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

No. 90-1676 pr emange

IN THE

Supreme Court of the United States

October Term, 1990

MARY GADE, Director of the Illinois Environmental Protection

Agence

Petitioner,

NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

BRIEF OF THE STATES OF NEW YORK, CONNECTICUT,

DELAWARE, MAINE, MARYLAND, MASSACHUSETTS,

MICHIGAN, NEW JERSEY AND OHIO AS AMICI CURIAE

IN SUPPORT OF PETITIONER

ROBERT ABRAMS

Attorney General of the

State of New York

Attorney for Amici Curiae

120 Broadway — 3d Floor

New York, New York 10271

(212) 341-2711

JERRY BOONE

Solicitor General

Counsel of Record

JANE LAUER BARKER

Assistant Attorney General

In Charge of Labor Bureau

RICHARD CORENTHAL

\ssistant Attorney General

Of Counsel

(Additional List of Counsel On Inside Cover)

RICHARD BLUMENTHAL

Attorney General of Connecticut

55 Elm Street

Hartford, Connecticut 06106

CHARLES M. OBERLY, III

Attorney General of Delaware

820 North French Street

Wilmington, Delaware 1980]

MICHAEL E, CARPENTER

Attorney General of Maine

State House Station 6

Augusta, Maine 04333

J. JOSEPH CURRAN, Jr.

Attorney General of Maryland

200 Saint Paul Place

Baltimore, Maryland 21202

SCOTT HARSHBARGER

Attorney General of

Massachusetts

One Ashburton Place

Boston, Massachusetts 02108

FRANK J. KELLY

Attorney General of Michigan

Law Building

525 West Ottawa

P. O. Box 30212

Lansing, Michigan 48909

ROBERT J. DEL TUFO

Attorney General of New Jersey

Richard J. Hughes

Justice Complex

25 Market Street, CN 112

Trenton, New Jersey 08625

LEE FISHER

Attorney General of Ohio

State Office Tower

30 East Broad Street

Columbus, Ohio 43266-0410

TABLE OF CONTENTS

PAGE

I ii

Eg eee cece rere eeeee |

ala ati os ee 6 boo oo} 6 3

Conclusion

ARGUMENT .-

THE OSH ACT DOES NOT PREEMPT

STATE LICENSING LAWS WHICH

HAVE THE DUAL PURPOSE OF SAFE-

GUARDING THE ENVIRONMENT AND

THE PUBLIC'S WELFARE AND

ENSURING WORKER HEALTH AND

a ea eee 4

. The OSH Act Does Not Expressly

Preempt State Licensing Laws

Which Protect The Public

Welfare And The Environment,

Even Though Such Laws May

Also Affect The Occupational

Health And Safety Of Hazardous

Cg eee 6

. The OSH Act Does Not Impliecly

Preempt State Licensing Laws

Which Are Consistent With OSHA

Standards And Which Advance

Ee nr 12

‘i

TABLE OF AUTHORITIES

Cases

Associated Indus. of Mass. v. Snow,

898 F.2d 274 (1st Cir. 1990)

Berardi v. Getty Refining &

Marketing Co., 107 Misc.2d 451,

435 N.Y.S.2d 212 (Richmond Co. 1980) ......

California Coastal Com'n v. Granite

Rock Co., 480 U.S. 572 (1987) ............

English v. General Electric Co..,

PAGE

ee eae CE a ee aes hehe ce eee 11

Environmental Encapsulating Corp. v.

City of New York, 855 F.2d 48 (2d

ee PUNE a scat cree ee ae heres a eel 4

Florida Lime & Avocado Growers, Inc.

v. Paul, 373 U.S. 132 (1963) ............

Goldfarb v. Virginia State Bar,

421 U.S. 773, reh'g denied,

ee

oo Meer er ee ree Pree e rT rT rr

Hillsborough County, Florida v.

Automated Medical Laboratories, Inc..,

O73 US. TOT GOSS) 2... cc cece cceee 5,

Hines v. Davidowitz, 312 U.S. 52

SE gat ea a eee ar ree hel en ee

Jones v. Rath Packing Corp.,

490 US. SID CISTT) 2 cnc ccc ces ascece

LePore v. National Tool and Mfg. Co.,

224 N.J. Super. 463, 540 A.2d 1296

(App. Div. 1988), aff'd, 115 N.J.

