Amicus Curiae Brief — Gade v. National Solid Wastes Management Assn.

Supreme Court brief1992

Ask Donna

What actually matters in this document.

Text

_—

OCTOBER TERM, 1991

MARY GADE, DIRECTOR, ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY, PETITIONER

Vv.

NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

KENNETH W. STARR

Solicitor General

MAUREEN E. MAHONEY

Deputy Solicitor General

JEFFREY P. MINEAR

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 514-2217

DAVID S. FORTNEY

Deputy Solicitor

ALLEN H. FELDMAN

Associate Solicitor

STEVEN J. MANDEL

Deputy Associate Solicitor

NATHANIEL I, SPILLER

Senior Appellate Attorney

Department of Labor

Washington, D.C. 20210

QUESTION PRESENTED

Section 18(b) of the Occupational Safety and

Health Act of 1970 provides that any State that de-

sires to assume responsibility for development and

enforcement of ‘occupational safety and _ health

standards relating to any occupational safety or

health issue with respect to which a Federal standard

has been promulgated” shall submit a state plan to

the Secretary of Labor for approval. 29 U.S.C.

667(b). The question presented is whether a State

may develop and enforce “dual purpose” safety and

health standards, which protect both workers and the

general public, without submitting a state plan.

(1)

TABLE OF CONTENTS

Page

Statement ................... : ea seasaieanaetanials 1

Discussion .............. a Se ee ee 9

Conclusion ......... Bho hE ee ET ae ao eT ee - 19

TABLE OF AUTHORITIES

Cases:

Associated Indus. of Mass. v. Snow, 898 F.2d 274

(Ist Cir. 1990) La eace-eeeseettty Baty 28, 24

Columbus Coated Fabrics Vv. . Industr ial Comm'n,

1 O.S.H.C. (BNA) 1361 (S.D. Ohio 1973) 12-13

Environmental Encapsulating Corp. v. City of

New York, 855 F.2d 48 (2d Cir. 1988) | ... 12,14

Farmworker Justice Fund, Inc. vy. Brock, 811 F.2d

613 (D.C. Cir. 1987), opinion vacated, 817 F.2d

fh Sonor 12

Five Migrant Farmworkers Vv . Hoffman, 136 NJ.

Super. 242, 345 A.2d 378 (1975) laa eae 12

Ingersoll-Rand Co. Vv. McClendon, 111 8S. Ct. 478

REND SEE ESTERS EI 10

Manufacturers Ass'n of Tri-County Vv. Knepper,

801 F.2d 130 (3d Cir. 1986), cert. denied, 484

U.S. 815 (1987) . gee ie cccvevee.... 14, 15,17

Martin v. OSHRC (CF & D, 11 S. Ct. 1171

I aren seeaccatinsieuneeebisiitiogemons 3

Metropolitan Life Insurance Co. Vv. Massachusetts,

ey Ss Tn CE ___._._._.._. ..sscesunnsenostinoneanoess 9,10, 11

New Jersey State Chamber of Commerce Vv.

Hughey, 774 F.2d 587, on remand, 868 F.2d 621

(3d Cir. 1985), cert. denied, 492 U.S. 920

(1968) . ; 15

Ohio Mfrs. ‘Asa’n v. City of Akron, 801 F.2d 824

(6th Cir. 1986), appeal dismissed and cert. de-

nied, 484 U.S. 801 (1987)... 12

Shaw V. Delta Air Lines, Inc., 463 U.S. 85 (1983) 11

United Steelworkers vy. Auchter, 763 F.2d 728

(3d Cir. 1985) a. eee 12

(111)

Constitution, statutes and regulation: Page

U.S. Const. :

Art. I, § 8,Cl.3 (Commerce Clause)... 6

Art. VI, Cl. 2 (Supremacy Clause) ss 6,9

Occupational Safety and Health Act of 1970, 29

U.S.C. GBI 66 BOG. .ncccccecccenccccecccnececneeoaes-.-.-... pas ac 1

§ 2(b),29 U.S.C. 651(b) a ese ae 2

§ 3(8), 29 U.S.C. 652(8) 6

§ 6,29 U.S.C.655 han eclije Pain .2,3,17

§ 6,29 U.S.C. 655 note... tt 3

§ 18, 29 U.S.C. 667 _. 2,5, 6, 8, 9, 10,11, 12

§ 18(a), 29 U.S.C. 667 (a) a 2,10

§ 18(b), 29 U.S.C. 667 (b) 2-3, 10, 11, 13, 15,

16, 17, 18, 19

§ 18(c), 29 U.S.C. 667(c) - Ser oe

Superfund Amendments and Reauthevtention Act

of 1986, Pub. L. No. 99-499, Tit. I, § 126, 100

Stat. 1690-1692 (42 U.S.C. 9626) jaa 3

§126(b) | 3,4

§ 126(b) (2)... eainianieel 3

2 RS isniaaapinmca 3

Hazardous Waste Crane and Hoisting Susienet

Operators Licensing Act, II]. Ann. Stat. ch. 111,

paras. 7701 et seq. (Smith-Hurd 1991) :

