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

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OCTOBER TERM, 1991

MARY GADE, DIRECTOR, ILLINOIS ENVIRON MENTAL

PROTECTION AGENCY, PETITIONER

Vv.

NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

KENNETH W. STARR

Solicitor General

MAUREEN E. MAHONEY

Deputy Solicitor General

WILLIAM K. KELLEY

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

202) 514-2217

MARSHALL J. BREGER

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 desires to as-

sume 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. 657(b). The question presented is whether this

provision precludes a State from developing or enforcing

“dual purpose” safety and health standards, which pro-

tect both workers and the general public, without sub-

mitting a state plan.

(1)

TABLE OF CONTENTS

Page

preewens Of Che United States.............................200....-c00-0000+. l

ES SPs ie 2

BE a a 9

Argument:

The OSH Act preempts state occupational safety

and health standards that relate to issues addressed

by a federal OSHA standard for which a state has

not submitted a state plan, including state stand-

ards with a dual purpose or effect of regulating the

safety and health of workers and the general

Nec scssceevecsvsunscsenceecens Blais 12

A. Section 18 of the OSH Act expressly preempts

enforcement of any state occupational safety

and health standards relating to issues governed

by a federal OSHA standard prior to approval

of a state plan by the Secretary of Labor __. 12

B. A state dual purpose standard is preempted if

its primary purpose or effect is to regulate an

occupational safety and health issue addressed

by a federal OSHA standard. __. vn 22

Nee ccenuees 0 a 30

TABLE OF AUTHORITIES

Cases:

American Federation of Labor Vv. Marshall, 570

ae eee cue. Cor. 19786) ............................. 4,7, 18,19

Associated Indus. Vv. Snow, 898 F.2d 274 (1st Cir.

a | |

Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691

a ae _ = SSS 18

Chemical Leaman Tank Lines, Inc. v. United

States, 368 F. Supp. 925 (D. Del. 1973) .. 25

Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984)... a 23

(111)

Cases—Continued : Page

Columbus Coated Fabrics v. Industrial Comm'n,

1 O.S.H.C. (BNA) 1361 (S.D. Ohio 1973) ........ 16

Davis Vv. Michigan Dep't of Treasury, 489 U.S.

SE AUT ccsivvicssilcbsoclbinmmiunuiasiuaaacetiacdp eaadaieaiacmet cena 19

English v. General Electric Co., 496 U.S. 72

DUITTIED <chilcdahiicipictaniastaetithinencianicamodamnciamstanscadees 24

Environmental Encapsulating Corp. Vv. City of

New York, 855 F.2d 48 (2d Cir. 1988). .....16, 26, 27, 28

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

613, vacated on other grounds, 817 F.2d 890

(il Ss eran 16

Fidelity Fed. Sav. & Loan Ass'n V. De la ‘Cuesta,

458 U.S. 141 (1982) ane 18

Five Migrant Farmworkers V. Hoffman, 345 A2d

378 (N.J. Super. Ct. App. Div. 1975) .......... onan 16

Guss V. Utah Labor Relations Board, 353 U.S. 1

ERASER ISAT As WAI a, MOREA i ed EAN SAN ae 15

Hillsborough County v. Automated Medical Labo-

, , = (ats & 2) | eeu 15, 18

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

A ar YR PERC A Sa an 12, 26, 27, 28

International Paper Co. V. Ouellette, 479 U.S. 481

REI arene tak BER beh cac ety on 25

Louisiana Pub. Serv. Comm'n v. FCC, 476 U.S.

355 (1986) _... ATOR EAD IN Eat Reig NGS RETIN 18

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

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

ft Bs FR eeceopn ee cees 16, 26, 27, 28

Martin Vv. OSHRC, 111 S. Ct. 1171 (1991) ............ 2,23

Metropolitan Life Insurance Co. Vv. Massachusetts,

471 U.S. 724 (1985) . , BRB

Michigan Canners & Freezers Ase’n ° V. . Agricul-

tural Marketing & Bargaining Bd., 467 U.S. 461

UUIIIIED "cusnccsrchtnseubisreiesceia esdloietomcentninenenniamedmmauaiiae 15

New Jersey State Chamber of Commerce V.

Hughey, 774 F.2d 587 (1985), on remand, 868

F.2d 621 (3d Cir.), cert. denied, 492 U.S. 920

(1989) oki a acl ee eee rie a 28

Northw-st Airlines, Ine. V. Goldschmidt, 645 F.2d

Re AS I TINIE ss scntantadssccaiidesqucetinotennigsansscnmetemess 25

Cases—Continued : Page

Ohio Mfrs. Ass’n V. City of Akron, 801 F.2d 824

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

nied, 484 U.S. 801 (1987) ~..................... selene 15, 16, 18

People V. Chicago Magnet Wire, 534 N.E.2d 962

(Ill. 1989), cert. denied, 493 U.S. 809 (1989) 17

People v. Hegedus, 443 N.W.2d 127 (Mich. 1989) 17

People v. Pymm, 563 N.E.2d 1 (N.Y. 1990), cert.

denied, 111 S. Ct. 958 (1991)..................... 17

Perez V. Campbell, 402 U.S. 6387 (1971) 27

Rice v. Santa Fe Elevator Corp., 331 U.S. 218

(1947) ks 16

San Diego Unions Vv. Garmon, 359 U.S. 243

(1959) mrs Pete he oe SaPeaamt 24, 25+

Shaw v. Delta Air Lines, Inc., 463 U.S. 8&5

(1983) ' SEN r 17, 24

State ex rel. Cornellier V. Black, 425 N.W. 2d 21

et a 17

United Air Lines, Ine. Vv. McMann, 434 U.S. 192

I se sacia cco iciinccinincpoeneen oaoncertssvercannearsioningrcseemmntte 19

I’nited States V. Shimer, 367 U.S. 374 (1961) 18

United Steelworkers Vv. Auehter, 763 F.2d 728

(34 Cir. 1966).........-. oe trig Rte eee: 16

Watson V. Buck, 313 U.S. 387 (1941) RE SRL aa 28

Wisconsin Public Intervenor V. Mortier, 111 8S. Ct.

2476 (1991) ee Bae Bs Tale Ae TT eae aes 15

Constitution, statutes, and regulations:

U.S. Const. :

Art. I, § 8, Cl. 3 2 7

(EE PEE AAI LL RATE ARLE AD ALD 7

Ast. Vi, Ci &......... ®

Sencar c lause ¥

Occupational Safety and Health Act of 1970, 29

U.S.C. 651 et seq.:

I arias ME Rt rssircentsesnecsctoctoxctnanstennnes 2

$ 2(b) (3), 29 U.S.C. 651 (b) (3) ~ 4

$ 2(b) (11), 29 U.S.C. 651 (b) (11) 4, 18,19

§ 3(8), 29 U.S.C. 652(8) . 2, 11, 23, 24, 25, 29

$ 6,29 U.S.C. 655 okceieiaia seiessabdanieacnsmasiecaas 2,3

$ 6§6(a), 29 U.S.C. 655 (a) 23

Statutes and regulations—Continued : Page

§ 6 note, 29 U.S.C. 655 note ................................. 4

Oe i eeeemunaie passim

$ 18(a), 29 U.S.C. 667 (a). oe > F FS SG

§ 18(b), 29 U.S.C. 667(b). PEROT passim

B 1B Ge), BO UB. GBF CE) .......00c0.cccccc...2.00022.-2-5- 3, 10, 13

eg Bi ns CE ED ov necencscscccecccccessscsnaversnes 3

aD 3

> Sot) MN | ee |

eg Be re I OID oo seisnencssccsiconsessanceseneenes 3

$ 18(h), 29 U.S.C. 667 (h) 3, 10, 14, 19, 20, 21

Superfund Amendments and Reauthorization Act

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

1613:

§ 126, 100 Stat. 1690-1692... papas 4,

es Se, I is csiccosenineninsesesoeescoocens 4

§ 126(b) (2), 100 Stat. 1690.......................000......

