval by the Secretary only if
they were “more stringent” than the federal rules.

As it came out of the conference committee, § 18(h)
read so:

The Secretary may enter into an agreement
with a State under which the State will be per-
mitted to continue to enforce one or more occu-
pational health and safety standards in effect in
such State until final action is taken by the Sec-
retary with respect to a plan submitted by a
State under subsection (b) of this section, or two
years from December 29, 1970, whichever is ear-
lier.

29 U.S.C. § 667(h). This means that the state may use its
own rules during the transitional period, even if they are
not as stringent as the federal rules.

Restored to its context, however, the deletion of the
Senate’s language does not bear on our problem. The
Senate wanted to limit the automatic application of state
rules during the transition period to those more stringent

App. 40

than the federal rules; Congress as a whole allowed even
less stringent state rules to govern during the two-year
transition, provided the Secretary approved. Section
18(c), dealing with final approval of plans, reinforces this.
Final state plans may differ from federal ones, omitting
portions of the federal rules, so long as they are on
balance as “effective”, § 18(c)(2). Thus the deletion of the
Senate language on transitions does not imply that state
rules adding to permanent federal rules are preempted.

What about the other side? What may be said for the
possibility that Illinois is free to add to federal require-
ments?

App. 41

standards that the Secretary promulgated
preempt state law under § 18(b), many tradi-
tional areas of state regulation vanish.

Legislative history treats § 18(b) as a device
for states to replace federal rules, not as a
ban on state rules supplementing federal
ones. For example, the Senate report
describes § 18(b) as a provision that “when-
ever a State wishes to assume responsibility
for developing or enforcing standards in an
area where standards have been promulgated
under this act, the State may do so under a
State plan approved by the Secretary of
Labor. . . . [I]ndustries or hazards not cov-

*

Preventing state augmentation of federal
rules is not logically essentia! to the success
of the federal project. Conflicting state rules
that hinder accomplishment of the federal
objectives are preempted. We need not con-
demn all in order to avert conflict.

Overlapping state and federal jurisdiction
is the norm, so silent or ambiguous laws
ordinarily are understood to allow state regu-
lation - especially when the state deploys
“traditional” regulation, such as occupational
licensing.

Overlapping state and federal regulation of
safety in the workplace, in particular, is the
norm. State workers’ compensation laws
require employers to pay money on account
of accidents caused by hazards covered by
OSHA. State structural work acts regulate the
construction of scaffolds in detail, and pre-
scribe remedies, although OSHA covers
much of the same ground. The “general duty
clause” of the Secretary’s regulations says, in
essence, “create no needless hazards.” If this
regulation and the many other consensus

ered by the plan will continue to be under
Federal jurisdiction.” S.Rep.No. 91-1282, 91st
Cong., 2d Sess. 18 (1970). Nothing in any of
the reports describes § 18 as a provision pre-
empting state law.

My colleagues reply to the third of these by concluding
that rules established by tort and criminal law cannot be
“standards” for purposes of OSHA, pointing to § 4(b)(4)
and collecting the many cases holding that OSHA does
not preempt state tort or criminal law, 918 F.2d at 679-80
& n. 9. The reply would be more comforting had not
other federal courts concluded that rules of tort law are
“standards” for purposes of federal auto safety law, so
that states may not conclude that cars lacking passive
restraints are tortiously designed, despite a savings
clause, 15 U.S.C. § 1397(c), more powerful than § 4(b)(4)
of OSHA. Wood v. General Motors Corp., 865 F.2d 395 (ist

Cir. 1988); Taylor v. General Motors Corp., 875 F.2d 816 ©

(11th Cir. 1989); Pokorny v. Ford Motor Co., 902 F.2d 1f6.
(3d Cir. 1990). If tort rules are auto safety “standards” -

App. 42

on the theory that damages may be as potent as adminis-
trative rules in inducing firms to alter their behavior -
why can’t tort rules be employment safety “standards”?
If the airbag cases are right, the cases collected in the
court’s footnote 9 are problematic.

I cannot join an opinion that shortstops the inquiry
by calling § 18 “clear” or by relying on the deletion of the
Senate’s proposed transition rule. I refrain from dissent-
ing only because I find the arguments closely balanced.
The collective judgment of many other courts finding a
negative implication in the combination of § 4(b)(4) and
§ 18 leads me to hesitate. On one issue, though, | am
persuaded: If.§ 18 has a negative implication, then pre-
emption depends on the effects of the state law rather
than the intent or primary purpose of the state law-
makers.

Application of this test is not so straightforward as
the court implies, however. The court treats the 4,000-
hour rule as one that “constitutes, in a direct, clear and
substantial way regulation of worker health and safety.”
918 F.2d at 679. Yet the plaintiff trade association insists
that the law does not promote occupational safety, that it
is nothing but interest-group legislation designed to
reduce the number of licensed heavy equipment opera-
tors and thus drive up their wages. See Jeffrey M. Perloff,
The Impact of Licensing Laws on Wage Changes in the Con-
struction Industry, 23 J.L. & Econ. 409 (1980). See also Ann.
P. Bartel & Lacy Glen Thomas, Predation through Regula-
tion: The Wage and Profit Effects of the Occupational Safety
and Health Administration and the Environmental Protection
Agency, 30 J.L. & Econ. 239 (1987); Morris M. Kleiner,
Robert S. Gay & Karen Green, Barriers to Labor Migration:

App. 43

The Case of Occupational Licensing, 21 Industrial Relations
383 (1982); Alex Maurizi, The Impact of Regulation on Qual-
ity: The Case of California Contractors, in Occupational Licen-
sure and Regulation 26 (Simon Rottenberg ed. 1980).