226, 557 A.2d 1371, cert. denied,

493 US. S46 (ISGP) 2. ccc ccc ccc ccnes

Manufacturers Ass'n of Tri-County

v. Knepper, 801 F.2d 139 (3d Cir.

1986), cert. denied, 484 U.S. 815

ne skhneeaeease eh 00s a0 8 ops

National Solid Wastes Management

Ass'n v. Killian, 918 F.2d 671

, 3° A. ae a a a

New Jersey State Chamber of Commerce

v. Hughey, 774 F.2d 587 (3d Cir.

1985), appeal after remand, 868 F.2d

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

|. Ser re Se ee a

P & Z Co. v. District of Coiumbia,

408 A.2d 1249 (D.C. 1979) ........46-.

Pacific Gas & Electric Co. v.

State Energy Resources Conser-

vation & Dev. Comm'n, 461 U.S.

Vo) eee ee a

PAGE

iV

PAGE

People v. Chicago Magnet Wire,

126 Ill.2d 356, 534 N.E.2d 962

(1987), cert. denied sub nom.

Asta v. Illinois, 493 U.S. 809

(1989)

Peoples v. Hegedus, 432 Mich. 598,

443 N.W.2d 127 (1989)

People v. Pymm, 76 N.Y.2d 511

(1990), 561 N.Y.S.2d 687, cert.

denied, 111 S. Ct. 958 (1991) ............... 7

Ray v. Atlantic Richfield Co..,

SP I divs an 4 ke ho abe owed 5, 13

Rice v. Santa Fe Elevator Corp.,

Ey 5, 8, 12

Sabine Consol. Inc. v. State,

756 S.W.2d 865 (Tex. Crim. App.

EE ee oa ek kee Ok oe x eee 7

Shimp v. New Jersey Bell Telephone,

145 N.J. Super. 516, 368 A.2d

408 (1976)

State ex rel. Cornellier v. Black,

144 Wis.2d 745, 425 N.W.2d 21 (1988) ....... 7

West Virginia Manufacturers Association

v. State of West Virginia, 714 F.2d

308 (4th Cir. 1983)

PAGE

Wisconsin Public Intervenor v. Mortier,

Tig @e me), | eee 5. 8, 11, 12, 13

Statutes, Rules and Regulations

Atomic Energy Act, 42 U.S.C.

yo? f eee errr ree eee eee eee 11

Comprehensive Environmental Response,

Compensation and Liability Act of

1980, 42 U.S.C. § 9601 et seg. 2... - ee ee ees 9

Hazardous Waste Operations and

Emergency Response Standard,

29 C.F.R. § 1910.120 (1989) ..........---. passim

Illinois Hazardous Waste Crane and

Hoisting Equipment Operators Licensing

Act, Ill. Rev. Stat. ch. 111, 4 7701

Ga ne Cee ee ee ee

Pub. L. No. 99-499, Title I, § 126(a),

100 Stat. 1690 (1986)[as amended Pub. L.

No. 100-202, § 101(f), Title Il, 101 Stat.

LSSO-29B8 (LGBT 2 ccc cece ereecess 7

Superfund Amendments and Reauthorization

Act of 1986, 42 U.S.C. § 9601 et seg. ....... passim

U.S. Occupational Safety and Health Act,

SO US.C. 6 GBS GOR ccc eee nce passim

Miscellaneous

94 Fed. Reg. 9294, 9315 (March 5, 1989)

No. 90-1676

PAGE IN THE

. Supreme Court of the United States

October Term, 1990

MARY GADE, DIRECTOR of the ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Petitioner,

-against-

NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION,

Respondent.

On Writ of Certiorari to the United States Court

of Appeals For The Seventh Circuit

BRIEF OF THE STATES OF NEW YORK,

CONNECTICUT, DELAWARE, MAINE, MARYLAND,

MASSACHUSETTS, MICHIGAN, NEW JERSEY AND

OHIO AS AMICI CURIAE IN SUPPORT OF

PETITIONER

Interest of Amici Curiae

This brief is filed on behalf of nine states as amici curiae,

pursuant to Rules 37.1 and 37.5 of the Supreme Court Rules,

in support of the brief filed by petitioner Mary Gade, Director

of the Illinois Environmental Protection Agency.