ig tS AE OR NS hee

I et le as LAY,

| |, eens

. . ECE

, &, |

Para. 7705(d)

SSN ee

Para. 7707(b) fail tae een eee

Para. 7708-7717 | e

Hazardous Waste Rabesese Riceutan Act, Tl.

Ann. Stat. ch. 111, paras. 7801 et seq. (Smith-

Hurd 1991):

Paras. 7801-7815

Paras. 7801-7802

aornanna&wrnanaq

oro

Statutes and regulations—Continued :

Para. 7804 (b)-(e) cae aCe al oe oe or .

Paras. 7804-7806 RR ER RO LL

ESSER enn ae eee Raa

29 C.F.R.:

§ 1910.120

§ 1910.120(a) (1) ecamubacals

§ 1910.120(b)-(0)

§ 1910.120(e) a: oanlisicines

§ 1910.120(e) (3) (i) eae

§ 1910.120(e) {4) rae .

§ 1910.120(e) (9)

Miscellaneous:

S. Bokat & H. Thompson, Occupational Safety and

Health Law (1988) pet eee is ee ae

51 Fed. Reg. 45,654 (1986) -

54 Fed. Reg. (1989) :

pp. 9294-9336 Saeed sapere er OT

pp. 9295-9296 seistiaieitiecsiebeaene a

pp. 9315-9316 nee

S. 2788 and H.R. 13373, Q1xt Gm. ‘Ist Sess.

(1969), reprinted in Subcomm. on Labor. Sen-

ate Comm. on Labor and Public Welfare, 92d

Cong., Ist Sess., Legislative History of the Oc-

cupational Safety and Health Act of 1970

(Comm. Print 1971) Pia He a ta ae ae

AaAOannnan

>~_r eh ee Ww 1 Ww

. 11,12

In the Supreme Court of the United States

OCTOBER TERM, 1991

No. 90-1676

MARY GADE, DIRECTOR, ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY, PETITIONER

NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted in response to the Court’s

order inviting the Solicitor General to express the

views of the United States.

STATEMENT

Petitioner seeks review of a court of appeals’ deci-

sion holding that the Occupational Safety and Health

Act of 1970 (OSH Act), 29 U.S.C. 651 et seq., re-

quires a State to obtain federal approval before sup-

plementing federal occupational safety and health

standards with additional requirements that serve a

“dual purpose” of protecting workers and the gen-

eral public. The court of appeals vacated a district

court decision holding that the OSH Act does not re-

quire federal approval of a particular “dual purpose”’

(1)

provision of Illinois law, and it remanded the case for

reconsideration of respondent’s claims as to other

provisions of Illinois law.

1. Congress enacted the OSH Act “to assure so

far as possible every working man and woman in the

Nation safe and healthful working conditions.”

§ 2(b), 29 U.S.C. 651(b). To achieve that objective,

Section 6 of the OSH Act authorizes the Secretary

of Labor to establish ‘occupational safety and health

standard[s].” 29 U.S.C. 655. The Act defines an

“occupational safety and health standard” as

a standard which requires conditions, or the

adoption or use of one or more practices, means,

methods, operations, or processes, reasonably

necessary or appropriate to provide safe or

healthful employment and places of employment.

§$3(8), 29 U.S.C. 652(8). The Secretary’s federal

standards establish a body of national regulations re-

specting specific occupational safety and health is-

sues. See 29 C.F.R. Pt. 1910.

Section 18 of the OSH Act governs the extent to

which the States may also assert jurisdiction over

occupational safety and health issues. 29 U.S.C. 667.

Section 18(a) makes clear that a State may continue

to assert “jurisdiction under State law over any oc-

cupational safety or health issue with respect to

which no [federal] standard is in effect.” 29 U.S.C.