Although expertise increases with experience, the
learning curve flattens out sooner or later. Does that time
come sooner (400 hours?) or later (4,000)? Nothing in the
record or the legislative debates so much as hints that
experience past 400 or even 40 hours has a measurable
effect on safety. Suppose Illinois had enacted this law:
“Heavy equipment operators dealing with hazardous
wastes shall be paid $5.00 more per hour than the market
wage of operators of identical equipment in other lines of
business.” This statute could not be thought preempted
by OSHA, yet for all we know it is identical in effect to
the statutes Illinois enacted.

Illinois does not defend its statutes by insisting that
they are unrelated to industrial safety. Preambles trumpet
that the laws “promote job safety”, Ill.Rev.Stat. ch. 111
997702, 7802. Very well. If Illinois chooses to dress up
what looks to be an interest-group deal in public-interest
clothing, it cannot rely on judicial x-ray vision. The pre-
ambles to the state laws are “clear”, quite unlike § 18 of
OSHA. Taking Illinois at its word leads to the conclusion
that the laws are preempted, if as my colleagues believe
§ 18 preempts state laws that regulate health and safety
on the job.

App. 44

UNITED STATES DISTRICT COURT, NORTHERN
DISTRICT OF ILLINOIS, EASTERN DIVISION

Name of Assigned Judge or Magistrate

JAMES B. ZAGEL

Sitting Judge/Mag. If Other Than Assigned Judge/Mag.
Case Number 88 C 10732 Date 30 Aug 89

Case Tithe NATIONAL SOLID WASTES MANAGEMENT
V. KILLIAN, et al

DOCKET ENTRY: (The balance of this form is reserved
for notations by court staff.)

(1) _ Judgment is entered as follows:
(2) XX [Other docket entry:]

Plaintiff's motion to clarify and for amendment of conclu-
sions of law is granted.

» » »

:
:

App. 45

Docketing dpty. initials
date mid. notices
mailing dpty. initials

ORDER

August 30, 1989 88 C 10732

Judge Zagel

The Memorandum Opinion and Order of 14 Aug 89 is
amended to strike the “within Illinois” requirement from
Ill. Rev. Stat. ch. 111, sec. 7706(c), the “apprentice train-
ing” provision. The remaining aspects of the plaintiff's
motion for clarification, as well as its motion for new
trial, are denied, except that we hold expressly that the
plaintiff's challenge to the “written testing” requirement
is not ripe at this time because it is not clear how the State
will implement this requirement.

App. 46

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
Eastern Division

NATIONAL SOLID WASTES JUDGMENT IN A

MANAGEMENT ASSOCIATION, CIVIL CASE
Plaintiff CASE NUMBER:

° 88 C 10732

a Judge Zagel

a
BERNARD KILLIAN, et al.,
Defendants

Jury Verdict. This action came before the Court for a
trial by jury. The issues have been tried and the jury
has rendered its verdict.

x_ Decision by Court. This action came to hearing
before the Court. The issues have been heard and a
decision has been rendered.

IT Is ORDERED AND ADJUDGED, the words “within
Illinois” are stricken from sections 7705(d) and 7805(d) of
the Illinois Acts. Enter Memorandum Opinion and Order.

August 16, 1989
Date
H. STUART CUNNINGHAM

Clerk

/s/ Donald Walker
(By) Deputy Clerk

App. 47

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

NATIONAL SOLID WASTES
MANAGEMENT ASSOCIATION,
an Illinois not-for-profit NO. 88 C 10732

)
)
)
corporation, ) HONORABLE
Plaintiff, JAMES B. ZAGEL
)
)
)
)

Vv.

BERNARD KILLIAN, Director of
the Environmental Protection
Agency, an Illinois agency, in his )
representative capacity; and NEIL )
F. HARTIGAN, Attorney General
of the State of Illinois, in his
representative capacity.

. Defendants.

— —" er Se

MEMORANDUM OPINION AND ORDER
Findings of Fact

1. National Solid Wastes Management Association
(National) is a natiomal trade organization whose mem-
bers are employers doing business in the hazardous
waste remediation industry.

2. National is a proper party representative of its
members.

3. National’s members operate under and are sub-
ject to the Occupational Safety and Health Act (OSH Act),
the Occupational Safety and Health Administration
(OSHA), as well as other federal statutes such as the
Comprehensive Environmental Response, Compensation
and Liability Act of 1980 (CERCLA) and the Superfund

App. 48

Amendments and Reauthorization Act of 1986 (SARA), 42
U.S.C. sec. 9601 et seq.