§$ 126(d), 100 Stat. 1691 2... Sc seelacbsee

FO BEERS TSE SEE hs Cs ee eC 15

Hazardous Waste Equipment and Laborers Opera-

tors Licensing Act, Ill. Ann. Stat. ch. 111

(Smith-Hurd 1991) :

Tn ie

paras. 7701-7717 ts

para. 7702... a 2 AP aden IEE, Ebi .

para. 7703 (f) . ibaa a ee

para. 7704-7707

para. 7704(c\-(f)

para. 7705(c)

para. 7705 (e)

para. T707(b) |

~~ & C1

SANNA AAAANIAH

Ann. Stat. ch. 111 (Smith-Hurd 1991):

paras. 7801-7802 .

paras. 7801-7815 _. ssedvaied 6,

para. 7803 (e) ate

para. 7804 (b)-(e) an

paras. 7804-7806

para. 7805(c) .....

SAA AaAaND

VII

Statutes and regulations—Continued : Page

para. 7805 (d) .............. ee SLT P Ae m, 7

pare. TE06() .................... 7

paras. 7807-7815 7

[ilinois Dental Practice Act, Ill. Ann. Stat. ch. 111,

paras. 2301-2357 (Smith-Hurd 1991) ............. 25

lllinois Emergency Planning and Community Right

to Know Act, Ill. Ann. Stat. ch. 111'., paras.

7701-7719 (Smith-Hurd 1991). ...0000000000....... 26

Illinois Hazardous and Solid Waste Recycling and

Treatment Act, Ill. Ann. Stat. ch. 127, paras.

2703-1 to 2703-8 (Smith-Hura 1991)... 26

Illinois Medical Practice Act of 1987, Ill. Ann.

Stat. ch. 111, paras. 4400-1 to 4400-63 (Smith-

as eseeeen 25

Illinois Nursing Act of 1987, Ill. Ann. Stat. ch.

111, paras. 3501-3549 (Smith-Hurd 1991)... 25

29 C.F.R.:

Pt. 1901:

Section 1901.2 . , 21

RGR Fae Ra aS pt ST cman Mra 3

II BI OTD o.ncncenesecsnceeczecnerseraceenee ue 3

RRR URES PIPED eat eerie Cres ec PO ea ROT CONTE

Section 1910.5(d) " Senne 2

Section 1910.120................................... 5

Section 1910.120(b)-(6) 00... Sao ne 5

Section 1910.120(e) .....................................5, 9, 29

Section 1010.120(e) (3) (i) 00 SB 29

Section 1910.120(e) (4)... 5

bo bo

Section 1910.120(e) (9) 00...

Section 1910.10390 _.. -

Section 1910.1200 (a) (2)

Pt. 1956 -s Ce ee

— DO

Miscellaneous:

S. Bokat & H. Thompson, Occupational Safety and

Health Law (1988) ................. . 17

BG Ce, HG GID ov ecccniveicies cceninsercevsnvsssccstocace 20

Vill

Miscellaneous—Continued : Page

Sn ss cenbanenonseionnbis 21

es te, Be CI veces vevesccveneiccecncsencccess aoe 7

Exec. Order No. 12,612, 52 Fed. Reg. 41,685-

RET el sec ae Ce 6

43 Fed. Reg. 49,726-49,727 (1978)................---.-.. 23

48 Fed. Reg. (1983) :

NES Or a OO aE 1s

I asia rato arenas eathonentmandocanesens 18

pp. 53,322-53,323 ........... scudidsetniaialeeaiiie eee 18

ae ee ee | 18

51 Fed. Reg. 45,654-45,675 (1986) 0. 4

54 Fed. Reg. (1989) :

nic an savcnnasonsweces Lexidabianiadcaotousoveinees 4

i a ceeleememmnsanidd 5

as alae OE Se ee Ce Ra ee Ba Re 5

a FED Peete PEE SIO Se TOD 5, 6,18

Io -snicogsslucereen emrieceeviepapomaniaensivies 5

p. 9316 recat acid didemalade aalsiamaiamadeesreeaetacaiuduaas 6

55 Fed. Reg. (1990) :

I Ls aicsiagunsnsnbpeumanesgrbniiinaen 24

SRE ESSA EPS oii cn” Ae re 24

I eI I I icici ccncisnwncascccsonesocees 25

H.R. 4294, 91st Cong., Ist Sess. (1969) 00000. 20

H.R. 13373, 91st Cong., Ist Sess. (1969) ......... ... 19, 20

H.R. 16785, 91st Cong., 2d Sess. (1970) ........ 20

OSHA Instruction STP 2-1.10A (Mar. 13,1981) 22

OSHA Instruction STP 2-1.10 (Aug. 16,1972). 22

S. 2193, 9ist Cong., 2d Sess. (1970)... ae 20

S. 2788, 91st Cong., Ist Sess. (1969)... 19, 20

S. 2864, 90th Cong., 2d Sess. (1968) ........000000000.... 20

S. Rep. No. 1282, 91st Cong., 2d Sess. (1970). . 19

Staff of Subcomm. on Labor of the Senate Comm.

on Labor and Public Welfare, 92d Cong., Ist

Sess., Legislative History of the Occupational

Safety and Health Act of 1970 (1971) (Comm.

Print) PANE Re IA Be ae os a, SANE 19, 20, 21

Iu the Sayrenw Court of thy United States

OCTOBER TERM, 1991

No. 90-1676

MARY GADE, DIRECTOR, ILLINOIS ENVIRON MENTAL

PROTECTION AGENCY, PETITIONER

wv.

NATIONAL SOLID WASTES MANAGEMENT ASSOCIATIO™

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This action challenges the validity of two statutes en-

acted by the State of Illinois and enforced by petitioner.

The action claims, among other things, that the statutes

are preempted under the Supremacy Clause of the United

States Constitution, Art. VI, Cl. 2, by operation of Section

18 of the Occupational Safety and Health Act of 1970

(OSH Act), 29 U.S.C. 667. The court of appeals held

part of the statutes to be preempted, and remanded to the

district court to determine whether the other statutory

provisions are also preempted in light of the test for OSH

Act preemption set forth in its decision.

The question presented is whether the OSH Act re-

quires a State to obtain federal approval before supple-

menting federal occupational safety and health standards

(1)

with additional requirements that serve a “dual purpose”

of protecting both workers and the general public. Under

the OSHi Act, the Secretary of Labor is charged with

promulgating and enforcing occupational safety and health

standards of national scope, and with administering the

program for approving state occupational safety and

health plans. The Secretary therefore has a keen inter-

est in the proper interpretation of Section 18.

STATEMENT

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(a) author-

izes the Secretary of Labor to establish “occupational

safety /and] health standard!s].” 29 U.S.C. 655(a).

The OSH 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 ap-

propriate to provide safe or healthful employment

and places of employment.

$318), 29 U.S.C. 65218). The standards promulgated

by the Secretary pursuant to the statute’s mandate com-

prise a body of national regulations respecting specific

occupational safety and health issues. See 29 C.F.R. Pt.

1910. The Secretary has delegated her authority under

the Act to the Occupational Safety and Health Adminis-

tration (OSHA!. See Martin v. OSHRC, 111 S. Ct. 1171,

1174 n.1 (1991).

The role of the States in regulating occupational safety

and health issues is addressed in Section 18. 29 U.S.C.

667. Section 18(a) provides that a State may continue

to assert “jurisdiction under State law over any occupa-

tional safety or health issue with respect to which no

'federal| standard is in effect.” 29 U.S.C. 667(a). See-

*»

tion 18(b) further provides that if a State “desires 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 under

[Section 6 of the OSH Act, 29 U.S.C. 655]” the State

“shall submit” a state plan concerning such standards.

29 U.S.C. 667 1b).

The remaining subsections of Section 18 prescribe the

requirements for, and federa! supervision of, state plans.

Section 18(c) states that the Secretary shall approve a

State plan if it meets certain prescribed conditions. 29

U.S.C. 667(c!; see 29 C.F.R. Pt. 1902 (state plan ap-

proval criteria}. For instance, a state plan must provide

for the development and enforcement of safety and health

standards that are “at least as effective” as the corre-

sponding federal standards, and must provide for enforce-

ment authority comparable to that of federal OSHA.