2

The issues raised on this appeal are of importance to all

states, including New York and the eight other amici curiae

joining in this brief. The Court of Appeals for the Seventh

Circuit held in this case that the U.S. Occupational Safety and

Health Act ("OSH Act"), 29 U.S.C. § 655 et seg., preempts a

state from enforcing a licensing law which serves a dual

purpose, i.e., safety of workers and protection of the

environment and the public welfare.

The states have a vital interest in protecting their

environment, the health of their residents and the safety of their

natural resources. The police power of the states has

historically included the right to regulate and license trades and

professions which affect these areas of interest. More recently,

with the discovery of the harmful health effects which hazardous

substances have upon the public and the environment, states

have taken an active role in regulating new occupations and

activites in the burgeoning field of environmental protection,

such as pesticide appligators, asbestos handlers and, as in this

case, hazardous waste site workers. Preemption of these state

licensing and permit laws by the OSH Act would adversely

affect states' efforts to ensure adequate protection of the

environment and the health and welfare of their residents.

3

Summary of Argument

The state laws in issue in this case, the Illinois Hazardous

Waste Crane and Hoisting Equipment Operators Licensing Act,

lil. Rev. Stat. ch. 111, 4 7701 et seg. ("the Operators Act")

and the Illinois Hazardous Waste Laborers Leasing Act, Ill.

Rev. Stat. ch. lll, 4 7801 et seg. (the "Laborers Act") (collec-

tively referred hereafter to as "lIllinois' hazardous waste

licensing requirements"), have as a substantial and legitimate

purpose the protection of the environment and the safeguarding

of the public welfare. A state such as Illinois should be able to

exercise its traditional police power to license and regulate

occupations and professions affecting these areas of significant

state interest unless Congress has expressly or impliedly

preempted them from doing so. Here, the OSH Act expressly

preempts the states only from asserting jurisdiction over

occupational safety and health standards. Since the Illinois laws

are not occupational safety and health standards, they are not

expressly preempted by the OSH Act. Although the Illinois

laws implicate the occupational safety and health of employees

in the workplace, the OSH Act does not reflect any clear and

manifest intent of Congress to expressly preempt state laws

which have a dual purpose. Moreover, since the Illinois'

hazardous waste licensing requirements do not actually conflict

with the requirements of the Occupational Safety and Healthy

Administration's ("OSHA") Hazardous Waste Operations and

Emergency Response standard, 29 C.F.R. § 1910.120 (1989)

(the "hazardous waste standard"), and the hazardous waste

standard is limited in scope to protecting hazardous waste

workers and not the general public, the OSH Act does not

impliedly preempt Illinois' hazardous waste licensing require-

ments. Accordingly, the judgment of the United States Court

of Appeals for the Seventh Circuit, which ruled that Illinois’

Operators and Laborers Acts are preempted by the OSH Act,

should be reversed.

4

ARGUMENT

THE OSH ACT DOES NOT PREEMPT STATE

LICENSING LAWS WHICH HAVE THE DUAL

PURPOSE OF SAFEGUARDING THE ENVIRONMENT

AND THE PUBLIC WELFARE AND ENSURING

WORKER HEALTH AND SAFETY

States, in the traditional exercise of their police powers, have

imposed licensing requirements on occupations engaged in

activities affecting the public health, as well as the environment.

Goldfarb v. Virginia State Bar, 421 U.S. 773, reh'g denied,

423 U.S. 886 (1975). In Goldfarb, the Court declared that

"States have a compelling interest in the practice of professions

within their boundaries, and that as part of their power to

protect the public health, safety and other valid interests, they

have broad power to establish standards for licensing prac-

titioners and regulating the practice of professions." /d. at 792.

With the discovery of the harmful health effects which

hazardous substances have upon the public, the environment

and natural resources, states have begun to regulate the work

of new occupations and professions, such as the removal of

asbestos from buildings and application of pesticides, which

involve risks to the public welfare and the environment.!