4. Bernard Killian is the Director of the Illinois
Environmental Protection Agency (IEPA).

5. The IEPA is responsible for implementing and
enforcing the Hazardous Waste Crane and Hoisting
Equipment Operators Licensing Act (Ill. Rev. Stat. ch. 111,
sec. 7701 et seq.) and the Hazardous Waste Laborers
Licensing Act (Ill. Rev. Stat. ch. 111, sec. 7801 et seq.).

6. The employees of National’s members perform
hazardous waste remediation work, including emergency
response and planned remediation work.

7. Among these employees are heavy equipment
operators and general laborers.

8. Ordinarily, these employees are permanent,
rather than temporary (or job specific).

9. These employees are field-experienced, trained
and qualified to engage in hazardous waste remediation
work in accordance with interim OSHA Regulation, 29
C.FR. Part 1910.120.

10. National’s members perform hazardous waste
remediation work on a national basis, and their
employees commonly work in more than one state over a
given period of time.

11. National’s members are required by OSHA reg-
ulation to train, qualify, and certify their hazardous waste
remediation workers. See 29 C.F.R. Part 1910.120.

12. Part 1910.120 regulates training, medical sur-
veillance, job site analysis, field experience, specific

App. 49

decontamination procedures, drum handling, annual
refresher courses, as well as other specific procedures and
competency standards for hazardous waste remediation
workers, including equipment operators and laborers.

13. OSHA periodically has audited and approved
the OSHA mandated training program of some of
National’s members to ensure they are complying with
the regulation.

14. The Illinois Acts are intended “to promote job
safety and to protect life, limb and property.” See Ill. Rev.
Stat. ch. 111, secs. 7702, 7802.

15. The IEPA did not participate in the drafting or
passage of either of the Illinois Acts, but Local 150 of the
Operating Engineers’ union did.

16. The Illinois Acts regulate the same matter (and
therefore the same employees) as Part 1910.120.

17. For example, the Illinois Acts require that haz-
ardous waste remediation workers receive the same ini-
tial training mandated by OSHA (40 hours), but they also
require that such training be conducted in Illinois. See
secs. 7705(d), 7805(d).

18. In addition, to qualify for a license under the
Hazardous Waste Crane and Hoisting Equipment Opera-
tors Licensing Act, a person must submit “a certified
record showing operation of equipment used in hazard-
ous waste handling for a minimum of 4,000 hours.” Sec.
7705(c).

19. Killian introduced no evidence at trial which
would arguably tend to show that the training-within-
Illinois or 4,000-hour requirement would reduce the risk

) WW i

App. 50

of danger to the public or employees or the environment.
Indeed, one of National’s experts, Dr. Fred Halvorsen,
testified that if implemented and enforced, there is “some
possibility” the Illinois Acts would increase such risk.

20. One of the ways in which the Illinois Acts could
result in increased risk is that they would diminish the
poo! of workers available to clean up hazardous waste
sites; and this diminution could be critical in an emer-

gency response situation.

21. Thus, under the Illinois Acts an employer could
not send into Illinois to perform hazardous waste “reme-
diation” services any employees who had not received 40
hours of training within Illinois or (to perform heavy
equipment operations) any employee who could not pre-
sent certification that he had at least 4,000 hours of expe-

rience operating equipment used in hazardous waste
handling.

22. And this could frustrate an employer’s attempt
to respond to environmental emergencies. For example,
some of National’s members, have contracted with the
United States EPA to performemergency response work
(aptly called Emergency Response Contracts); and meet-
ing these obligations could be impaired by the Illinois

Acts.

23. In addition, the Illinois Acts carry the potential
to disrupt the operation of the federally-endorsed

“Buddy System.”
24. Part 1910.120(a)(3) defines the “Buddy System”

as “a system of organizing employees into work groups
in such a manner that each employee of the work group is

App. 51

designated to be observed by at least one other employee
in the work group.” By making employees responsible for
one another, the Buddy System fosters “rapid assistance
to employees in the event of an emergency.”

25. The Illinois Acts, however, may well throw a
monkey wrench into the Buddy System because they
carry the potential of impairing employers from develop-
ing effective work groups. Suppose an employer put
together a work group of ten employees who were based
in Indiana, but only four of whom were qualified to be
licensed under the Illinois Acts; it is conceivable (though
by no means certain) that in responding to an emergency
in Illinois, the Buddy Systewp for those four licensed
employees would ve kaput.

Conclusions of Law

1. We have jurisdiction over this lawsuit pursuant
to 28 U.S.C. secs. 1331 and 2201.

2. National’s first claim is that the Illinois Acts are
preempted by 29 C.FR. Part 1910.120..

3. Preemption comes in two stripes: ‘express and
implied. Express preemption exists where Congress artic-
ulates a specific intent to displace an entire field of state

regulation.

4. Implied preemption is more elusive, however.
State law is impliedly preempted when Congress legis-
lates comprehensively to occupy an entire tield of regula-
tion, leaving no room for supplemental state regulation,
Northwest Central Pipeline v. State Corp. Comm'n of Kansas,
109 S. Ct. 1262, 1273 (1989); or when state law actually

Y

App. 52

conflicts with federal law, either because it is impossible
to comply with both bodies of law, or because state law
obstructs the accomplishment of congressional objectives,
id.; Hines v. Davidowitz, 312 U.S. 52 (1941).