29 C.F.R. 1902.1(b). Section 181d) gives the Secretary

authority to reject a state plan that does not meet the

prescribed criteria. 29 U.S.C. 667(d). Section 18/e) per-

mits the Secretary, upon approving a state plan, to exer-

cise concurrent jurisdiction to enforce federal standards

for at least three years. 29 U.S.C. 667(e). Section 18(f)

requires continual evaluation of state plans and the with-

drawal of state plan approval if the Secretary determines,

based upon state reports and her own investigations

‘after the opportunity for a hearing) that the State has

failed to comply substantially with its plan. 29 U.S.C.

667(f)."

In addition to authorizing “the Secretary of Labor to

set_ mandatory occupational safety and health standards

applicable to businesses affecting interstate commerce”

' Section 18(g) provides for judicial review of a Withdrawal de-

cision. 29 U.S.C. 667(g). Sect, 18th) was a transitional provi-

sion (which expired on December 29, 1972) that permitted the

Secretary to enter into an agreement with a State to permit the

State to enforce its standards pending final action by the Secretary

with respect to a submitted state plan.

(§ 2b) (3), 29 U.S.C. 651(b)(3)), the Act thus “en-

courag|es| the States to assume the fullest responsibility

for the administration and enforcement of their occu-

pational safety and health laws” through the adoption

of federally approved state plans (§ 2(b) (11), 29 U.S.C.

651(b)(11)). The Act established a program of ‘‘cooper-

ative federalism” in which, within the framework of

federal preemption, enforcement responsibilities are dele-

gated back to those States willing to assume those re-

sponsibilities in accordance with the Act’s state plan

requirements. American Federation of Labor (AFL-CIO)

v. Marshall, 570 F.2d 1030, 1037-1088 n.22 (D.C. Cir.

1978).

2. In 1986, Congress directed the Secretary of Labor

to promulgate interim and final standards, pursuant 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; see generally 54 Fed. Reg. 9294-9295 (1989) (leg-

islative background to OSHA hazardous waste standard).

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

hazardous waste worker protection standard. Section

126(b) (2) specifically requires the standard to include

“frjequirements for contractors to provide initial and

routine training of workers.’ Section 126(d) contains

additional direction on specific training and certification

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

The Secretary issued an interim final standard, effec-

tive December 19, 1986, to protect workers engaged in

hazardous waste operations and emergency response. 51

Fed. Ree. 45,654-45,675 (1986). Thereafter, the Secre-

tary issued a final standard, effective March 6, 1990,

establishing a comprehensive program for workers at a

wide range of hazardous waste sites, including sites iden-

tified for clean-up by governmental agencies, sites used

for routine hazardous waste treatment, storage and dis-

posal, and sites that are the subject of emergency clean-up

operations, 54 Fed. Reg. 9294-9336 (1989); 29 C.F.R.

1910.120. The final standard imposes substantive re-

quirements with respect to each of the eleven subjects

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)-(0).

The standard thus contains detailed provisions con-

cerning worker training and certification at hazardous

waste sites. 29 C.F.R. 1910.120'e). Its training pro-

vision requires, among other things, that “{g]eneral site

workers (such as equipment operators, general 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 directly

responsible for hazardous waste operations must receive

the same initial training, plus at least eight additional

hours of specialized training and three days of super-

vised field experience. 29 C.F.R. 1910.120(e) (4). Docu-

mented or certified work experience or training equiva-

lent to the mandated initial training may substitute for

the 40 hour recuirement, although site-specific train-

ing and supervised field experience is also required. 29

C.F.R. 1910.120'e) (9). “The intent of the final training

provisions is to provide employees with the knowledge and

skills necessary to perform hazardous waste clean-up

operations with minimal risk to their safety and health.”

54 Fed. Reg. at 9304 (1989).

The Federal Register notice discussed the effect of the

federal standard on state regulation of worker safety

at hazardous waste sites. 54 Fed. Reg. 9315-9316 (1989),

The notice explained that the federal standard responds

to Congress’ conclusion in SARA that “protection of em-

ployees engaged in hazardous waste operations and emer-

gency response” is “a problem of national scope.” Jd. at

9315. It added that Section 18 of the OSH Act allows a

State to participate in the protection of those employees,

and avoid the preemption of state laws, through the sub-

mission of a state plan. /bid.*

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

final standard was in effect, the State of Illinois enacted

the Hazardous Waste Equipment Operators and Laborers

Act, Ill. Ann. Stat. ch. 111, paras. 7701-7717 (Smith-

Hurd 1991), and the Hazardous Waste Laborers Licens-

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

Hurd 1991). These laws, which are designated as acts “in

relation to environmental protection,” have a stated legis-

lative purpose “to promote job safety and to protect life,

limb, and property.” Jd. at paras. 7701-7702, 7801-7802.

They accomplish those purposes principally through the

licensing of hazardous waste equipment operators and

laborers working at covered facilities. Jd. at paras. 7704-

7707, 7804-7806."

Both laws require a license applicant to provide a cer-

tified record of at least 40 hours of training conducted

“within the State of Illinois,” to pass a written examina-

tion, and to complete an annual refresher course of at

least eight hours of instruction. Ill. Ann. Stat. ch. 111

* Stating that “OSHA 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. 9315

(1989), the Federal Register notes the Secretary's certification that

the standard complies with Executive Order No. 12,612 (52 Fed.

Reg. 41,685-41,688 (1987)), which directs agencies to avoid taking

preemptive action without clear constitutional authority and the

presence of a national problem. 54 Fed. Reg. 9316 (1989).

*The Illinois laws appear narrower in scope than the OSHA

standard because their definition of “[f]acility” 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 addi-

tion, 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 that are not

also covered by the OSHA standard,

paras. 7705(c) and (e), 7707(b), 7805(e) and (d),

7806(b) (Smith-Hurd 1991). In addition, 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 hazard-

ous waste handling. /d. at para. 7705\d). The laws also

include provisions for administrAvon and enforcement.

See id. at paras. 7708-7717, 7803815. The State of

Illinois has not submitted the laws tn the Secretary of

Labor for approval as part of a state plan.’ ,

4. Respondent, a trade association of emplovers in the

hazardous waste remediation industry, brought suit in

the United States District Court for the Northern Dis-

trict of Illinois challenging the Illinois laws under the

Commerce Clause and the Supremacy Clause of the United

States Constitution. See U.S. Const. Art. I, §8, Cl. 8:

Art. VI, Cl. 2. The district court determined that re-

spondent’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 matter”

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 substantial purpose

apart from promoting job safety.” Pet, App. 49, 54. The

district court held that the 4000-hour experience require-

ment substantially advances the State’s publie safety and

environmental protection objective (“to protect life, limb,

and property” (see Ill. Ann. Stat. ch. 111 paras. 7702,

7802)) and is therefore saved from preemption. Pet.

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

provision, on the other hand, does not substantially ad-

* Shortly after enactment of the OSH Act, Illinois submitted and

received initial approval for a state plan, but it withdrew its plan

on June 30, 1975. 40 Fed. Reg. 24,523 (1975); see AFL-CIO y.

Marshall, 570 F.2d at 308 n.23. Currently, 25 States or territorial

jurisdictions have obtained state lan approval from OSHA, includ-

ing two with plans applicable only to state and local public employ-

ees. See 29 C.F.R. Pts. 1952, 1956.

vance that objective and thus is preempted. Jd. at 57-58,

62. The district court did not address the other provi-

sions of the [llinois laws.

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

judgment and remanded. Pet. App. 3-43. It first deter-

mined, in accord with longstanding precedent, that Sec-

tion 18 “expressly prohibits states without federally ap-

proved state plans from exercising jurisdiction over an

occupational! health and safety matter as to which OSHA

has already duly promulgated a federal standard.” Jd.

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

“ltlhe 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.” Jd. at 14.