' To safeguard the environment and the public welfare, states have

established minimum training requirements, safe work practices and

licensing requirements for professions engaged in work involving the

potential exposure of hazardous and toxic substances to the environment.

See Associated Indus. of Mass. v. Snow, 898 F.2d 274 (Ist Cir. 1990)(state

law establishing system for training, licensure and certification of individuals

involved in asbestos abatement work); Environmental Encapsulating Com. v.

City of New York, 855 F.2d 48 (2d Cir. 1988)(municipal regulations

requiring training and certification of asbestos abatement workers); New

Jersey State Chamber of Commerce v. Hughey, 774 F.2d 587 (3d Cir. 1985),

appeal after remand, 868 F.2d 621 (3d Cir.), cert. denied, 492 U.S. 920

(1989); and Manufacturers Ass'n of Tri-County v. Knepper, 801 F.2d 130

(3d Cir. 1986), cert. denied, 484 U.S. 815 (1987)(training, chemical

(continued...)

ne

5)

[llinois' hazardous waste licensing requirements represent a

traditional exercise of the State's police power to regulate

professions which affect these areas of state interest. Work on

hazardous waste sites presents dangers to the surrounding com-

munity, the environment and hazardous waste workers. The

public welfare is threatened by inadequate and unsafe work

practices on hazardous waste sites, such as the failure to

properly decontaminate workers and equipment and the failure

to safely secure hazardous waste shipments. Illinois' hazardous

waste licensing requirements address these risks by imposing

testing and experience requirements on laborers and persons

operating cranes and hoists capable of lifting more than two

tons at hazardous waste sites.

Such an exercise of the traditional police powers of the states

is not preempted by federal laws unless it is "the clear and

manifest intent of Congress" to do so. Ray v. Atlantic Richfield

Co., 435 U.S. 151, 157 (1978)(citing Rice v. Santa Fe Elevator

Corp., 331 U.S. 218, 230 (1960)). Congress may manifest its

intent to preempt state or local authority in a given area by

expressly stating that intention. Wisconsin Public Intervenors v.

Mortier, 111 S. Ct. 2426, 2481 (1991); Jones v. Rath Packing

Co., 430 U.S. 519, 525 (1977); Hillsborough County, Florida

v. Automated Medical Laboratories, Inc., 471 U.S. 707 (1985).

Where Congress has not expressly preempted state regulation

in a specific area, a state law may be impliedly preempted if

Congress has occupied the field or if the state law actually

conflicts with federal law. Pacific Gas & Elec. v. Energy

Resources Comm'n, 461 U.S. 190, 204 (1983). Here, the OSH

Act has neither expressly nor impliedly preempted the states

from enforcing laws which have the dual purpose of

'(...continued)

inventory and labelling requirements in state worker and community right to

know laws). The employment-related requirements in these state and local

laws, in many cases, are inextricably intertwined and necessary to the

effectuation of their overriding purpose to protect the public welfare.

6

safeguarding the environment and the public welfare, and

protecting workers' health and safety.

A. The OSH Act Does Not Expressly Preempt State

Licensing Laws Which Protect The Public

Welfare And The Environment, Even Though

Such Laws May Also Affect The Occupational

Health And Safety Of Hazardous Waste Workers

In applying the preemption principles laid down by this

Court, the Seventh Circuit concluded that the OSH Act

expressly preempts state licensing laws which have a dual

purpose of protecting the public welfare and the environment,

as well as protecting workers. The court held that the Illinois'

hazardous waste licensing requirements are preempted by the

OSH Act because their effect on employer-employee obligations

with respect to worker safety cannot be separated from the

regulations' public health and environmental concerns.

National Solid Wastes Management Association v. Killian, 918

F.2d 671, 684 (7th Cir. 1990). This conclusion was

erroneous.