667(a). Section 18(b) further provides, however:

Any State which, at any time, desires to as-

sume responsibility for development and enforce-

ment 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

6] shall submit a State plan for the development

of such standards and their enforcement.

29 U.S.C. 667(b). Section 18(c) states that the Sec-

retary shall approve a state plan if it meets certain

prescribed conditions. See 29 U.S.C. 667(c); 29

C.F.R. Pt. 1902 (state plan approval criteria). The

Secretary has delegated her authority under the Act

to the Occupational Safety and Health Administra-

tion (OSHA). See Martin v. OSHRC (CF & 1), 111

S. Ct. 1171, 1174 n.1 (1991).

2. In 1986, Congress directed the Secretary of La-

bor to promulgate interim and final standards, pur-

suant to Section 6 of the OSH Act, to protect the

safety and health of employees engaged in hazardous

waste operations. See Superfund Amendments and

Reauthorization Act of 1986 (SARA), Pub. L. No.

99-499, Tit. I §$ 126, 100 Stat. 1690-1692, reprinted

in relevant part at 29 U.S.C. 655 note. Section

126(b) of SARA lists eleven subjects, ranging from

site analysis to emergency response, to be included

(if supported by the rulemaking record) in the final

worker protection standard. Section 126(b)(2) spe-

cifically requires the standard to include ‘{r]equire-

ments for contractors to provide initial and routine

training of workers.”’ Section 126(d) contains addi-

tional direction on specific training and certification

requirements. 29 U.S.C. 655 note.

The Secretary promptly issued an interim final

standard, effective December 19, 1986, to protect

workers engaged in hazardous waste operations and

emergency response. 51 Fed. Reg. 45,654 (1986).

Thereafter, the Secretary issued a final standard, ef-

fective March 6, 1990, establishing a comprehensive

program for those workers. 54 Fed. Reg. 9294-9336

(1989); 29 C.F.R. 1910.120. The Federal Register

notice explained that the standard applies to

(1) clean-up operations at uncontrolled hazard-

ous waste disposal sites that have been identified

for clean-up by a governmental health or environ-

mental agency, (2) routine operations at hazard-

ous waste treatment, storage and disposal facili-

ties * * *, (3) emergency response operations at

sites where hazardous substances have been or

may be released, and (4) corrective actions at

[ Resource Conservation and Recovery Act] sites.

In addition OSHA has clarified that the agency

intends to cover voluntary clean-ups at govern-

ment identified sites.

54 Fed. Reg. 9295-9296 (1989); see 29 C.F.R.

1910.120(a) (1). The standard imposes substantive

requirements with respect to each of the eleven sub-

jects specifically identified in Section 126(b) of

SARA and also imposes requirements concerning

other topics such as safety and health programs, site

control, and sanitation. See 29 C.F.R. 1910.120(b)-

(o). The standard contains detailed provisions con-

cerning worker training and certification. 29 C.F.R.

1910.120(e)."

The Federal Register notice discussed the effect of

the federal standard on state regulation of worker

safety at hazardous waste sites. 54 Fed. Reg. 9315-

‘Its training provision requires, among other things, that

“Tgjeneral site workers (such as equipment operators, gen-

eral laborers and supervisory personnel) * * * shall receive

a minimum of 40 hours of instruction off the site, and a

minimum of three days actual field experience.” 29 C.F.R.

1910.120(e) (3) (i). On-site management and supervisors di-

rectly responsible for hazardous waste operations must receive

the same initial training as the employees they supervise, plus

at least eight additional hours of specialized training. 29

C.F.R. 1910.120(e) (4). Documented or certified work ex-

perience or training equivalent to the mandated initial train-

ing may substitute for the 40 hour requirement, although site-

specific training and supervised field experience is also re-

quired. 29 C.F.R. 1910.120(e) (9).

9316 (1989). The notice explained that the federal

standard responds to Congress’s conclusion in SARA

that “protection of employees engaged in hazardous

waste operations and emergency response”’ is “a prob-

lem of national scope.” /bid. It added that Section 18

of the OSH Act allows a State to participate in the

protection of those employees, and avoid the preemp-

tion of state laws through the submission of a state

plan. Ibid.

3. On August 23, 1988, while the Secretary’s in-

terim final standard was in effect, the State of ll-

linois enacted the Hazardous Waste Crane and Hoist-

ing Equipment Operators Licensing Act, Ill. Ann.