5. In considering whether state regulation is impli-
edly preempted, however, there is a “presumption” that
state or local regulation of matters related to health and
safety is not [preempted].” Hillsborough County v. Auto-
mated Medical Laboratories, Inc., 471 U.S. 707, 715 (1985).
Killian correctly points out that the statutes being chal-
lenged here fall within this domain; therefore, to prevail,
National must show that preemption of this type of state
regulation “was the clear and manifest purpose of Con-
gress.” Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977).

6. We address first express preemption. Section
18(b) of the OSH Act provides that states wishing to
regulate an occupational safety or health issue covered by
a federal regulation must first submit a plan to federal
authorities for approval. 29 U.S.C. sec. 667(b).

7. Preemption under Sec. 18(b) focuses on the scope
of the federal regulations, rather than on the OSH Act.
Environmental Encapsulating Corp. v. New York City, 855
F.2d 48, 54 (2d Cir. 1988). (Federal regulations as well as
federal statutes can preempt state law. Hillsborough, 471

U.S. at 713.)

8. The issue thus revolves on the scope of the rele-
vant OSHA regulations, Part 1910.120. National argues,
and Killian concedes, that the Illinois Acts regulate mat-
ters expressly covered by Part 1910.120. Specifically, Part
1910.120 sets out training requirements for a large class of
employees, including heavy equipment operators and

y

App. 53

general laborers - the employees encompassed by the
Illinois Acts. Nonetheless, Killian contends the Illinois

Acts are not preempted.

9. In so contending, Killian relies heavily on the
principle that the preemptive reach of federal law extends
only as far as its purpose. See, e.g., Huron Cement Co. v.
Detroit, 362 U.S. 440, 444-45 (1960).

10. The purpose of Part 1910.120, according to
Killian, is to promote occupational safety and health. But
the Illinois Acts have a dual purpose: to promote job
safety and public safety (including environmental protec-

tion).

11. National’s response to this is that since both
bodies of law have a common purpose, it is sufficient to
justify preemption. Killian disagrees, citing Environmental
Encapsulating Corp. v. New York City, 855 F.2d 48, 57 (2d
Cir. 1988), in which the Second Circuit held that the
precise federal regulations at issue here preempted loca!
regulations, enacted for a dual purpose, only to the extent
that the local regulations lacked a “legitimate and sub-
stantial purpose apart” from promoting occupational

health and safety.

12. Other courts faced with the issue of the preemp-
tive scope of sec. 18(b) (in cases involving state laws
enacted for multiple purposes) have held that it preempts
such state law which has as its “primary purpose”
enhancing job safety in an area covered by federal regula-
tion. See Manufacturers’ Ass'n v. Knepper, 601 F.2d 130, 137
(3d Cir. 1986), cert. denied, 108 S. Ct. 66 (1987).

App. 54

13. Every Court of Appeals which has addressed
the issue, therefore, has rejected the argument that
National urges on us (namely, that a common purpose to
state and federal regulation is sufficient to warrant pre-
emption even where the state regulation serves another
purpose). While none of these decisions is binding on us,
we extend considerable deference to them, cf. Levit v.
Ingersoll Rand Financial Corp., 874 F.2d 1186, 1193-94 (7th
Cir. 1989); as such, it would require compelling reasons to
choose the trail National blazes, but National offers no
such reasons. Therefore we reject this argument.

14. But two questions remain. First, which yardstick

of preemption should be applied to state laws enacted for
more than one purpose?, and second, do the Illinois Acts

survive the test?

15. Regarding the first question, we find the Second
Circuit’s test, that state regulation is not preempted to the
extent there exists a legitimate and substantial purpose
apart from promoting job safety, a workable analytic tool,
and therefore preferable to the “primary purpose”
adopted by the Third Circuit. See also Michigan v.
Hegedus, No. 83601 (Mich. Sup. Ct. July 3, 1989), which
uses the Second Circuit’s approach. It is workable
because the legitimacy of a law’s purpose can be mea-
sured according to objective criteria. For example, courts
can consult objective principles of morality, which form
the seeds of much of what is now called the police
powers, and history, cf. FDIC v. Bank One, Waukesha, No.
88-2511, slip op. at 5-6 (7th Cir. Aug. 1, 1989), in deter-
mining whether a given purpose for state regulation is
legitimate. Similarly, history and constitutional divisions
of power (federalism) may prove useful in deciding

App. 55

whether a state’s interest in regulating certain conduct is
“substantial.”

16. The same cannot be said of the “primary pur-
pose” test. The major shortcoming with this test is not
theoretical, but practical. To determine the “primary pur-
pose” for which legislation was enacted one must not
only explore legislative intent (itself a risky business, see
In re Sinclair, 870 F.2d 1340 (7th Cir. 1989); In re Virtual
Network Services Corp., 98 B.R. 343 (N.D. Ill. 1989)), one
must also make the difficult (if not impossible) judgment
regarding which purpose the legislators found (or
believed) more important. This inquiry thus focuses on
the actual intent of individual legislators as they cast their
votes. The weaknesses inherent in this type of inquiry are
well known and the criticisms of it are persuasive. Most
importantly for our purposes, there is no principled man-
ner for executing this task. Granted, this may not be
cause for concern in the legislative arena, where out-
comes frequently are determined by will, but it is reason
for pause in the judicial realm, where outcomes should be
the product of reasoned judgments. See The; Federalist No.
78 (A. Hamilton) (Modern Library ed.); H. Arkes, First
Things 420 (1986). Cf. Szabo Food Service. Inc. v. Canteen
Corp., 823 F.2d 1073, 1083 (7th Cir. 1987), cert. dismissed,
108 S. Ct. 1101 (1988). Given the choice between tests
which examine objective and subjective criteria, we
choose - without pause - the former; for only inquiries
which can be resolved by reference to objective criteria
can provide the foundation for rules which may be
applied equally, and in a manner that is not completely
ad hoc.