The OSH Act expressly preempts only those laws which

assert jurisdiction over occupational safety and health issues

with respect to which a federal standard is in effect.? See

? The courts have consistently recognized that a state may address worker

safety and health issues for which no federal standards are in effect. See

West Virginia Manufacturers Association v. State of West Virginia, 714 F.2d

308, 313-314 (4th Cir, 1983)(West Virginia statute requiring employers to

disclose to employees hazardous substances not preempted); Berardi v. Getty

Refining & Marketing Co., 107 Misc.2d 451, 435 N.Y.S.2d 212 (Richmond

Co. 1980)(New York State statute obligating contractors to provide safety

devices or equipment during construction not preempted); Shimp v. New

Jersey Bell Telephone, 145 N.J. Super. 516, 368 A.2d 408 (1976)(OSH Act

does not preempt state enforcement of state of New Jersey common law duty

(continued...)

-

section 18(a) of the OSH Act, 29 U.S.C. § 667(a). No federal

standard is in effect with respect to the protection of the public

from the dangers involved in the work of hazardous waste

employees. Significanty, the OSHA standard in question,

governing hazardous waste, was promulgated at the direction of

Congress as part of the Superfund Amendments and

Reauthorization Act of 1986 ("SARA"), 42 U.S.C. § 9601 et

seq., SO as to establish standards solely for the "health and

safety of employees." SARA, Pub. L. No. 99-499, Tite I, §

126(a), 100 Stat. 1690 (1986) [as amended Pub. L. No. 100-

202, § 101(f), Title Il, 101 Stat. 1329-198 (1987)]. OSHA's

hazardous waste standard is limited by its terms to worker

protection issues (e.g., standards for site analysis, training,

medical surveillance, protective equipment, engineering

controls, maximum exposure limits, informational and new

technology programs, handling of hazardous wastes,

decontamination procedures, emergency responses, minimum

illumination of worksite, monitoring of employee exposure levels

and sanitation at temporary worksites). 29 C.F.R. § 1910.120

(1989). See also 54 Fed. Reg. 9294, 9315 (March 5, 1989).

Indeed, OSHA expressly denied broad preemptive intent in

(...continued)

to provide safe workplace); P & Z Co. v. Distnct of Columbia, 408 A.2d

1249 (D.C. App. 1979) (OSH Act does not preempt District of Columbia

employee injury reporting requirements); LePore v. National Tool and Mfg.

Co, 224 N.J. Super. 463, 540 A.2d 1296, 1306 (App. Div. 1988), afd,

115 N.J. 226, 557 A.2d 1371 (per curiam), cert. denied, 493 U.S. 954

(1989)(Common law tort claim for wrongful discharge for reporting unsafe

workplace conditions not preempted by OSH Act). The courts have also

ruled that section 18 of the OSH Act does not preempt state criminal laws.

People v. Chicago Magnet Wire, 126 Ill.2d 356, 534 N.E.2d 962 (1989),

cert. denied, sub nom. Asta v. Illinois, 493 U.S. 809 (1989); People v.

Pymm, 76 N.Y.2d 511, 561 N.Y.S.2d 687 (1990), cert. denied, sub nom

Pymm v. N.Y., 111 S. Ct. 958 (1991); People v. Hegedus, 432 Mich. 598,

443 N.W.2d 127 (1989); State ex rel. Comellier v. Black, 144 Wis. 2d

745, 755, 425 N.W.2d 21 (1988). But see Sabine Consol., inc. v. State,

756 S.W.2d 865 (Tex. Crim. App. 1988).

8

promulgating the hazardous waste standard. 54 Fed. Reg. at

9315.

Thus, the OSH Act addresses only occupational safety and

health issues. There is nothing in the statute which supports

the Seventh Circuit's conclusion that a state law which protects

the public welfare and the environment is preempted if it also

has the effect of regulating occupational health and safety in the

workplace. Section 18 of the OSH Act and OSHA's hazardous

waste standard are silent as to their preemptive effect on state

laws, such as the Illinois Operators and Laborers Acts, which

have the dual purpose of protecting workers and the public

welfare. Indeed, the Seventh Circuit acknowledged that the

language of section 18 "does not indicate whether a state law

or regulation that purports to serve a dual purpose is

preempted." 918 F.2d at 677. As this Court has repeatedly

stated, "[mlJere silence...cannot suffice to establish a 'clear and

manifest purpose' to pre-empt local authority." Wisconsin

Public Intervenor v. Mortier, 111 S. Ct. at 2483 (quoting Rice

v. Santa Fe Elevator Corp., 331 U.S. at 230).

lo be sure, section 18(b) of the OSH Act does provide that

where a federal standard is already in effect, a state may submit

its own plan for the development and enforcement of workplace

health and safety to the Secretary of Labor for approval.