Stat. ch. 111, paras. 7701-7717 (Smith-Hurd 1991),

and the Hazardous Waste Laborers Licensing Act,

Ill. Ann. Stat. ch. 111, paras. .7801-7815 (Smith-

Hurd 1991). The laws, which are designated as acts

“in relation to environmental protection,” have a

stated legislative purpose ‘“‘to promote job safety and

to protect life, limb, and property.” Jd. at paras.

7701-7702, 7801-7802. They accomplish that purpose

principally through the licensing of hazardous waste

equipment operators and laborers working at a cov-

ered facility. /d. at paras. 7704-7707, 7804-7806.°

Both laws require a license applicant to provide a

certified record of at least 40 hours of training con-

* The Illinois laws appear narrower in scope than the OSHA

standard because their definition of “facility” does not include

any voluntary clean-up sites or emergency response sites. See

Ill. Ann. Stat. ch. 111, paras. 7703(f), 7803(e) (Smith-Hurd

1991). In addition, the Illinois laws do not apply to certain

classes of hazardous waste workers that are covered by the

OSHA standard. See id. at paras. 7704(c)-(f), 7804(b)-(e).

On the other hand, the Illinois laws do not appear to apply to

any sites, or employees on those sites, not covered by the

OSHA standard.

ducted “within the State of Illinois,” to pass a writ-

ten examination, and to complete an annual refresher

course of at least eight hours of instruction. Ill. Ann.

Stat. ch. 111, paras. 7705(c) and (e), 7707(b),

7805(c) and (d), 7806(b) (Smith-Hurd 1991).

Additionally, equipment operators, but not laborers

(or operator apprentices), are required to have a

certified record showing 4000 hours of experience in

the operation of equipment used in hazardous waste

handling. /d. at para. 7705(d). The laws also in-

clude provisions for administration and enforcement.

See id. at paras. 7708-7717, 7807-7815. The State of

Illinois has not submitted the laws to the Secretary

of Labor for approval as part of a state plan. See

OSH Act § 18(c), 29 U.S.C. 667(c).

4. Respondent, a trade association of employers in

the hazardous waste remediation industry, brought

suit in the United States District Court for the

Northern District of Illinois challenging the state

laws under the Commerce Clause and the Supremacy

Clause of the United States Constitution. See U.S.

Const. Art. I, § 8, Cl. 3 and Art. VI, Cl. 2. The dis-

trict court determined that respondent’s Commerce

Clause challenge was not ripe, but reached and

largely rejected respondent’s Supremacy Clause

claims. Pet. App. 47-62.

The district court observed that the Secretary had

issued a federal standard regulating the “same mat-

ter’’ as the Illinois laws, but concluded that Section

18 of the OSH Act preempts only those provisions of

the Illinois laws that lack a “legitimate and sub-

stantial purpose apart from promoting job safety.”

Pet. App. 49, 54. The district court held that the

4000-hour experience requirement substantially ad-

vances the State’s public safety and environmental

protection objective (‘‘to protect life, limb, and prop-

erty’) and therefore is saved from preemption. /d.

at 58-59, 62. It concluded that the training-within-

Illinois provision, on the other hand, does not sub-

stantially advance that objective and thus is pre-

empted. Jd. at 57-58, 62. The district court did not

address the other provisions of the Illinois laws.

5. The court of appeals vacated the district court’s

judgment and remanded the case for reconsideration.

Pet. App. 3-43. It first determined, in accord with

longstanding precedent, that Section 18 “expressly

prohibits states without federaily approved state

plans from exercising jurisdiction over an occupa-

tional health and safety matter as to which OSHA

has already duly promulgated a federal standard.”’

Id. at 17. The court of appeals concluded, however,

that “[t]he language 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.”’

Id. at 14.

The court recognized that “Section 18 is designed

to avoid subjecting workers and employers to dupli-

cative regulation, while allowing states the flexibility

to tailor worker health and safety programs to their

own needs.” Pet. App. 19. It observed that Section

18’s provisions for federal review of state plans

would be thwarted if a State could immunize worker

safety and health laws from the process “simply by

asserting a non-occupational purpose for the legisla-

tion.” Jd. at 18. The court accordingly adopted the

following approach:

When an OSHA standard exists, and the state

has not submitted a section 18 plan, we under-

take a two-step inquiry. First, we determine

whether the challenged state law or regulation

constitutes, in a direct, clear and substantial

way, regulation of worker health and safety. A

key factor in resolving this question is whether

the state law affects employer-employee obliga-

tions with respect to health and safety matters

in the workplace. Second, we attempt to extri-

cate from the state law or regulation and in-

validate those provisions that relate to worker

health and safety in a direct, clear and substan-

tial 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.