App. 56

17. In applying the Second Circuit’s “independent
basis” test, we think it clear that the burden of demon-
strating that state regulation has a legitimate and sub-
stantial purpose apart from the purpose fostered by
federal law rests on the state. If anyone can marshal the
evidence necessary to establish the legitimacy and sub-
stantiality of state legislation, it is the State.

18. The purpose of state legislation is legitimate if it
regulates matters not committed to the exclusive control
of the federal government by virtue of the Constitution
such as national defense (we recognize of course that this
aspect of the test is not particularly stringent, but for that
it is no less valid); it is substantial if (a) it governs matters
that, in light of the federal interest at stake, arguably are
not insignificant, and (b) it arguably advances the pur-

pose sought to be achieved.

19. Applying the test to the portions of the Illinois
Acts challenged here, the training-within-Illinois and
4,000-hours requirements, we hold that the former must

fall, but the latter survives.
rs ta

20. In our view there is no question that the public
safety and environmental protection purposes of the Illi-
nois Acts are legitimate: this area of regulation has not
been committed to the exclusive stewardship of the fed-
eral government. Indeed, legislation directed toward
public safety and environmental protection falls squarely
within even the most stingy view of the States’ historic
police powers, Huron Cement Co., 362 U.S. at 442, and
thercfore comprises an area in which the States have

abundant power to act.

App. 57

21. Nor can it be said that Illinois’ interests in these
ends are insignificant in light of the federal government's
interest in occupational safety and health. Workers’ lives
and physical well-being are important. But so are those of
the citizenry; and, as human life depends on natural
resources tu sustain it, weighty too is Illinois’ interest in
the environment.

22. The only issue left, then, is whether Killian has
offered evidence sufficient to demonstrate that the chal-
lenged requirements of the Illinois Acts arguably further
Illinois’ legitimate interests in p-blic safety and environ-
mental protection.

23. Regarding the training-within-Illinois require-
ment, Killian has not offered even a scintilla (of a scin-
tilla) of evidence to show that compliance with this
directive will forward either public safety or environmen-
tal protection.

24. Geofrey Langley (National’s witness) testified
that this requirement would actually place the public and
environment in greater peril because it would have the
effect of diminishing the number of qualified employees
available to perform hazardous waste remediation work.
It would have this effect because many (or at least some)
out-of-state workers will be unable to travel to Illinois to
undertake the 40-hour training session (which, by the
way, is not cheap), thereby disqualifying them.

25. The within-Illinois requirement would be defen-
sible if Illinois’ topography were such that training in
Illinois bore a plausible relationship to performing ser-
vices in Illinois. In fact, however, the only testimony on
this score came from one of Killian’s witnesses, Cene

App. 58

Buss, who, on cross-examination, conceded that no two
hazardous waste sites are alike, and from one of
National’s witnesses, Dr. Halvorsen who testified that
there is “no reason to require training in any specific
[geographic] area.” Training is site specific. Thus, training
at one site in Ilinois likely would not help one on a job at
another site in Illinois. Therefore, we can only corclude
that the training-within-Illinois requirement is not
rationally related to the Illinois Acts, proposed ends of
public safety or environmental protection and thus does
not arguably serve to promote those ends. This require-
ment, accordingly, is insubstantial, and, since Illinois has
not filed a plan with OSHA pursuant to sec. 18 of the

OSH Act, it is expressly preempted.

26. We do not believe, however, that the same can
be said of the 4,000-hour requirement. It is a truism that
expertise follows experience. And 4,000 hours of experi-
ence represents a sizable step on the road to expertise (it
equals 2 full years —- 50 weeks x 40 hours per week = 2,000
hours per year). Certainly there is a rational basis to
believe that one who has labored on equipment for two
years is proficient on that equipment. This conclusion is
valid despite the fact that Killian offered no support for
it. True, Gene Buss, an instructor of training classes,
opined that the 4,000-hour requirement signifies that a
worker possesses “a good knowledge or a good under-
standing” of the equipment which he uses. But Mr. Buss’s
opinion conspicuously lacks reasoned justification, apart
from the implicit common sense rationale we have identi-
fied. And “[a]n expert who supplies nothing but a bottom
line supplies nothing of value to the judicial process.”

App. 59

Mid-State Fertilizer Co. v. Exchange National Bank, 877 F.2d
1333, ___ (7th Cir. 1989).

