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

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Supreme Gout, Ue

FILED

No. 90-1676 MAR 2 = i992

ee OFFICE OF IWE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

Mary GADE, Director of the Illinois

Environmental Protection Agency,

. Petitioner,

NATIONAL SOLID WASTE MANAGEMENT ASSOCIATION,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF FOR THE CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

Of Counsel: GLEN D. NAGER

STEPHEN A. BOKAT Counsel of Record

RoBIN S. CONRAD ROBERT C. GOMBAR

Mona C. ZEIBERG BETH HEIFETZ

KENNETH B. ALEXANDER JONES, DAY, REAVIS & POGUE

NATIONAL CHAMBER 1450 G Street, N.W.

LITIGATION CENTER, INc. Washington, D.C. 20005-5701

1615 H Street, N.W. (202) 879-3939

Washington, D.C. 20062 Attorneys for the

(202) 463-5337 Chamber of Commerce of the

United States of America

WILSON - Eres Painting Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

BEST AVAILABLE COPY\ =

QUESTION PRESENTED

Whether the Occupational Safety and Health Act’s pre-

emption of state regulation of issues addressed by federal

occupational health and safety standards in the absence

of an approved state plan applies to dual, as well as to

single, purpose or effect state laws.

(i)

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .............. Lhe fy ee iv

INTEREST OF THE AMICUS .......................... ren oof 1

| y rare ce 1S. ee 2

INTRODUCTION AND SUMMARY OF ARGU-

RO | ED Re a 7

EEE 10

LATION OF WORKPLACE ISSUES AD-

DRESSED BY FEDERAL HEALTH AND

SAFETY STANDARDS IN THE ABSENCE

OF AN APPROVED STATE PLAN ....... ieldeiaees 11

(l. THE ILLINOIS LICENSING STATUTES AT

ISSUE ARE PREEMPTED EVEN THOUGH

THEY ARGUABLY HAVE NON-OCCUPA-

TIONAL AS WELL AS OCCUPATIONAL

HEALTH AND SAFETY PURPOSES AND

a 21

Neen csenesesemenos 26

(iii)

TABLE OF AUTHORITIES

Cases Page

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

244 (list Cir. 1990)........ rE Eien et aa Tk 14

Asta v. Illinois, No. 88-1783 (U.S. cert. denied,

Te TD aicccisincicscnccin onisciinincdcansciaditiniiennainienneneniniecsimietinmn 2

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

CI cseios ccncssiviiassasiemstnvaccansttnmatnentanatiencaedapeseaaien - 3

Chevron U.S.A., Inc. v. Natural Resources Coun-

Off, Tene. GBF UWE. GBT CIBGGE) ...0cneccceccccccessecvecceessee. 19

Crandon v. United States, 494 U.S. 152 (1990)... 12

Environmental Encapsulating Corp. v. City of

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

Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta,

I i le: BID viicindtceseiennsisencctencienidnieibcienenion .. 20,21

Florida Lime & Avocado Growers, Inc. v. Paul,

Se Ws te I oss scces -cgiieannbenlnapinenansenontess 10

Garcia v. United States, 469 U. S. 70 (1984) | eee fa 12

Hillsborough County v. Automated Medical Lab.,

- :: & ££, eee 20

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

TINIE ccconccsvosceessssnnecsnsasaianbiniicngtyciimmeiapnlieaaemainsaneess 10, 22

Jones v. Rath Packing Co., 430 U.S. 519 (1977) 14

Lechmere, Inc. v. NLRB, 60 U.S.L.W. 4145 (U.S.

0 aaah laledinlesadaiies - 2

Maine v. Thiboutot, 448 U.S. 1 (1980) es a 10

Martin v. Ocewpational Safety and Health Review

Comm’n, 111 S.Ct. 1171 (1991) ..........-......... Skee 2

Morton v. Ruiz, 415 U.S. 199 (1974) ...... eer Sens 20

NLRB v. Curtin Matheson Scientific, Inc., 494

Ic ls 2

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. de-

Sa a eee 14

Reves v. Ernst & Young, 494 U.S. 56 (1990) . 14

Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983) 22

Trans World Airlines, Inc. v. Independent Fed’n

of Flight Attendants, 489 U.S. 426 (1989)... 2

United States v. Menasche, 348 U.S. 528 (1955) 14

TABLE OF AUTHORITIES—Continued

Page

Wisconsin Dep’t of Industry v. Gould Inc., 475

a os peu eninnasiocaglanoees 18

Wisconsin Public Intervenor v. Mortier, 111 S.Ct.