Id. at 19.

Applying that test, the court held that Illinois’

4000-hour experience requirement is preempted be-

cause it

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 im-

permissible worker health and safety goal with-

out also eliminating matter serving the permis-

sible public health and safety goal.

Pet. App. 29. The court remanded the case with di-

rections that the district court determine whether

other provisions in the Illinois statutes also are pre-

empted, observing that the State had not yet given

those provisions “concrete form” through implement-

ing regulations. /d. at 32.

Writing separately, Judge Easterbrook expressed

doubt that Section 18 of the OSH Act should be read

as a preemption provision. He suggested that Sec-

tion 18 could be construed to provide a State with

two options: The State may either (1) “oust” the

federal standard by submitting a state plan to the

Secretary for approval; or (2) ‘add to” the federal

standard without seeking the Secretary’s approval.

Pet. App. 35-36. He concluded, however, that if Sec-

tion 18 does provide a basis for preemption of state

law, then the court employed an appropriate test for

preemption of ‘dual purpose” state laws. Pet. App.

34-35, 42.

DISCUSSION

The court of appeals correctly recognized that once

the Secretary of Labor has promulgated a federal

standard addressing an occupational safety and health

issue, a State cannot unilaterally develop and en-

force state occupational safety and health standards

that relate to that issue. The lower courts have uni-

formly held that Section 18 of the OSH Act pre-

empts supplementary state worker protection regu-

lation unless it is adopted as part of a federally ap-

proved state plan. The courts of appeals are in sharp

conflict, however, as to whether Section 18 applies to

“dual purpose” safety and health laws that protect

both workers and the general public. This case pre-

sents an appropriate opportunity to resolve the con-

tinuing disagreement among the lower courts on that

important issue.

1. The Supremacy Clause authorizes Congress to

enact laws that preempt otherwise valid state legisla-

tion. U.S. Const. Art. VI, Cl. 2. As this Court has

repeatedly stated, the question whether Congress has

exercised that power in any given case depends on

“Congress’ intent in enacting the federal statute at

issue.” Metropolitan Life Insurance Co. vy. Massa-

chusetts, 471 U.S. 724, 738 (1985). ‘“‘Pre-emption

may be either express or implied, and ‘is compelled

whether Congress’ command is explicitly stated in

the statute’s language or implicitly contained in its

structure and purpose.’”’ /bid.; accord Ingersoll-Rand

Co. v. McClendon, 111 S. Ct. 478, 482 (1990).

Section 18 of the OSH Act expresses a clear and

unmistakable intent to prohibit the States from uni-

laterally supplementing a federal standard address-

ing an occupational safety and health issue with state

requirements relating to the same issue. Section

18(a) provides that, when ‘no [federal] standard

is in effect,” a State may assert jurisdiction under

state law over any occupational safety and health

issue. 29 U.S.C. 667(a). Section 18(b) provides,

however, that if a State desires to develop and en-

force its own occupational health and safety stand-

ards “relating to any occupational safety or health

issue with respect to which a Federal standard has

been promulgated,” it must submit a state plan for

federal review. 29 U.S.C. 667(b). The consequences

of a State’s failure to participate in that process are

inescapable:

Although written in the form of a savings clause

rather than a direct statement of preemption,

this section clearly provides that if a federal

standard on an occupational safety and health

issue is in effect, a state cannot promulgate an

occupational safety and health standard relating

to that issue, unless it first submits the state plan

to OSHA for approval.

Associated Indus. of Mass. vy. Snow, 898 F.2d 274

278 (1st Cir. 1990).

Section 18 does not give the States a completely

free rein in regulating worker safety and health, but

it also does not completely exclude the States from

regulating those issues. Rather, Section 18 requires

that a State develop its regulatory program in co-

ordination with federal regulations respecting the

same issues. The Section 18 process requires a State

to examine the scope and content of the Secretary’s

standards to determine whether it may directly reg-

ulate a particular occupational safety and health

issue, or whether it may do so only through submis-

sion of a state plan. See S. Bokat & H. Thompson,

Occupational Safety and Health Law 681 (1988)

(“The state plan concept set forth in the Act is, in

essence, a scheme of administratively controlled pre-

emption.”’).