The court recognized that “Section 18 is designed to

avoid subjecting workers and employers to duplicative

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 Jaws from the

process “simply by asserting a nen-occupational purpose

for the legislation.” 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 undertake a two-

step inquiry. First, we determine whether the chal-

lenged state law or regulation constitutes, in a direct,

clear and substantial way, regulation of worker

nealih 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 provi-

sion 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 because 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 impermissible worker

health and safety goal without also eliminating mat-

ter serving the permissible public health and safety

goal.

Pet. App. 29. The court remanded the case with directions

that the district court determine whether other provisions

in the Illinois statutes also are preempted, observing that

the State had not yet given those provisions “concrete

form” through implementing regulations. /d. at 32.

Writing separately, Judge Easterbrook expressed doubt

that Section 18 of the OSH Act should be read as a pre-

emption provision. He sugeested that Section 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 Section 18 does provide a basis for preemption of state

law, then the court employed an appropriate test for pre-

emption of “dual purpose” state laws. Id. at 34-35, 42.

SUMMARY OF ARGUMENT

In 1986, Congress directed the Secretary of Labor to

adopt national standards for the protection of employees

engaged in hazardous waste operations. Pursuant to that

directive, the Secretary established a comprehensive health

and safety standard that, inter alia, requires training

and field experience certification of employees working at

hazardous waste sites. 29 C.F.R. 1910.120(e). There-

after, the State of Illinois adopted laws imposing addi-

tional work experience and licensing requirements on em-

ployees working at hazardous waste sites in Illinois. The’

State of Illinois did not seek the approval of the Secre-

tary under Section 18 of the OSH Act prior to seeking

enforcement of these additional safety requirements. The

express provisions of the OSH Act preclude enforcement

of the work experience requirement at issue in this case,

unless and until the State of Illinois submits a state plan

to the Secretary, and obtains her approval.

A. Once the Secretary adopts a federal standard gov-

erning an “occupational safety or health issue,” a State

that “desires to assume responsibility for development

and enforcement” of any occupational standards “relat-

ing” to the same issue “shall submit a State plan” for

“approval” by the Secretary of Labor. 29 U.S.C. 667(b)

and (c) (‘emphasis added). If a State fails to comply

with the statute’s mandatory directive to submit a plan

before assuming regulatory responsibility over such is-

sues, the literal language of Section 18 requires the com-

mon sense conclusion that a state law that has not been

approved cannot be enforced. 29 U.S.C. 667(a) (saving

from preemption any “State law over any occupational

safety or health issue with respect to which no standard

is in effect”); 29 U.S.C. 667(h) (providing that the

Secretary could enter into an agreement to permit a

State to enforce state safety standards prior to approval

of a plan, but only for a two year transitional period

following adoption of the Act).

The preemptive language of Section 18 is not limited to

state laws that directly conflict with the federal standard.

It encompasses any state “occupational safety and health

standard” that “relate|s|” to a worker safety issue ad-

dressed by a federal standard. 29 U.S.C. 667(b). A state

law that supplements the federal regulation of an issue

“relates’’ to that issue, regardless of whether the substan-

tive requirements of state and federal law actually

conflict.

B. Since preemption extends to any unapproved state

“occupational safety and health standard” that relates to

a federally regulated worker safety issue, the dispositive

issue in this case is whether the Illinois law should be

characterized as an “occupational safety [and] health

standard,” or a public health and safety standard. The

language of the statutory definition, and the Secretary’s

longstanding interpretation of that section, support the

conclusion that a state lawsthat has the primary pur-

pose or the primary effect of regulating worker health

and safety practices is an “occupational safety and health

standard,” even if it also protects non-workers. 29 U.S.C.

652(8) (defining an “occupational safety |and] health

standard” as one which “requires conditions [or] * * *

practices * * * reasonably necessary or appropriate to

provide safe and healthful employment and places of

employment.”’).

Under the Secretary’s interpretation, a law of general

applicability that regulates the conduct of workers and

non-workers alike would generally not be characterized as

an “occupational” standard, because its primary purpose

and effect would be the regulation of public safety and

not that of workers. A law such as the Illinois statute

at issue however, which imposes experience requirements

on hazardous waste workers, would have the primary

effect of regulating job-site safety practices—the very

“issue” addressed by the Secretary’s hazardous waste site

standard. Since Illinois did not submit a plan providing

for the adoption and enforcement of standards governing

this issue, the court of appeals correctly concluded that

the law is preempted by the OSH Act.

ARGUMENT

THE OSH ACT PREEMPTS STATE OCCUPATIONAL

SAFETY AND HEALTH STANDARDS THAT RELATE

TO ISSUES ADDRESSED BY A FEDERAL OSHA

STANDARD AND FOR WHICH A STATE HAS NOT

SUBMITTED A STATE PLAN, INCLUDING STATE

STANDARDS WITH A DUAL PURPOSE OF REGU-

LATING THE SAFETY AND HEALTH OF WORKERS

AND THE GENERAL PUBLIC

A. Section 18 Of The OSH Act Expressly Preempts En-

forcement Of Any State Occupational Safety and

Health Standards Relating To Issues Governed By A

Federal OSHA Standard Prior to Approval of a State

Plan By The Secretary Of Labor

1. It is well established that “pre-emption may be

either express or implied, and ‘is compelled whether Con-

gress’ command is explicitly stated in the statute’s lan-

guage or implicitly contained in its structure and pur-

pose.” Metropolitan Life Insurance Co. V. Massachu-

setts, 471 U.S. 724, 738 (1985): accord Jngersoll-Rand

Co. V. MeClendon, 111 8. Ct. 478, 482 (1990). The OSH

Act does not include statutory language that directly

states that failure to submit a plan under Section 18 pre-

cludes enforcement of state laws regulating worker health

and safety issues addressed by federal OSHA standards.

There is, however, only one reasonable interpretation of

the express language and structure of the OSH Act: All

state laws that fall within the definition of “occupational

safety and health standards” that “relat{e] to * * * any

occupational safety and health issue with respect to which

a Federal standard has been promulgated,” 29 U.S.C.

667(b', are unenforceable until approved as part of a

state plan by the Secretary of Labor under Section 18.

a. Section 1&8(a! of the OSH Act expresses a clear and

unmistakable intent to prohibit enforcement of any state

occupational safety law that unilaterally alters or supple-

ments a federal OSHA standard. Section 18(a) achieves

this result by identifying a class of state occupational

health and safety laws that are not preempted by the

OSH Act, stating that “|n]othing in this chapter shall

prevent any State agency or court from asserting juris-

diction under State law over any occupational safety or

health issue with respect to which no [federal] standard

is in effect.” 29 U.S.C. 667 (a).

The import of this language is clear. State occupational

safety laws that relate to issues that have not been ad-

dressed by federal standards are not preempted. State

occupational safety laws that relate to issues that have

been addressed by federal standards are preempted, un-

less saved by the remaining provisions of Section 18, ie.,

the plan approval process.

Petitioner’s argument that the OSH Act has no pre-

emptive force whatsoever fails to address the clear nega-

tive implication of this language. Petitioner offers no

explanation of what Section 18(a} means, if it does not

mean that federal standards, once they are in place, are

preemptive. In short, petitioner’s argument would render

Section 18(a' entirely superfluous.

b. The succeeding paragraphs of Section 18 confirm

this interpretation of Section 18a). Section 18(b) pro-

vides that once a federal standard is in effect, any State

that “desires to assume responsibility for development

and enforcement” of occupational standards pertaining to

that safety issue “shall submit a State plan,” 29 U.S.C.

667(b) (emphasis added), in order to obtain “approval”

from the Secretary of Labor. 29 U.S.C. 667\¢). The

statute does not say that any State that wishes to assume

“exclusive” responsibility for the safety issue shall sub-

mit a plan. Any assumption of responsibility for ‘“devel-

opment and enforcement” of standards pertaining to a

federally-regulated occupational health and safety issue

requires submission of a plan. If a state plan’s terms

meet the substantive requirements of Section 18, the See-

retary of Labor must approve the plan. By this method.

the States may regain a role in the reculation of the is-

sues governed by otherwise applicable federal standards.