27. Mr Buss’s feeble testimony aside, we believe one
may conclude reasonably that a worker who has 4,000
hours of experience on certain equipment is proficient on
that equipment. This proficiency, in turn, justifies the
further conclusion that workers who satisfy the 4,000-
hour requirement (as to how they will satisfy it, see
below) will be better skilled than those who do not; and
better skilled means fewer accidents, which equals less
risk to public safety and the environment. On this record,
accordingly, we are persuaded that the 4,000-hour
requirement arguably advances the State’s interests in
public safety and environmental protection. Accordingly,
we hold this requirement is not expressly preempted by
sec. 18(b) of the OSH Act and Part 1910.120.

28. But the 4,000-hour directive must also run the
implied preemption gauntlet. As we noted above, there
are two ways in which state regulation may be impliedly
preempted: first, when Congress legislates comprehen-
sively, occupying the entire field of regulation, thus leav-
ing no room for concurrent state prescription. This form
of implied preemption is not implicated here. For Con-
gress confined the scope of preemption in sec. 18 of the
OSH Act to state regulation covered by a federal stan-
dard, and in so doing expressly recognized that the States
were free to regulate in areas not covered by a federal
standard, see 42 U.S.C. sec. 667(a).

29. Second, state law is preempted if it actually
conflicts with federal law in that (a) it is impossible to
comply with both bodies of law, or (b) state law stands as

App. 60

an obstacle to accomplishment of federal objectives. This

form is the issue here.

30. We reemphasize that state regulation of matter
within its traditional police powers presumptively is not
invalid under the Supremacy Clause. And such state leg-
islation will not be preempted unless the party advancing
this position establishes that it was “the clear and mani-
fest purpose of Congress.” Rice v. Santa Fe Elevator Corp.,
331 U.S. 218, 230 (1947). Accord Jones v. Rath Packing Co.,

430 U.S. 519, 525 (1977).

31. In order to make this determination, it seems
obvious that we must be familiar with the administration
of this requirement: how will the 4,000-hour requirement
be put into practice? National, however, offered no spe-
cific evidence demonstrating that it is or will be impossi-
ble to comply with this requirement and OSHA
regulations, or that this requirement will impair the
accomplishment of an objective of federal law. Absent
such a showing we are of the view that National has
failed to rebut the heavy presumption that this exercise of

Illinois’ police power is valid”

32. National also argues that the 4,000-hour require-
ment violates the negative Commerce Clause. U.S. Const.
art. 1, sec. 8. The basis for this contention is that imple-
menting this directive will have the practical effect of
foreclosing non-residents of Illinois from performing

heavy equipment remediation work in Illinois.
33. National also points out that Local 150 of the

Operating Engineers’ union has kept records of the hours
all of its members, all of whom presumably are Illinois

App. 61

residents, have worked on various pieces of heavy equip-
ment; and therefore that those of Local 150’s rallion
who have 4,000 hours of experience on heavy operatin
equipment easily will be able to provide a “certified
record” for licensing purposes.

34. Not so for the employees of National’s mem-
bers, many of whom, according to National, have the
experience but not the documentation. Thus, they will be
unable to put together the necessary dunsnastosion to be
onriatan under the Operating Engineers Act. This, in turn,
[ — de facto discrimination against non-residents

s 35. We See a major stumbling block in National’s path
Owever: ripeness. National's gripe essentially is that its
member’ employees will not be able to comply with the
certified record” aspect of the 4,000-hour requirement
rather than against the 4,000-hour requirement as such This
presents a factual question. But until the IEPA adopts , la-
tions detailing how this requirement will be Sedineand it
seems tO us premature to conclude that this requirement
cannot be met by those who have not kept itemized record
of their work experience. See, e.2.6. ican Paper Instit 4
Inc. v. United States Environmental Pro tion Agency a.
88-1395 & 88-1396, slip op. at 17 (7th Cir. Aug. 1, 1989)
(“Issues that are fit for judicial decision are purely le al in
nature and concern completed matters.”). As the TEPA’
Proposed rules demonstrate, it is not beyond the realm of
possibility, for example, that the IEPA will adopt regulations
construing “certified record” to mean a swom statement b
an employee (or employer) to the effect that the emplo m4
possesses the requisite experience (see Proposed III. Admin
Reg., Title 35, Subtitle G ch. II, secs. 865.302(a)(6) and
303(aX(7), published on July 11, 1989). Granted, the IEPA

App. 62

need not choose (or stay with) this course; it may opt for the
supporting document approach feared by the plaintiff. We
make no suggestion regarding the State’s final choice one
way or the other; we are convinced, however, that National’s
Commerce Clause challenge to the 4,000-hour requirement is
not ripe for adjudication. Therefore, we dismiss this portion
of National's complaint for want of subject matter jurisdic-

tion.

Conclusion

We hold that the provision in the Illinois Acts requir-
ing that persons in the hazardous waste remediation
business receive 40 hours of training within Illinois is
expressly preempted by sec. 18 of the OSH Act. We also
hold that this requirement may be severed from the Acts,
thus allowing the remaining sections of the Acts to stand.
We therefore strike the words “within Illinois” from secs.

7705(d) and 7805(d).

The requirement that heavy equipment operators
provide a certified record that they have 4,000 hours of

experience on heavy equipment is em And
National’s claim that this requirement’violates the nega-

tive Commerce Clause is premature.