Petitioner acknowledges that a State cannot “‘dis-

place” a federal standard except through submission

of a state plan, but she asserts that a State need not

submit such a plan if it seeks only to “supplement

or add to OSHA standards in a manner which does

not conflict with OSHA.” Pet. 11-12. That argu-

ment—which parallels Judge Easterbrook’s analysis,

but finds no case support—is inconsistent with the

language of Section 18. That Section quite plainly

provides that a State “shall submit a State plan” if

it desires to assume responsibility for developing or

enforcing a state standard “relating to” an OSHA-

regulated safety or health issue. 29 U.S.C. 667(b).

Section 18(b)’s mandatory directive is not limited

to state efforts that would “displace or conflict with”

(Pet. 11-12) a federal standard. State standards

that “supplement or add to” a federal standard also

“relat{e] to” the OSHA-regulated issue. See, e.v.,

Metropolitan Life Insurance Co., 471 U.S. at 739;

Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97

(1983). See also 8S. Bokat & H. Thompson, supra,

at 683 & n.15 (“Unlike many other federal laws, the

OSH Act does not afford the states complete freedom

to enact supplementary or complementary require-

ments in areas addressed by federal standards.’’) ;

id. at 686 n.28 (“Section 18(b) of the Act permits

states to adopt more effective standards only through

the vehicle of an approved state plan.”’).*

Thus, the court of appeals properly rejected peti-

tioner’s argument that Section 18 of the OSH Act

lacks preemptive force. It correctly held—as has

every other court that has addressed the issue—that

“section 18 unquestionably 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 Secre-

tary of Labor’s approval for its own plan.” Pet. App.

14.*

* The legislative history also supports that conclusion. Con-

gress rejected proposals that would have preempted, as a

permanent matter, only those state regulations that were “in

conflict” with a federal standard. S. 2788 and H.R. 13373,

9ist Cong., Ist Sess. $14(b)(1) (1969), reprinted in

Subcomm. on Labor, Senate Comm. on Iabor and Public

Welfare, 92d Cong., Ist Sess., Legislative History of the

Occupational Safety and Health Act of 1970 at 58, 706

(Comm. Print 1971) (Leg. Hist.). It also rejected proposals

that would have permitted any state standard affording “sig-

nificantly greater protection” than a federal standard. S. 2788

and H.R. 13373, supra, § 14(b) (2), reprinted in Leg. Hist.

58, 706.

4 See, e.g., Associated Indus. of Mass. v. Snow, 898 F.2d at

278; Environmental Encapsulating Corp. v. City of New

York, 855 F.2d 48, 55 (2d Cir. 1988): Farmworker Justice

Fund, Ine. Vv. Brock, 811 F.2d 613, 625-626, 640-641 (D.C.

Cir. 1987), opinion vacated on other grounds, 817 F.2d 890

(D.C. Cir. 1987); Ohio Mfrs. Ass'n v. City ef Akron, 801

F.2d 824, 828 (6th Cir. 1986), appeal dismissed and cert.

denied, 484 U.S. 80! (1987); United Steelworkers v. Auchter,

763 F.2d 728, 736 (3d Cir. 1985); Five Migrant Farmworkers

Vv. Hoffman, 136 N.J. Super. 242, 345 A.2d 378, 380 (1975);

Columbus Coated Fabrics v. Industrial Comm'n, 1 O.S.H.C.

2. Although the courts agree that Section 18(b)

has a preemptive effect, they disagree as to its appli-

cation where a State has adopted so-called “dual pur-

pose” safety and health regulations. This case marks

the fifth time since 1985 that a court of appeals

has grappled with the question whether Section

18(b) preemption extends to state or local laws that

are directed at promoting the safety and health of

both workers and non-workers. The courts of ap-

peals have adopted two fundamentally different

approaches.

The First, Second, and Third Circuits have essen-

tially held that a State may enforce a state safety

and health requirement that protects workers—even

though the state requirement relates to an issue ad-

dressed by an OSHA standard and the State has not

submitted a Section 18(b) state plan—if the regu-

latory requirement at issue also protects non-workers.

Those courts have developed three different analytical

approaches for distinguishing state laws that protect

only workers from those that protect a broader cate-

gory of persons:

(a) The First Circuit looks “to the effect of

the regulatory scheme.” Associated Indus. v.

Snow, 898 F.2d at 279. The court explained:

If the effect is to protect the public, the state

regulation is not preempted. If the effect is

solely to protect workers, the OSHA Stand-

ard prevails and the state regulation falls.