However, contrary to the Seventh Circuit's conclusion, this

provision does not mean that a state must first obtain federal

approval before its seeks to enforce all regulations which have

some effect on worker safety and health. Section 18(b) relates

only to the development and enforcement of occupational safety

and health standards, and does not speak to state enforcement

of licensing laws which have, as a broader purpose, the

protecton of the environment and the public welfare.

> See 54 Fed. Reg. at 9315 (stating that OSHA sought to "refrain from

limiting state policy options by developing a rule that permits flexibility on

the part of the States...").

9

Moreover, the legislative history surrounding OSHA's

promulgation of the hazardous waste standard fails to support

the Seventh Circuit's conclusion. As noted previously, under

SARA, OSHA was directed to promulgate the hazardous waste

standard. There is no evidence in the legislative history of

SARA that Congress intended to preempt state or local laws

which have the dual purpose of protecting the public welfare

and the environment, and worker safety. Congress was solely

concerned with protecting employees engaged in hazardous

waste operation. SARA § 126, 100 Stat. 1690 (1986). Signifi-

cantly, the legislative history of SARA indicates that Congress,

in general, recognized that states have a vital interest in state

environmental guidelines. Indeed, in SARA, Congress took a

number of steps to facilitate public and state participation in the

problem of hazardous waste site cleanup.*

In support of its conclusion finding preemption, the Seventh

Circuit nevertheless noted that:

The original Senate version of what is now section 18

would have permitted states without having to obtain

approval of a state plan, to impose during a

transitional period stricter requirements than those

established by OSHA. But that provision was

eliminated from the final draft of the bill.

918 F.2d at 677.

* For example, Congress added a new section 117 to the Comprehensive

Environmental Response, Compensation and Liability Act of 1980

("CERCLA"), 42 U.S.C. § 9601 et seg., added by SARA § 117, 100 Stat.

1654, which requires the Environmental Protectuon Agency to make early

disclosure of its proposed remedial action plans, to solicit public input and

to explain changes in response action. In addition, Congress gave the states

a major role in the remedy selection process under section 121 of CERCLA.

CERCLA § 121(f), 42 U.S.C. § 9621(f), added by SARA § 121, 100 Stat.

1672.

10

However, the mere elimination of a provision which would

have permitted states to impose stricter occupational protection

requirements than those imposed by OSHA, without having to

obtain OSHA's approval of a state plan during a transitional

period to review the state plan, can hardly denote a "clear and

manifest" purpose to preempt state laws which have the

broader goal of protecting the environment and the public

welfare.° Thus, contrary to the conclusion of the Seventh

Circuit, there is nothing in the legislative history to establish that

Congress intended to preempt states from enforcing laws which

have, as a dual purpose, the protection of the environment and

the public welfare and worker safety in the area of hazardous

waste site cleanup.

The Seventh Circuit's conclusion is inconsistent with this

Court's repeated declaration that preemption will be found only

where there is a "clear and manifest purpose" to displace state

law. Hillsborough County v. Automated Medical Laboratories,

Inc., 471 U.S. at 715 (emphasis added). See also Gregory v.

Ashcroft, 111 S. Ct. 2395, 2410 (1991). In contrast to this

standard, the Seventh Circuit considered only whether the state

law “constitutes, in a direct, clear and substantial way,

regulation of worker health and safety." 918 F.2d at 679.

Under such an approach, state laws intended to protect public

safety or the environment will be stricken, despite the fact that

Congress did not intend to preempt such laws, simply because

they also touch upon worker health and safety.

* As the Seventh Circuit recognized, "{dlespite the deletion of this

provision...section 18 does not evidence a congressional intent to achieve

uniformity in worker health and safety regulation: if uniformity of standards

were a principal goal of the Act, state plans certainly would not be an ideal

mechanism to achieve that purpose." 918 F.2d at 677 (citation omitted).