RSI RRR cry ie RANE LE Re AN Or UD add 19

Federal Statutes

Clean Air Act, 42 U.S.C. § 7401 et seq.

42 U.S.C. § 7401 (a) (3) -............. iste km SUE 18

I i ccmseneniioceondans i)

a cateeienennenionianaxs 18

Clean Water Act, 33 U.S.C. § 1251 et seq.

I aaa emenpunneniiocens 18

I i camensenesenm 18, 19

Comprehensive Environmental Response, Com-

pensation and Liability Act, 42 U.S.C.A. § 9601

I ais intcinles ence dediasnceiectienerentéuaserdubeainetecsbebiacebesuitenmcees 5

Emergency Highway Energy Conservation Act of

I sa cecocneti x

Employee Retirement Income Security Act of

Bs He ie We I BO I ovncecccccesccceccencceesss.:: 22

Equal Employment Opportunity Act of 1972, 42

FR En ee x

Federal Coal Mine Health and Safety Act of 1969,

Pub. L. 91-173, 83 Stat. 742 (1969) (codified at

30 U.S.C. § 801 et seq.) ............. sauabiskiibalaslaiaaiedaans 16

Ee a a ea 16

Federal Insecticide, Fungicide, and Rodenticide

Be Rs Ae Ie Oe cicceiinsceennencetctnighalischingse 19

Occupational Safety and Health Act of 1970, 29

U.S.C. § 651 et seq. (1988), as amended by Pub.

L. 101-508, tit. III, § 301, 104 Stat. 1388-29

(RABI A int. att eM Nt RE Ce 2

Sec. 2(b), 29 U.S.C. eee cae 3

Sec. 4(b) (4), 29 U.S.C. § 653 (b) (4) —..0 passim

Sec. 6(a), 29 U.S.C. § 666(a) ............................. 3

Sec. 6(d), 29 U.S.C. § 666(d) .............................. 3

Sec. 10, 29 U.S.C. § 659 ......... Pee ACARI AR soe 3

TABLE OF AUTHORITIES—Continued

Page

Sec. 18, 29 U.S.C. § 667 __.... ae Ne eo eee 9

Sec. 18(a), 29 U.S.C. § 667(a) —............... 3, 11, 12,14

Sec. 18(b), 29 U.S.C. § 667(b) _................00022... passim

Sec. 18(c), 29 U.S.C. § 667(c) —........ passim

Sec. 18(e), 29 U.S.C. § 667 (e) ..................... ches 4

Sec. 18(f), 29 U.S.C. § 667(f) ...........0............passim

Ss | jo) 3°. ] | eee oa 4

Sec. 28(a), 29 U.S.C. § 672(a) ............................ 5

Sec. 23(g), 29 U.S.C. § 672(g) .................-.----.. 5

Superfund Amendments and Reauthorization Act

of 1986, Pub. L. 99-499, 100 Stat. 1690 5

Sec. 126, 29 U.S.C. § 655 (note) ...... p Rae oon Z 5

State Statutes

Barber, Cosmetology and Esthetics Act, Ill. Ann.

Stat. ch. 111, ©1701-1 (Smith Hurd Supp.

ES A Re I eS AD rnd ek Leto ACTIN 23

Clinical Psy chologist Licensing Act, Th. Ann. Stat.

ch. 111, © 5351 (Smith Hurd Supp. 1991) ........ 23

Funeral Directors and Embalmers Licensing Act,

Ill. Ann. Stat. ch. 11, © 2800 (Smith Hurd Supp.

I esa saan eaeeiieiiiaiieia 23

Hazardous Waste Crane and Hoisting Equipment

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

Hazardous Waste Laborers Licensing Act, Ill.

Ann. Stat. ch. 111, © 7891 et seq. (Smith-Hurd

I eae alnsieticiemntiondiees 6

Pharmacy Practice Act, Ill. Ann. Stat. ch. 111,

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

1991) . 23

Professional Engineering Practice ‘Act, ‘Ti. Ann.

Stat. ch. 11, © 5201 et seq. (Smith Hurd Supp.

Ba aN ERR a NER EAA EES 23

Speech- Language Pathology and Audiology Prac-

tice Act, Ill. Ann. Stat. ch. 111, © 7901 et seq.