Enter:

/s/ James B. Zagel
James B. Zagel
United States District Judge

Date: August 14, 1989

—SLDLLLLSSPESSSSSSESS-“CS“OS I

App. 63

CONSTITUTION OF THE UNIIED STATES

Article VI, Clause 2

This Constitution, and the Laws of the United
States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be
made, under the Authority of the United States,
shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby,
any Thing in the Constitution or Laws of any
State to the Contrary notwithstanding.

THE OCCUPATIONAL SAFETY AND HEATH ACT
(The OSH Act)

29 U.S.C.A. § 651(b):

§ 651. Congressional statement of findings and
declaration of purpose and policy

® @ @

_,. (b) The Congress declares it to a urpose and
policy, through the exercise of its powers to regulate
commerce among the several States and with foreign
nations and to provide for the general welfare, to assure
so far as possible every working man and woman in the
Nation safe and healthful working conditions and to pre-
serve our human resources -

App. 64

THE OCCUPATIONAL SAFETY AND HEALTH ACT
(The OSH Act)

29 US.C.A. § 667

§ 667. State jurisdiction and plans

(a) Assertion of State standards in absence of applica-
ble Federal standards

Nothing in this chapter shall prevent any State
agency or court from asserting jurisdiction under State
law over any occupational safety or health issue with
respect to which no standard is in effect under section 655
of this title.

(b) Submission of State plan for development and
enforcement of State standards to preempt applica-
ble Federal standards

Any State which, at any time, desires to assume
responsibility for development and enforcement therein
of occupational safety and health standards relat.ng to
any occupational safety or health issue with respect to
which a Federal standard has been promulgated under
section 655 of this title shall submit a State plan for the
development of such standards and their enforcement.

App. 65

SUPERFUND AMENDMENTS AND
REAUTHORIZATION ACT OF 1986
(SARA)

29 U.S.C.A. § 655 note (West Supp. 1990)
§ 655. Standards

Historical and Statutory Notes

Hazardous Waste Operations. Pub.L. 99-499, Title I,
§ 126(a)-(f), Oct. 17, 1986, 100 Stat. 1690, as amended
Pub.L. 100-202, § 101(f) [Title II], Dec. 22, 1987, 101 Stat.
1329-198, provided that:

“(a) Promulgation. - Within one year after the date
of the enactment of this section, the Secretary of Labor
shall, pursuant to section 6 of the Occupational Safety
and Health Act of 1970, promulgate standards for the
health and safety protection of employees engaged in
hazardous waste operations.

. * *

“(2) Training. — Requirements for contractors to
provide initial and routine training of workers before
such workers are permitted to engage in hazardous waste
operations which would expose them to toxic substances.

App. 66

Hazardous Waste Operations and Emergency Response
OSHA Final Rule, March 6, 1990

29 CFR § 1910.120(a) and (e)

(a) Scope, application, and definitions - (1) Scope. This
section covers the following operations, unless the
employer can demonstrate that the operation does not
involve employee exposure or the reasonable possibility
for employee exposure to safety or health hazards:

(i) Clean-up operations required by a governmental
body, whether Federal, state, local or other involving
hazardous substances that are conducted at, uncontrolled
hazardous waste sites (including, but not limited to, the
EPA’s National Priority Site List (NPL), state priority site
lists, sites recommended for the EPA NPL, and initial
investigations of government identified sites which are
conducted before the presence or absence of hazardous
substances has been ascertained);

(ii) Corrective actions involving clean-up operations
at sites covered by the Resources Conservation and
Recovery Act of 1976 (RCRA) as amended (42 U.S.C. 6901

et seq.);

(iii) Voluntary clean-up operations at sites recog-
nized by Federal, state, local or other governmental
bodies as uncontrolled hazardous waste sites;

(iv) Operations involving hazardous wastes that are
conducted at treatment, storage, and disposal (TSD) facil-
ities regulated by 40 CFR Parts 264 and 265 pursuant to
RCRA; or by agencies under agreement with U.S.E.P.A. to
implement RCRA regulations; and

App. 67

(v) #mergency response operations for releases of,
or substantial threats of releases of, hazardous substances
without regard to the location of the hazard.

(2) Application. (i) All requirements of Part 1910 and
Part 1926 of Title 29 of the Code of Federal Regulations
apply pursuant to their terms to hazardous waste and
emergency response operations whether covered by this
section or not. If there is a conflict or overlap, the provi-
sion more protective of employee safety and health shall
apply without regard to 29 CFR 1910.5(c)(1).

(ii) Hazardous substance clean-up operations
within the scope of paragraphs (a)(1)(i) through (a)(1)(iii)
of this section must comply with all paragraphs of this
section except paragraphs (p) and (q).

(iii) Operations within the scope of paragraph
(a)(1)(iv) of this section must comply only with the
requirements of paragraph (p) of this section.