It is logical to infer that state regulations that “shall”

be “approve|d|” by the Department of Labor cannot be

enforced in the absence of such approval. Other provi-

sions of Section 18 confirm this common-sense interpreta-

tion of the Act. Under Section 18(f), the Secretary may

withdraw approval under certain circumstances. 29

U.S.C. 667(f). When this is done, the plan “shall cease

to be in effect’”’ and the State is permitted to assert juris-

diction under its occupational health and safety law only

in a limited class of cases “commenced before the with-

drawal of the plan.” /hid. Yet under petitioner’s theory,

the only consequence of the Secretary’s withdrawal of

plan approval should be that federal and state jurisdic-

tion becomes concurrent, not that state jurisdiction is

withdrawn or changed. Section 18/(f) thus confirms

that States are not permitted to assume an enforce-

ment role without the Secretary’s approval (if a federal

standard relating to the same issue is in effect).

Similarly, Section 18(h) provides that States could

“enforce * * * occupational health and safety standards

in effect in such State” prior to approval of a state plan,

but only during the two years following adoption of the

Act, and only with the express agreement of the Secre-

tary. 29 U.S.C. 667(h). This provision would also have

been unnecessary if Section 18 was not intended to have

preemptive effect. Petitioner offers no explanation for

why any agreement was necessary to enforce a state law

during Section 18(h)’s interim period, if, as she main-

tains, the plan requirements are optional and operate

only if a State wishes to displace federal law entirely.

c. Petitioner’s reliance on the presumption that fed-

eral regulation of health and safety issues does not ordi-

narily preempt state initiatives in the field is accordingly

misplaced. Section 18 erects a clear scheme respecting

the States’ roles in protecting occupational safety and

health: If there is no applicable federal standard, the

States may act as they traditionally have; if, on the other

hand, there is an applicable federal standard, the States

must submit to the plan requirements if they wish to con-

tinue to regulate. Thus, 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 revulating those issues. See Michigan Can-

ners & Freezers Ass'n, Ine. vV. Agricultural Marketing &

Bargaining Bd., 467 U.S. 461, 469 (1984) (“Congress

may explicitly define the extent to which it intends to

preempt state law.”).

This careful structure therefore ‘ .vercome[s] the pre-

sumption that state and local regulation of health and

safety matters can constitutionally coexist with federal

regulation” of the same maters. Hillsborough County V.

Automated Medical Laboratories, 471 U.S. 707, 716

(1985).° Given the clarity of the statutory structure, the

* The language of Section 18(a) and (b) distinguishes this case

from Wisconsin Public Intervenor y. Mortis r, 111 S. Ct. 2476

(1991). In these sections, Congress explicitly delineated when a

State could assert jurisdiction over an occupational safety and

health issue (i.e., when no federal standard is in effect) and how

it could assume responsibility for the development of occupational

safety and health standards relating to promulgated federal stand-

ards (i.e, through the submission of a state plan for OSHA ap-

proval). The “inescapable implication” is that the existence of

OSHA standards preempts the States without. state plans from

asserting jurisdiction over federally regulated occupational safety

and health issues. Cf. Guss v. Utah Labor Relations Board, 258

U.S. 1, 10 (1957). By contrast, the Federal Insecticide, Fungicide,

and Rodenticide Act, the statute at issue in Mortier, “specifies that

States may regulate the sale or use of pesticides so long as the

state regulation does not permit a sale or use prohibited by the

Act.” 111 S.Ct. at 2480, citing 7 U.S.C. 136v(a). This Court con-

cluded that this grant of regulatory authority to the States cannot

be read as an implicit preemption of local political subdivisions,

particularly since the subdivisions are themselves “components of

the very entity the statute empowers.” 111 S. Ct. at 2483. Cf. Ohio

Mfrs, Ass'n Vv. City of Akron, 801 F.2d 824 (6th Cir. 1986), cert.

denied, 484 U.S. 801 (1987) (local law preempted by OSHA stand-

“clear and manifest,” Rice v. Santa Fe Elevator Corp.,

331 U.S. 218, 230 (1947), consequences of a State’s fail-

ure te participate in the state plan 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 promuigate an occupational safety or

health standard relating to that issue, unless it first

submits the state plan to OSHA for approval.

Associated Indus. Vv. Snow, 898 F.2d 274, 278 ‘1st Cir.

1990). Indeed, every court that has addressed the OSH

Act’s preemptive force has agreed with the court of

appeals in this case that “section 18 unquestionably pre-

empts 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 Sec-

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

14."

ard, but not by OSH Act itself, which expressly preempts only state

law). By contrast, Section 18(a) of the OSH Act, which permits

States to continue to enforce state standards in the absence of fed-

eral standards, does not make sense unless States may not enforce

their standards once federal standards are in place.

6 See, e.g., Associated Indus. Vv. Snow, 898 F.2d at 278; Environ-

mental Encapsulating Corp. Vv. City of New York, 855 F.2d 48, 55

(2d Cir. 1988); Farmworker Justice Fund, Ine. V. Brock, 811 F.2d

613, 625-626, 640-641, vacated on other grounds, 817 F.2d 890 (D.C.

Cir. 1987): Manufacturers Ass'n of Tri-County V. Knepper, 801

F.2d 120 (3d Cir. 1986), cert. denied, 484 U.S. 815 (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 (1987); United

Steelworkers V. Auchter, 763 F.2d 728, 736 (3d Cir. 1985); Five

Migrant Farmworkers Vv. Hoffman, 345 A.2d 378, 380 (N.J. Super.

Ct. App. 1975); Columbus Coated Fabrics v. Industrial Comm'n,

1 OS.H.C. (BNA) 1261 (S.D. Ohio 1975). See also Pet. App. 17

(collecting additional cases). In addition, several courts, while

holding that the OSH Act does not preempt state criminal prose-

2. Petitioner nevertheless argues that Section 18

should not be read to preempt State laws that “supple-

ment” or “add to” OSHA standards without conflicting

directly with them. Pet. Br. 20-22. Petitioner contends

that a State should be able to supplement federal law

without having to submit a comprehensive state plan that

would displace federal law under Section 18. That argu-

ment finds no case support because it is inconsistent with

the language, purposes, and legislative history of the Act.

a. The Act plainly provides that a State “shall submit

a State plan” if it desires to “assume responsibility for

development and enforcement” of any state occupational

standards “relating to” an OSHA-regulated safety or

health issue. 29 U.S.C. 667(b) (emphasis added). Sec-

tion 18(b)’s mandatory directive is not limited to state

efforts that would “displace or conflict with” a federal

standard. As this Court has recognized in analogous con-

texts, state standards that “supplement or add to” a fed-

era! standard also “relat{e] to” the federally regulated

issue. See, e.g., Metropolitan Life Insurance Co, 471 U.S.

at 739: Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97

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

Safety and Health Law 683 (BNA 1988) (“Unlike many

other federa! laws, the OSH Act does not afford the state

complete freedom to enact supplementary or complemen-

tary requirements in areas addressed by federal stan-

dards”); id. at 686 n.28 (“Section 18/b) of the Act per-

mits states to adopt more effective standards only through

the vehicle of an approved state plan’). Thus, state reg-

ulation of an issue addressed in a federal standard may

OSHA standards

563 N.E. 2d 1, 5

« Vv. Chreago

cutions, have likewise rccog

over state regulatory standards. /’

(N.Y. 1990), cert. denied, 111 8S. ©!

Magnet Wire, 534 N.E. 2d 962, 965

Asta Vv. Illinois, 493 U.S. 809 | 198

2d 127, 132 (Mich. 1989); State «

N.W. 2d 21, 24 (Wis. Ct. App. 1988

' “qd & ah mom.

He ye 143 N.W.

Black, 425

only be accomplished by submission and approval of a

state plan.’

b. Contrary to petitioner’s contention, Pet. Br. 18-22,

this literal interpretation of the statutory language is fully

consistent with the purposes of “cooperative federalism”

reflected in the Act. Although Congress surely intended

to “encourag|e] the States to assume the fullest responsi-

bility for the administration and enforcement of their oc-

cupational safety and health laws,” § 2(b) (11), 29 U.S.C.