If uniformity was not Congress’ concern in enacting section 18, Congress

would not have intended that state regulations, which may impose stricter

work requirements so as to protect the public welfare, be expressly

preempted.

11

The Seventh Circuit's focus on the "actual effect" on

employer-employee obligations, 918 F.2d at 679, and its

reliance on English v. General Electric Co., 496 U.S. 72 (1990)

and Pacific Gas & Elec. Co. v. State Energy Resources

Conservation and Dev. Comm'n, 461 U.S. at 190, is misplaced.

Both of those cases involved construction of the Atomic Energy

Act, 42 U.S.C. § 2011 et seg., which contains a broad

preemption clause and expressly vested the federal government

with exclusive authority over the regulation of nuclear safety.

Determining whether the state law has an "actual effect" on

nuclear safety was appropriate in those cases because the field

of nuclear safety is exclusively regulated by the federal

government and a broad preemption provision is involved. But

this "actual effect" analysis is simply not appropriate when

Congress, as here, did not intend to occupy entirely a given

field or displace state regulation so long as the state laws do not

conflict with federal law. Wisconsin Public Intervenor v. Mortier,

L111 S.Ct. at 2476; California Coastal Com'n v. Granite Rock

Co., 480 U.S. 572 (1987). A consideration of whether Illinois'

hazardous waste licensing requirements have a substantial effect

on the federal regulatory scheme is more appropriate in the

context of implied preemption where the issue is whether the

state and federal laws actually conflict.

Finally, the Seventh Circuit's decision conflicts with the well

reasoned decisions of three other circuits which have addressed

the same issue. Associated Indus. of Mass. v. Snow, 898 F.2d

274 (1st Cir. 1990); Environmental Encapsulating Corp. v. City

of New York, 855 F.2d 48 (2d Cir. 1988); New Jersey State

Chamber of Commerce v. Hughey, 774 F.2d 587 (3d Cir.

1985), cert. denied, 492 U.S. 920 (1989); Manufacturers Ass'n

of Tri-County v. Knepper, 801 F.2d 130 (3d Cir. 1986), cert.

denied, 484 U.S. 815 (1987). In Associated Indus. of Mass. v.

Snow, the First Circuit held that Massachusetts regulations

establishing a system for training, licensure and certification of

asbestos abatement workers had the effect of protecting the

public and therefore were not expressly preempted by the OSH

12

Act. 898 F.2d at 281. In Environmental Encapsulating Corp.

v. City of New York, the Second Circuit held that to the extent

municipal regulations imposing training and_ certification

requirements on asbestos abatement workers have a "legitimate

and substantial purpose" apart from promotion of occupational

health and safety, there is no preemption by the OSH Act. 855

F.2d at 57. In New Jersey State Chamber of Commerce v.

Hughey and Manufacturers Association of Tri-County v. Knepper,

the Third Circuit upheld parts of New Jersey's and

Pennsylvania's community and worker nght to know laws which

had the promotion of environmental safety as their primary

purpose. These three decisions recognize the interest of the

States in retaining their historic police powers to protect the

public welfare and the environment.

Thus, neither the language nor the legislative history of the

OSH Act, SARA or OSHA's hazardous waste standard

expressly preempts Illinois' hazardous waste licensing laws. In

the face of the presumption that state laws regulating environ-

mental safety matters can co-exist with federal law, Hillsborough

County, Florida v. Automated Medical Laboratories, Inc., 471

U.S. at 716, the Seventh Circuit's decision unduly restricts

states from exercising their traditional police powers.

B. The OSH Act Does Not Impliedly Preempt State

Licensing Laws Which Are Consistent With

OSHA Standards And Which Advance OSHA's

Goals

Where Congress has not expressly displaced state regulation

in a specific area, a state will be impliedly preempted from such

regulation only if Congress has occupied a field with "a scheme

of federal regulation so persuasive as to make reasonable the

inference that Congress left no room for the states to

supplement it.'"_ Wisconsin Public Iniervenor v. Mortier, 111 S.

Ct. at 2481 (quoting Rice v. Sante Fe Elevator Corp., 331 U.S.