Notes and Exceptions: (A) All provisions of para-
graph (p) of this section cover any treatment, storage or
disposal (TSD) operation regulated by 40 CFR parts 264
and 265 or by state law authorized under RCRA, and
required to have a permit or interim status from EPA

pursuant to 40 CFR 270.1 or from a state agency pursuant
to RCRA.

| (B) Employers who are not required to have a per-
mit or interim status because they are conditionally
exempt small quantity generators under 40 CFR 261.5 or
are generators who qualify under 40 CFR 262.34 for
exemptions from regulation under 40 CFR parts 264, 265

App. 68

and 270 (“excepted employers”) are not covered by para-
graphs (p)(1) through (p)(7) of this section. Excepted
employers who are required by the EPA or state agency to
have their employees engage in emergency response or
who direct their employees to engage in emergency
response are covered by paragraph (p)(8) of this section,
and cannot be exempted by (p)(8)(i) of this section.
Excepted employers who are not required to have
employees engage in emergency response, who direct
their employees to evacuate in the case of such emergen-
cies and who meet the requirements of paragraph
(p)(8)(i) of this section are exempt from the balance of
paragraph (p)(8) of this section.

(C) If an area is used primarily for treatment, stor-
age or disposal, any emergency response operations in
that area shall comply with paragraph (p)(8) of this sec-
tion. In other areas not used primarily for treatment,
storage, or disposal, any emergency response operations
shall comply with paragraph (q) of this section. Compli-
ance with the requirements of paragraph (q) of this sec-
tion shall be deemed to be in compliance with the
requirements of paragraph (p)(8) of this section.

(iv) Emergency response operations for releases of,
or substantial threats of releases of, hazardous substances
which are not covered by paragraphs (a)(1)(i) through
(a)(1)(iv) of this section must only comply with the
requirements of paragraph (q) of this section.

+ * *

(e) Training - (1) General. (i) All employees working
on site (such as but not limited to equipment operators,

App. 69

general laborers and others) exposed to hazardous sub-
stances, health hazards, or safety hazards and their
supervisors and management responsible for the site
shall receive training meeting the requirements of this
paragraph before they are permitted to engage in hazard-
ous waste operations that could expose them to hazard-
ous substances, safety, or health hazards, and they shall
receive review training as specified in this paragraph.

(ii) Employees shall not be permitted to participate in
or supervise field activities until they have been trained
to a level required by their job function and respon-
sibility.

(2) Elements to be covered. The training shall thor-
oughly cover the following:

(i) Names of personnel and alternates responsible
for site safety and health;

(ii) Safety, health and other hazards present on the
site;

(ili) Use of personal protective equipment;

(iv) Work practices by which the employee can mini-
mize risks from hazards;

(v) Safe use of engineering controls and equipment
of the site;

(vi) Medical surveillance requirements, including

recognition of symptoms and signs which might indicate
overexposure to hazards; and

(vii) The contents of paragraphs (G) through (J) of
the site safety and health plan set forth in paragraph

(b)(4)(ii) of this section. ~ ,

App. 70

(3) Initial training. (i) General site workers (such as
equipment operators, general laborers and supervisory
personnel) engaged in hazardous substance removal or
other activities which expose or potentially expose
workers to hazardous substances and health hazards
shall receive a minimum of 40 hours of instruction off the
site, and a minimum of three days actual field experience
under the direct supervision of a trained, experienced
supervisor.

(ii) Workers on site only occasionally for a specific
limited task (such as, but not limited to, ground water
monitoring, land surveying, or geo-physical surveying)
and who are unlikely to be exposed over permissible
exposure limits and published exposure limits shall
receive a minimum of 24 hours of instruction off the site,
and the minimum of one day actual field experience
under the direct supervision of a trained, experience
Supervisor.

(iii) Workers regularly on site who work in areas
which have been monitored and fully characterized indi-
cating that exposures are under permissible exposure
limits and published exposure limits where respirators
are not necessary, and the characterization indicates that
there are no health hazards or the possibility of an emer-
gency developing, shall receive a minimum of 24 hours of
instruction off the site and the minimum of one day
actual field experience under the direct supervision of a
trained, experienced supervisor.

(iv) Workers with 24 hours of training who are cov-
ered by paragraphs (e)(3)(ii) and (e)(3)(iii) of this section,
and who become general site workers or who are

App. 71

required to wear respirators, shall have the additional 16
hours and two days of training necessary t® total the
training specified in paragraph (e)(3)(\)

(4) Management and supervisor training On-site man
agement and supervisors directly responsible for, or who
supervise employees engaged in, hazardous waste opera
tions shall receive 40 hours initial training, and three
days of supervised field experience (the training may be
reduced to 24 hours and one day if the only area of their
responsibility is employees covered by paragraphs
(e)(3)Gi) and (e)(3)(iii)) and at least eight additional hours
of specialized training at the time of job assignment on
such topics as, but not limited to, the employer's safety
and health program and the associated employee training
program, personal protective equipment program, spill
containment program, and health hazard monitoring pro
cedure and techniques.

(5) Qualifications for trainers. Trainers shall be quali-
fied to instruct employees about the subject matter that is
being presented in training. Such trainers shall have satis
factorily completed a training program for teaching the
subjects they are expected to teach, or they shall have the
academic credentials and instructional experience neces.
sary for teaching the subjects. Instructors shall demon
Strate competent instructional skills and knowledge of
the applicable subject matter.

(6) Training certification. Employees and supervisors
that have received and successfully completed the train-
ing an

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0103%3A02. Public record. Not legal advice.