651(b) (11); see AFL-CIO v. Marshall, 570 F.2d at 1037,

Congress also emphasized the need for national standards

and national control." The OSH Act evolved out of Con-

7“Pre-emption may result not only from action taken by Con-

gress itself; a federal agency acting within the scope of its con-

gressionally delegated authority may pre-empt state regulation.”

Louisiana Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 369 (1986). See

also, ¢.g., Hillsborough County v. Automated Medical Laboratories,

Inc., 471 U.S. 707, 713 (1985): Capital Cities Cable, Inc. v. Crisp,

467 U.S. 691, 699 (1984); Fidelity Fed. Sav. & Loan Ass'n V. De la

Cuesta, 458 U.S. 141, 153-154 (1982); United States v. Shimer, 367

U.S, 374, 381-383 (1961). Under the OSH Act, there is no preemp-

tion without the issuance of a standard. However, when a standard

issues, state preemption is automatic and flows directly from the

statute. It is therefore unnecessary for the Secretary to incorporate

an explicit preemption statement into each and every standard. In

fact, that has been done only once. See 29 C.F.R. 1910.1200(a)(2)

(hazard communication). In that instance, a statement was included

because preemption was a significant issue in the rulemaking. See

48 Fed. Reg. 53,280, 53,283-53,284, 53,322-53,323, 53,334 (1983).

Additionally, it removed any ambiguity concerning the preemption

of local, in addition to state, standards. See Ohio Mfrs. Ass'n, 801

F.2d at 831-832. The hazardous waste workers standard, like all

other CSHA standards with the exception of the hazard communica-

tion standard, does not include a preemption statement, although

its preamble described the state plan process, and specified that

“states with occupational safety and health plans approved by

OSHA under Section 18 of the OSH Act would be able to develop

their own state standards to address any special problems.” 54

Fed. Reg. 9315 (1989). Cf. Fidelity Fed. Sav. & Loan Ass'n, 458

U.S. at 158 & n.13 (deference owed regulatory preamble).

* Section 2(b)(11) cannot bear the weight that petitioner places

on it. While it is true that Section 2(b)(11) encourages the States

gressional recognition that “[t]he inadequacy of anything

less than a comprehensive, nationwide approach has been

exemplified by [state] experience” with disparate regula-

tion of particular issues. S. Rep. No, 1282, 91st Cong.,

2d Sess. 4 (1970), reprinted in Staff on the Subcomm.

on Labor of the Senate Comm. on Labor and Public Wel-

fare, 92d Cong., Ist Sess., Legislative History of the Oc-

cupational Safety and Health Act of 1970, at 144 (Comm.

Print 1971) |Leg. Hist.|. Congress carefully preserved

federal oversight and control of state standards through

the plan submission and approval process. Yet petition-

er’s interpretation would emphasize the Act’s preserva-

tion of state jurisdiction to the exclusion of the Act’s ad-

ditional purpose of ensuring supervision of worker health

and safety on a national seale.

c. In light of the clarity of the Act’s language and

structure, resort to legislative history is unnecessary.

See, e.y., Davis v. Michigan Dep’t of Treasury, 489 U.S.

803, 808, 809 n.3 (1989) (citing United Air Lines, Inc. v.

McMann, 434 U.S. 192, 199 (1977)). Nonetheless, the

Act’s history supports our view that Section 18 preempts

state regulations that have not been approved by the

Secretary as part of a state plan—even if they do not

directly conflict with the applicable federal standard.

First, Congress rejected proposals that would have pre-

empted only those state regulations that were “in con-

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

91st Cong., Ist Sess. $14(b) (1) (1969), reprinted in

Leg. Hist, 58, 706." Second, the history of Section 18(h)

to “assume the fullest responsibility” for protecting worker health

and safety, Congress explicitly stated that the means for doing so

were by providing federal grants to aid in identifying areas of

need, and by developing and implementing state plans under Sec-

tion 18, See 29 U.S.C. 651(b)(11). This section thus cannot be

read, as petitioner contends (Pet. Br. 20), as a general preservation

and affirmation of traditional state regulatory authority.

* Congress also rejected proposals that would have permitted any

state standard affording “significantly greater protection” than a

—the two-year transitional provision permitting States to

enforce certain state worker safety laws in advance of

plan approval—provides further confirmation. S. 2198,

§$ 17th), and H.R. 16785 (as amended by Committee on

the Whole), 91st Cong., 2d Sess. $ 18th) (1970), re-

printed in Leg. Hist. 572, 1105.

Significantly, every version of Section 18(h), includ-

ing its final form, required a formal agreement between

the Secretary and the States authorizing concurrent en-

forcement of state standards, regardless of whether they

conflicted with the federal standard.’ Representative

Hathaway, the House sponsor, stated that the “only pur-

pose” of the section was to “allow the States to continue

federal standard, S. 2788 and H.R. 13373, supra, § 14(b)(2), re-

printed in Leg. Hist. 58, 706, and that would have given the Secre-

tary discretion to decline jurisdiction over any occupational safety

and health issue whenever a state law and its enforcement “would

reasonably carry out the objectives of this Act.” S. 2864, 90th

Cong., 2d Sess. §12(a) (1968), reprinted in 114 Cong. Rec. 604

(1968); H.R. 4294, 91st Cong., Ist Sess. § 12(a) (1969), reprinted

in Leg. Hist. 671. In contrast to the proposals that were rejected,

the statute that Congress ultimately passed can only be read as

clearly and comprehensively ousting the States from jurisdiction

outside the state plan structure.

10 The Senate version of Section 18(h) would have restricted such

agreements to those authorizing interim state enforcements of non-

conflicting state standards that were “more stringent” than federal

standards. S. 2193, supra, $17(h), reprinted in Leg. Hist. 572.

Its purpose was to give the Secretary “authority to continue worthy

State operations until he is ready to step in with the authority

given him by this bill.” Leg. Hist. 50 (statement of Sen. Javits).

The House amendment also required interested States to enter into

interim agreements with the Secretary, but did not restrict the

States to enforcing only non-conflicting, more stringent standards.

H.R. 16785, supra, §18(h), reprinted in Leg. Hist. 1105. The

reason for the difference was to permit the Secretary to authorize

state enforcement of conflicting or less stringent state standards

until the federal standard “is ready to be enforced.” Leg. Hist.

1067-1068 (statement of Rep. Hathaway). The Conference Com-

mittee adopted the House version, which became Section 18(h) of

the OSH Act. See Leg. Hist. 1173, 1195, 1248.

to enforce their own standards with respect to the area

covered by the Federal standards” during any delay be-

tween the effective date of federal standards and their

enforcement. Leg. Hist. 1067 (statement of Rep. Hatha-

Way).

Petitivner has no explanation for why an agreement

“under which the State will be permitted to continue to

enforce” state standards pending approval of a state plan

Was necessary, if, as she maintains, the Act did not oust

the States from enforcing supplemental standards in any

circumstance.'' Moreover, the virtually contemporaneous

interpretation of the Secretary underscored the under-

standing that the section was a temporary exception to

the general principle of exclusive federal jurisdiction:

Section 18th) permits the Secretary to provide an

alternative to the exclusive Federal jurisdiction

lover| occupational safety and health issue(s]. This

alternative is temporary and may be considered a

step toward the more permanent alternative to ex-

clusive Federal jurisdiction provided by sections

18(b) and ‘e¢) following submission and approval of

a plan submitted by a State for the development and

enforcement of occupational safety and_ health

standards.

29 C.F.R. 1901.2 ‘promulgated Apr. 13, 1971, see 36

Fed. Reg. 7006) ‘emphasis added).

'l It is no answer to state that such agreements were necessary

to preserve state standards that were less stringent than federal

ones, because the plain language of Section 18(h) requires an

agreement to permit enforcement of all state standards during the

statutory interim period—-those that are both more and less restric-

tive than federal standards. Under petitioner’s theory however, the

States were then, as they are now, perfectly free to “supplement”

federal standards as they see fit.