If the effect is to protect the public by reg-

ulating workers and work places, the regu-

lation stands because its ultimate effect is

protection of the public.

(BNA) 1361 (S.D. Ohio 1973). See also Pet. App. 17 (col-

lecting additional cases).

Id. at 280 (emphasis added ).*

(b) The Second Circuit considers whether

“there is a legitimate and substantial purpose

apart from protecting * * * workers.” Environ-

mental Encapsulating Corp. v. City of New

York, 855 F.2d 48, 57 (1988). The court stated

that “[i]f this is demonstrated, the particular

requirement is not a state ‘occupational safety

and health standard’ preempted by $18 [of the

OSH Act].” Jbid.*

mary purpose” of the state law. See Manufac-

turers Ass’n of Tri-County v. Knepper, 801 F.2d

130, 138 (1986), cert. denied, 484 U.S. 815

(1987). In applying that test, the Third Circuit

has held that a state requirement is not subject

to preemption if “the statutory purpose * * * is

broader than workplace safety.” See Manufac-

turers Ass'n of Tri-County, 801 F.2d at 136."

* The First Circuit applied that test to Massachusetts’ as-

bestos abatement requirements. The court concluded that the

State could regulate work practice and licensure, certification

and training, and protective clothing requirements, based on

the State’s interest in protecting the general public from

asbsetos exposure. 898 F.2d at 281. The court indicated that

the regulations requiring respirators and medical monitoring

for workers are preempted under its test. /d. at 281, 284.

* The Second Circuit applied that test to New York City’s

asbestos abatement requirements. The court upheld most of

those requirements, including instruction on worker personal

hygiene and on air monitoring, on the ground that they “have

a legitimate and substantial purpose to promote public health

and safety.” 855 F.2d at 57. It invalidated two training re-

quirements that “have as their sole purpose the promotion of

occupational safety and health.” /bid.

*The Third Circuit applied its test to Pennsylvania’s

“hazard communication” requirements. The court held that

Although those three courts disagree as to whether

one should look to the “primary purpose,” a “sub-

stantial purpose apart,” or the “effect’’ of the state

law, they essentially agree that Section 18(b) does

not apply to and cannot preempt state safety and

health requirements that protect both workers and

non-workers.

The Seventh Circuit has adopted a different ap-

proach in this case that marks a clear break with the

other courts of appeals. The Seventh Circuit has

ruled that Section 18(b) of the OSH Act applies to

state laws that have “direct, clear and substantial

effects on worker health and safety’—even if the

state regulation also protects non-workers. Pet. App.

19. The court has indicated that an attempt should

be made to separate the requirements affecting

worker safety and health from those affecting non-

workers. /bid. It has unequivocally stated, however,

that Section 18(b) prevents enforcement of a state

law that has “a dual purpose and effect from which

the worker health and safety aspect cannot be re-

moved.” J/bid. Thus, the Seventh Circuit—unlike

the First, Second, and Third Circuits—holds that

Section 18(b) does apply to and can preempt state

safety and health laws that protect both workers and

non-workers.

the state provisions dealing with worker education and train-

ing are preempted, but provisions dealing with hazard sur-

veys, labeling, and material safety data sheets are not totally

preempted. See 801 F.2d at 136-142. The Third Circuit first

formulated that test in New Jersey State Chamber of Com-

merce V. Hughey, 774 F.2d 587, 592-596, on remand, 868 F.2d

621 (1985), cert. denied, 492 U.S. 920 (1989). The court

held that New Jersey’s hazard communication provisions

dealing with workplace surveys and labeling are preempted,

but provisions dealing with environmental surveys and label-

ing are not. See 774 F.2d at 595-596; see also 868 F.2d at 628.

We submit that the Seventh Circuit’s approach is

the correct one. The Secretary of Labor has long

maintained that Section 18(b) of the OSH Act ap-

plies to state laws if a primary purpose or effect of

the state law is to regulate a worker safety and health

issue already addressed by a federal standard. The

Secretary’s view is based on a straightforward read-

ing of the statute. Section 18(b) plainly provides

that once the Secretary has promulgated a federal

standard addressing a particular occupational safety

or health issue, a State may not develop and enforce

“occupational safety and health standards” relating

to that issue unless it submits a state plan for ap-

proval. 29 U.S.C. 667(b). A state law requirement

that has a primary purpose or effect of protecting

worker safety or health remains an “occupational

safety and health standard” even if it also protects

non-workers. That conclusion is consistent with the

OSH Act’s definition of an “occupational safety and

health standard,” which does not exclude state dual-

purpose laws from the meaning of the term. See

$ 3(8), 29 U.S.C. 652(8).