13

at 230); Pacific Gas & Electric Co. v. State Energy Resources

Conservation and Dev. Comm'n, 461 U.S. at 204. Moreover,

the state law is preempted only to the extent that it actually

conflicts with federal law. Wisconsin Public Intervenor v.

Mortier, 111 S. Ct. at 2482; Florida Lime & Avocado Growers,

Inc. v. Paul, 373 U.S. 132, 142-143 (1963).

A conflict will be found "where compliance with both

federal and state regulations is a physical impossibility

or where the state 'law stands as an obstacle to the

accomplishment and execution of the full purpose and

objectives of Congress.'"

Ray v. Atlantic Richfield Co., 435 U.S. at 158 (quoting Hines

v. Davidowitz, 312 U.S. 52, 67 (1941)).

Applying these standards, Illinois' hazardous waste licensing

requirements are not impliedly preempted.° They neither

conflict with OSHA's hazardous waste standard nor frustrate its

regulatory goals and purpose. _ Illinois' regulations merely

impose additional requirements on certain hazardous waste

occupations in order to address potential environmental hazards

and public health concerns. Indeed, given the fact that SARA

encourages regulatory partnership between federal, state and

local governments in the area of hazardous waste site clean up,

see n. 4 supra, these state regulations further the goals of the

OSHA hazardous waste standard.

OSHA standards and regulations have co-existed with state

or local laws regulating trades or professions involving the

public welfare since the enactment of the OSH Act in 1970.

For example, although the OSH Act regulates occupational

® The Seventh Circuit did not explicitly address the question of implied

preemption. However, the Seventh Circuit concluded that Illinois' hazardous

waste licensing requirement "could result in duplication and unwarranted

costs to workers and employers." 918 F.2d at 679.

14

safety and health in plumbing and electrical work, see 29

C.F.R. § 1910.301 Subpart S, OSHA has never sought to

preempt local licensing regulations involving these professions.

Neither SARA, the OSH Act nor OSHA's hazardous waste

standard implies preemption of state licensing laws, such as

those challenged here, which have the dual purpose of

protecting the public welfare and protecting worker safety. To

the contrary, no federal law seeks to establish licensing

requirements for hazardous waste site workers in order to

protect the environment and the public welfare. Federal law

plainly does not occupy the field of hazardous waste site

regulation and the OSH Act and OSHA's hazardous waste

standard do not address the public health risks or potential

injury to the environment which may result from unqualified

and inexperienced hazardous waste site workers.

Moreover, there is no actual conflict between Illinois'

hazardous waste licensing requirements and federal law.’

Compliance with Illinois' laws and OSHA's hazardous waste

standard is not a "physical impossibility." Florida Lime &

Avocado Growers v. Paul, 373 U.S. at 142-143. Although the

illinois' requirements might impose some additional costs on

employers, one of the uncontroverted goals of these

requirements is to protect the public welfare and _ the

environment. Neither the OSH Act nor OSHA's hazardous

waste standard forbids duplicative state requirements which

have, as their goal, protection of the public safety. There is no

evidence in this case that compliance with Illinois' hazardous

waste licensing requirements actually conflicts with the OSH Act

or OSHA's hazardous waste standard.

7 There is no basis for the Seventh Circuit's statement that Ili.nois'

hazardous waste training requirements "might even conflict with OSHA's

training requirements." 918 F.2d at 679. OSHA requires participation in

an approved training course for 40 hours and Illinois requires at least 4,000

hours of work experience with crane and hoist equipment.

15

CONCLUSION

For all the foregoing reasons, this Court should reverse the

judgment of the United States Court of Appeals for the Seventh

Circuit.

Dated: New York, New York

January 30, 1992

RespecJully submitted,

ROBERT ABRAMS

ATTORNEY GENERAL of the

STATE of NEW YORK

Attorney for Amici Curiae

120 Broadway - 3d Floor

New York, New York 10271

(212) 341-2711

JERRY BOONE

Solicitor General

Counsel of Record

JANE LAUER BARKER

Assistant Attorney General

In Charge of Labor Bureau

RICHARD CORENTHAL

Assistant Attorney General

of Counsel