B. A State Dual Purpose Standard Is Preempted if Its

Primary Purpose or Effect Is To Regulate an Occupa-

tional Safety and Health Issue Addressed by a Federal

OSHA Standard

As we have argued, the only reasonable interpretation

of Section 18 is that a State may not enforce any “occu-

pational safety and health standard,” 29 U.S.C. 667(b),

without the approval of the Secretary, if a federal stan-

dard relating to the same issue is in effect. The disposi-

tive issue in this case, therefore, is whether “dual pur-

pose” safety and health regulations, which promote the

safety and health of workers and the general public,

should be characterized as “occupational safety and health

standards” within the preemptive scope of the Act. The

Ijlinois laws at issue in this case, which were expressly

adopted “to promote job safety and to protect life, limb,

and property,” represent such dual purpose regulations.

1. The Secretary has long maintained that a state law

that has been adopted for the primary purpose or has the

primary effect of regulating a worker health and safety

issue already governed by a federal standard is pre-

empted, even if the state law has a dual purpose.” The

statute requires this conclusion because the preemptive

scope of Section 18 extends to any “occupational safety

and hea!th standards” relating to the issue addressed in

a federal standard, 29 U.S.C. 667(b), and such stan-

'* By regulation, the Secretary has said that an occupational

safety and health standard can be applicable “only to employees,

and their employment and places of employment,” so that an OSHA

s..ndard is inapplicable to the extent it “protects on its face a

class of persons larger than employees.” 29 C.F.R. 1910.5(d). A

longstanding program directive provides that state activities like

fire protection on behalf of public safety “predominantly for the

purpose of protecting a class of persons larger than employees * * *

when enforced for such purpose” are not affected by OSHA pre-

emption. OSHA Instruction STP 2-1.10A (Mar. 13, 1981), which

replaced an identically worded OSHA Instruction STP 2-1.10 ‘Aug.

16, 1972).

dards are expressly defined to include regulations that

“require conditions, * * * practices * * * or processes,

reasonably necessary or appropriate to provide safe or

healthful employment and places of employment.” See

$ 3/8), 29 U.S.C. 65218).

This statutory definition simply does not exclude dual

purpose laws. A state law requirement that has a pri-

mary purpose or effect of providing “safe or healthful

employment” remains an “occupational safety and health

standard” even if it also has the purpose or effect of

protecting non-workers. Moreover, dual purpose laws are

certainly “related to” federal standards addressing the

same “issue.” No more is required in order to trigger

Section 18(b)’s plan requirement. This construction of

these provisions is reasonable, and is accordingly entitled

to deference." Martin vy. OSHRC, 111 S. Ct. at 1176,

1179-1180; Chevron U.S.A. Inc. vy. Natural Resources

Defense Council, Inc., 467 U.S. 837, 844-845 (1984).

2. Petitioner’s contention that preemption of such dual

purpose laws will lead to “disaster for a wide variety of

'S Section 6(a) of the OSH Act, ‘29 U.S.C. 655(a ), authorized the

Secretary, during the first two years of the Act. to adopt as final

Standerds existing nations] consensus standards and established

federal standards, Many of these were not limited to worker pro-

tection, but included other provisions directed at issues such as

public safety or property protection. While the Secretary’s enforce-

ment authority extended only to the worker protection aspects of

these rules, the standards nevertheless remained on the books, as

written, as federal “occupational safety and health standards” until

OSHA later amended them. In revoking certain of the standards,

the Secretary explained: “[T)he Agency proposed for revocation

under this criterion provisions which were determined to explicitly

and primarily affect the general publie or property. However, stand-

ards which OSHA has ascertained do directly benefit employee

safety and health, notwithstanding any publie safety or property

aspects, have not been revoked.” 43 Fed. Reg. 49,726-49,727 (1978)

(revocation of selected general industry safety and health stand-

ards),

state and local public health and safety legislation” (Pet.

Br. 35) ignores the limitations imposed by the language of

the definitional section, 29 U.S.C. 652(8), and the Sec-

retary’s interpretation. The preemptive scope of Section

18 is limited to those laws that can fairly be categorized

as an “occupational” health and safety standard. A law

that does not have a clear and substantial impact on

worker health or safety, and only incidentally relates to

an OSHA standard, should not be characterized as an

“occupational” standard “relating” to an OSHA-regu-

lated “occupational” health and safety issue.* See Shaw,

463 U.S. at 100 n.21;: ef. San Diego Unions v. Garmon,

359 U.S. 243 (1959); English v. General Electric Co.,

496 U.S. 72 (1990). Only standards that have a clear

and substantial impact on worker health and safety re-

lating to an issue covered by a federal standard would

meet this definition under the Secretary’s interpretation.

In contrast, adoption of petitioner’s interpretation

would permit a State to evade the Act’s preemptive

reach simply by claiming a purpose or effect broader

than worker health or safety. Petitioner’s further sug-

gestion that laws adopted in the form of occupational

licensing requirements are not “occupational safety and

14 A state law of general applicability that only incidentally affects

workers, not as a class, but as members of the general public, can-

not fairly be described as an “occupational” standard. As an ex-

ample, an OSHA vehicle occupant safety standard, which is cur-

rently under agency consideration, would not preempt a prototypical

state seat belt or motorcycle helmet law. See 55 Fed. Reg. 28,728,

28.739 (1990). Similarly, the OSH Act does not typically preempt

state fire protection, boiler inspection, or building and electrical

code requirements, even though there are OSHA standards on these

subjects, because the state standards do not aim to protect workers

as a class, and do not have that primary effect. An occupational

licensing law, however, meets the threshold requirement of being

an “occupational” standard, and, as discussed below, the central

question then is whether, in primary purpose or effect, it regulates

a safety and health issue related to one addressed by a federal

standard.

health standards” (Pet. Br. 31-33; see also New York

State et al. Amicus Br. 13-14; AFL-CIO Amicus Br. 5-9,

17, 24) would represent a similar evasion of the statute

that is not consistent with its broad definitional language.

A licensing statute that “requires conditions,” such as

training, testing and the issuance of a license, in order to

“provide safe or healthful employment,” 29 U.S.C. 652

(8), is a safety and health occupational standard under

the statute. It is the “nature of the activities which the

States have sought to regulate, rather than * * * the

method of regulation adopted” that is determinative.

Garmon, 359 U.S. at 248; ef. International Paper Co. v.

Ouellette, 479 U.S. 481, 484 (1987).

Under the Secretary’s interpretation, the vast majority

of state occupational licensing requirements would not be

preempted, because their primary purpose or effect is not

the regulation of worker safety, but rather public safety."

All that the OSH Act requires is that the States either

confine their regulations to issues that do not substan-

tially intrude upon the federal occupational safety and

' A rule establishing a licensing requirement is a rule, not an ad-

judication or a license, within the meaning of the Administrative

Procedure Act, and may thus properly be classified as a “standard.”

See Northwest Airlines, Inc. Vv. Goldschmidt, 645 F.2d 1309, 1921

(8th Cir. 1981) ; Chemical Leaman Tank Lines, Inc. v. United States,

368 F. Supp. 925, 933-936 (D. Del. 1973) (three-judge court).

6 State licensing of the medical professions is a good example.

The Secretary recently promulgated a bloodborne pathogens stand-

ard regulating occupational exposure to blood or other potentially

infectious materials. 56 Fed. Reg. 64,175 (1991), to be codified at

29 C.F.R. 1910.1030. Its concern is exclusively with safe work prac-

tices and related training. In contrast, licensing statutes such as

the Illinois Dental Practice Act, Til. Ann. Stat. ch. 111, paras. 2301-

2357 (Smith-Hurd 1991), the Illinois Nursing Act of 1987, Ill. Ann.

Stat. ch. 111, paras. 3501-3549 (Smith-Hurd 1991), and the Illinois

Medical Practice Act of 1987, Ill. Ann. Stat. ch. 111, paras. 4400-1

to 4400-63 (Smith-Hurd 1991), do not relate primarily to the occu-

pational safety and health issues addressed in the federal standards,

but rather to ensuring for the general public that health service

providers provide adequate and competent services.

health domain, or comply with the carefully crafted state

plan requirements set forth in Section 18."