The Seventh Circuit’s decision is consistent with

the Secretary’s position. The court first determined

that ‘an OSHA standard exists, and the state has not

submitted a section 18 plan.” Pet. App. 19. The court

then inquired whether the Illinois law “constitutes, in

a direct, clear and substantial way, regulation of

worker health and safety.” Jbid. It found that Illi-

nois’ 4000-hour experience requirement (the only

state law provision contested on appeal that the dis-

trict court squarely addressed) satisfies that descrip-

tion and that it is not possible to separate its “worker

health and safety goal’ from the “public health and

safety goal.” Jd. at 29. The court therefore con-

cluded that Illinois’ failure to include that require-

ment as a part of a state plan, in accordance with

Section 18(b), rendered it unenforceable. The Sev-

enth Circuit’s verbal formulation differs somewhat

from that of the Secretary. Nevertheless, the court’s

analysis—like that of the Secretary, and unlike that

of the other courts of appeals—properly focuses on

whether the state regulation significantly affects

worker safety and health.

3. Although we believe that the Seventh Circuit

adopted the correct approach, we submit that this

Court should nevertheless grant the petition for a

writ of certiorari and resolve the question whether

Section 18(b) applies to “dual purpose” safety and

health regulations. The question whether Section

18(b) applies to such laws is clearly important. The

Secretary has adopted numerous federal standards,

pursuant to Section 6 of the OSH Act, to protect

worker safety and health. See 29 C.F.R. Pt. 1910.

As the litigation in the various circuit courts demon-

strates, the States have increasingly attempted to

supplement those federal standards with state legis-

lation that simultaneously protects workers and the

general public. The States, employers, and employees

are in need of clear guidance whether such dual-pur-

pose regulatory requirements may be enforced in the

absence of a state plan.

Additionally, the issue is ripe for this Court’s re-

view. The question whether Section 18(b) applies to

a State’s ‘dual purpose’”’ regulations first reached this

Court in 1987, through a petition for a writ of cer-

tiorari to review the Third Circuit’s decision in Man-

ufacturers Ass’n of Tri-County vy. Knepper, supra.

The Court invited the United States to file a brief in

that case expressing the federal government’s views.

We submitted that the decision was incorrect, but we

urged that resolution of the issue should await fur-

ther developments. See U.S. Amicus Br. at 14-18, in

Manufacturers Ass’n of Tri-County v. Knepper, cert.

denied, 484 U.S. 815 (1987) (No. 86-1102). Since

that time, the First and Second Circuits have essen-

tially followed the Third Circuit’s approach, while the

Seventh Circuit has rejected that approach in this

case. The conflict among those courts is real. As the

Seventh Circuit observed, this case would be resolved

differently under the standard announced by the other

courts. Pet. App. 29-32. Unless this Court acts, that

conflict among the circuit courts is likely to persist.

The consequences of this conflict are substantial.

Section 18(b) was intended, in part, to encourage

more uniform regulation of occupational safety and

health issues having nationwide effect. The conflict

among the decisions of the courts of appeals, however,

has resulted in Section 18(b) being applied in a non-

uniform manner. States located in the First, Second,

and Third Circuits have broader authority than States

located in the Seventh Circuit to regulate occupa-

tional safety and health issues without submitting a

state plan. The States located in the First, Second,

and Third Circuits may avoid the state plan require-

ment by simply formulating their statutes or rules as

“dual purpose” regulations.

Finally, there is little to be gained by postponing

review until the district court has completed proceed-

ings on remand. The conflict among the courts of

appeals arises from a fundamental disagreement

whether Section 18(b) applies to “dual purpose”

safety and health laws. The Seventh Circuit holds

that it does, while the First, Second, and Third Cir-

cuits hold that it does not. That disagreement will

result in inconsistent application of Section 18(b)

of the OSH Act to the various States. The district

court’s proceedings on remand will serve only to de-

termine whether particular elements of the Illinois

laws are wholly worker-related, wholly non-worker-

related, or whether they have a dual purpose or ef-

fect. Those proceedings, however, will do little to

clarify the purely legal question whether Section

18(b) applies to the dual-purpose elements. That is

the source of disagreement among the circuit courts,

and that is a matter that warrants this Court’s re-

view.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.