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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1992
- **Citation:** 505 U.S. 88

## Text

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)

IV

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 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

2
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

5
5
8
7
7

i)

bo bo

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

Section 1910.10390 _.. -

Section 1910.1200 (a) (2)
ge
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)

2

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.

4

(§ 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-

5

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

6

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,

7

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.

8

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.

4)

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

10

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

11

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.

12
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

13

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.

14

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

15

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-

16

“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-

17

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

18

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

19

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

20

—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.

21

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.

22

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).

23

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),

24

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.

25

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.

26

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).

28

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.

29

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

30

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.

KENNETH W. STARR
Solicitor General

MAUREEN E. MAHONEY
Deputy Solicitor General

WILLIAM K. KELLEY
Assistant to the Solicitor General
MARSHALL J. BREGER
Solicitor
ALLEN H. FELDMAN
Associate Solicitor

STEVEN J. MANDEL
Deputy Associate Solicitor

NATHANIEL I. SPILLER
Senior Appellate Attorney
Department of Labor

MARCH 1992

worker safety is saved from preemption, and that a requirement
that is better calibrated— going no further than necessary to have
the same effect on worker safety——is not.

W ov. S. GOVERNMENT PRINTING OFFICE 1992 312324 45342

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0103%3A10. Public record. Not legal advice.