3. a. This Court should reject the tests of the First,

Second, and Third Circuits. Those courts 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 addressed

by an OSHA standard and the State has not submitted a

Section 18(b) state plan—if the regulatory requirement

at issue also protects non-workers. Those courts have

developed three different analytical approaches for dis-

tinguishing state laws that protect only workers from

those that protect a broader category of persons, but

their common failing--in contradiction to fundamental

preemption principles, see, e.g., Ingersoll-Rand Co. V.

McClendon, 111 S. Ct. 478, 482 (1990'!—is that they

focus principally on the state objective without regard to

the federal objective. See Associated Indus. v. Snow, 898

F.2d 274, 279 (1st Cir. 1990); Environmental Encapsu-

lating Corp. Vv. City of New York, 855 F.2d 48, 57 (2d

Cir. 1988): Manufacturers Ass’n of Tri-County v. Knep-

per, 801 F.2d 130, 138 (3d Cir. 1986), cert. denied, 484

U.S. 815 (1987); New Jersey State Chamber of Com-

merce V. Hughey, 774 F.2d 587 (3d Cir. 1985).

Although those courts disagree as to whether one should

look to whether the “primary purpose” of the state law

'7 For example, in the hazardous waste area, the Secretary would

not purport to preempt state standards clearly directed at environ-

mental protection outside the workplace, such as the establishment

of a program to promote the recycling and treatment of hazardous

and solid wastes, or requiring an owner or operator of a facility to

report releases of hazardous chemicals. See, e.g., the Illinois Haz-

ardous and Solid Waste Recycling and Treatment Act, Ill. Ann. Stat.

ch. 127, paras. 2703-1—-2703-8 (Smith-Hurd 1991), and the Illi-

nois Emergency Planning and Community Right to Know Act, IIL.

Ann, Stat. ch. 111!., paras. 7701-7719 (Smith-Hurd 1991). To the

extent that such requirements have any impact on worker health

and safety, it is only incidental, and, more importantly, is the result

of the requirements’ impact on the general public as a whole.

is to protect workers or the public, Manufacturers Ass’n

of Tri-County, 801 F.2d at 138, or to whether the law

has a “substantial purpose apart from protecting * * *

workers,” Environmental Enscapulating Corp., 855 F.2d

at 57, or to whether the “effect” of the state law is

“solely” to protect workers, Snow, 898 F.2d at 279-280,

they agree that Section 1&8(b) does not generally pre-

empt occupational safety and health requirements that

protect both workers and non-workers. This approach

cannot be reconciled with the clear statutory command

that state standards relating to the same issue as federal

Standards are preempted unless they are part of an ap-

proved state plan.

b. By contrast, the Seventh Circuit’s approach is con-

sistent with the Secretary’s position. Most importantly,

the court’s analysis—like that of the Secretary’s—prop-

erly focuses on the OSH Act and the effect of the

State regulation on occupational safety and health issues

addressed in the related OSHA standard.'* The court

first determined that “an OSHA standard exists, and the

State has not submitted a section 18 plan.” Pet. App. 19.

Analyzing Illinois’ 4000-hour experience requirement (the

only state law provision contested on appeal that the dis-

trict court squarely addressed), the court found that it

constituted a worker protection regulation that was “di-

rectly, clearly, and substantially” related to the OSHA

standard. /d, at 29. Because it was not possible to sep-

'*“[T]he question whether a certain state action is preempted

by federal law is one of congressional intent.” not state intent.

Ingersoll-Rand, 111 S. Ct. at 482 (quotation marks and citations

omitted; emphasis added). As this Court has said, “state law may

[not] frustrate the operation of federal law as long as the state

legislature * * * had some purpose in mind other than * * * frus-

tration * * * [S]uch a doctrine would enable state legislatures to

nullify nearly all unwanted federal legislation by simply publishing

a legislative committee report articulating some state interest or

policy—other than frustration of the federal objective—that would

be tangentially furthered by the proposed state law.” Perez V.

Campbell, 402 U.S. 637, 651-652 (1971).

arate its “worker health and safety goal’”’ from the “pub-

lic health and safety goal,” ibid.,"’ the court concluded

that Illinois’ failure to include that requirement as a

part of a state plan, in accordance with Section 18(b),

rendered it unenforceable.

The Seventh Circuit’s verbal formulation differs some-

what from that of the Secretary. Nonetheless, we view

the “direct, clear, and substantial” relationship test to be

substantially the same as the Secretary’s “primary pur-

pose or effect” test.“’ We differ with the Seventh Circuit

to the extent that the court’s test altogether bars consid-

eration of a state law’s purpose. Although we share that

court’s skepticism regarding the advisability of attempt-

ing to derive subjective legislative intent, a state law that

states as a primary purpose the protection of worker

health ought not necessarily to be saved because it appears

to be ineffective, i.e., that it may not achieve its proposed

effects. Moreover, we do not believe that a factual in-

quiry is required before a state law that proclaims a

primary purpose to regulate worker safety ‘and is re-

lated to an existing federal standard) is invalidated.

1% Since OSHA standards apply only in the context of protecting

worker safety, the court of appeals was correct to determine whether

the 4000 hours requirement was only partially preempted. We agree,

moreover, with the court of appeals that the worker protection and

non-worker protection aspects of the requirements could not be

disentangled, and that the provision had to stand or fall as a whole.

That analysis, however, is separate from the state-law question

whether the invalid portions of Illinois’ legislative scheme are

severable. See, e.g., Watson Vv. Buck, 313 U.S. 287, 395-396 (1941) ;

Environmental Enscapulating Corp. Vv. City of New York, 855 F.2d

48, 59-60 (2d Cir. 1988). That issue, which the court of appeals

did not address, is not presented at this stage of the litigation.

20 The only difference is that the Secretary’s formulation requires

invalidation of a state law where the primary purpose is to affect

worker health and safety, while the Seventh Circuit’s test focuses

only on the effects of the law. The “purpose” prong of the Secre-

tary’s test does not focus on the subjective intent of the state law

at issue, however, but rather on the State’s stated purpose in en-

acting a statute.

Thus, althouzh separate consideration of “purpose” and

‘effects will in most cases be unnecessarv—and_ the

Seventh Circuit’s impact approach coterminous with the

Secretary’s—the stated purpose of a state law can be

relevant in limited circumstances. Notwithstanding this

minor and limited difference between the Secretary's

approach and the Seventh Cireuit’s, we believe that the

Seventh Circuit’s holding that Section 18(b) preempts

state safety and health laws that have a clear and sm

stantial impact on worker health and safety, even though

they also regulate the public health and safety, is correct

4. We agree with the Seventh Cireuit that the 4000

hour experience requirement adopted by the State of IIli-

nois 1S an occupational health and safety standard relat-

ing to the federal OSHA standard in effect for hazardous

Waste employment. By its terms, it has a substantial and

direct impact, or a primary effect, upon the safety “prac-

tices” of hazardous waste workers in Illinois. See $38)

29 U.S.C. 65218) (defining occupational safety and

health standard). The OSHA standard, however requires

only “a minimum of 40 hours of instruction off the site

and a minimum of three days actual field experience” for

equipment operators. See 29 C.F.R. 1910.120(e) (3) (i) -

see generally 29 C.F.R. 1910.120(e). Although it supple-

ments the federal requirements, the State’s requirement

therefore relates to the issue covered by the federal

standard. Further, the requirement that a crane oper-

ator be accompanied and supervised by another worker

for the first 4000 hours of his experience is designed to

and will, affect the competence and skill of such workers

so that their work environment will be safer for both

them and their fellow workers." Thus, we agree with the

- Although Judge Easterbrook may be correct that a 4000 hours

training requirement may at some point pass the point of diminish-

ing returns with respect to its impect on worker safety, th |

not change the fact that the requirement’s effect up to that oint

will be substantial and direct. The fact that the State pon ee

overregulated does not mean that the regulation does hoy say :

primary effect of protecting worker safety. It would be odd to hold

that a State requirement that goes too far in attempting to protect

at does

Seventh Circuit that the 4000 hours requirement cannot

supplement the federal training and experience require-

ments absent submission of a state plan.

CONCLUSION

The decision of the Seventh Circuit should be affirmed.

Respectfully submitted.