(Smith Hurd Supp. 1991) ............... Sieaiaanonaa oe 23

vii

TABLE OF AUTHORITIES—Continued

Rules and Regulations

29 C.F.R. § 1901.2 (1991) _....... iaabiapbatnasiiaad viiaieaee

29 C.F.R. § 1910.120 (1991) ...............000202..

29 C.F.R. § 1910.1200(a) (2) (1991)

29 C.F.R. § 1953.21 (1991) ........ nae aealonisia Sadbicilas cae

54 Fed. Reg. 9315 (March 6, 1989) 0. 0.

Legislative Materials

Hearings on H.R. 843, H.R. 3809, H.R. 4249, H.R.

13,373 Before the Select Subcomm. on Labor of

the House Comm. on Educ. and Labor, 91st

Cong., Ist Sess. (1969) 0... oe ALN PR

H.R. 13,373, 91st Cong., Ist Sess. (1969) .

H.R. Rep. No. 1291, 91st Cong., 2d Sess. (1970)

H.R. Rep. No. 1765, 91st Cong., 2d Sess. (1970)

S. 2788, 91st Cong., lst Sess. (1969) |

16, 25

S. Rep. No. 1282, 91st Cong., 2nd Sess. (1970) 14, 15, 25

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 (S. 2193, P.L.

91-596) (Comm, Print 1971)... 15,"

116 Cong. Rec. 36,521 (1970)

116 Cong. Rec. 37,325 (1970) eit

116 Cong. Rec. 37,345 (1970) .

116 Cong. Rec. 37,604 (1970)... aan ee

116 Cong. Rec. 37,626 (1970)...

116 Cong. Rec. 37,628 (1970) __. v

116 Cong. Rec. 37,629 (1970) UES!

116 Cong. Rec. 37,631 (1970)

116 Cong. Rec. 38,382 (1970) |

116 Cong. Rec. 38,392 (1970) 00.

Miscellaneous ®

Antonin Scalia, Judicial Deference To Administra-

tive Interpretation of Law, 1989 Duke L.J. 511

(1989) ..... 2 ah

David Beam, Washington’ 8 Regulation of States

and Localities: Origins and Issues, 7 Inter-

government Perspective 8 (Summer 1981)

16, 25

viii

TABLE OF AUTHORITIES—Continued

1 Empl. Safety & Health Guide (CCH) * 5003 ......... 24

OSHA Policy Statement (April 1972), reprinted

in 1 Empl. Safety & Health Guide (CCH)

ee ceenciadiamnaiiilias 24

Richard Nixon, The President’s Address to the

Nation on Domestic Programs, 5 Weekly Comp.

Pres. Doc. 1103 (Aug. 8, 1969) —...... BME 8, 11

Timothy Conlan, New Federalism—lIntergovern-

mental Reform From Nixon To Reagan (1988) ..8, 9, 11

IN THE

Suprenw Court of the Uniied States

OCTOBER TERM, 1991

No. 90-1676

MAry GADE, Director of the Illinois

Environmental Protection Agency,

‘ Petitioner,

NATIONAL SOLID WASTE MANAGEMENT ASSOCIATION,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF FOR THE CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

INTEREST OF THE AMICUS!

The Chamber of Commerce of the United States of

America (Chamber), a nonprofit corporation organized

and existing under the laws of the District of Columbia,

is the largest federation of business, trade, and profes-

sional organizations in the United States. It represents

the interests of over 180,000 corporations, partnershijs,

and proprietorships, as well as state and local chambers

of commerce and trade associations. The Chamber regu-

larly represents the interests of its member-employers in

' The parties’ letters of consent have been filed with the Clerk

pursuant to Rule 37.3 of this Court.

important employment matters before the courts, the

United States Congress, the Executive Branch, and in-

dependent regulatory agencies of the Federal govern-

ment.°

The Chamber has a significant interest in the question

presented in this case. The vast majority of its members

are subject to the Occupational Safety and Health Act of

1970 (OSH Act), 29 U.S.C. § 651 et seg. (1988), as

amended by Pub. L. 101-508, tit. III, § 301, 104 Stat.

1368-29 (1990). The question presented raises the pos-

sibility that, in addition to their responsibilities under the

OSH Act, the Chamber’s members will also be faced with

an array of state law measures. Variances or conflicts

among, and the cumulation of responsibilities created by,

these measures pose significant compliance issues for

Chamber members operating in more than one state and

across state lines.

STATEMENT

At issue in this case is whether Illinois may enact laws

that relate to issues addressed by federal occupational

safety and health standards promulgated pursuant to the

Occupational Safety and Health Act of 1970 (“Act” or

“OSH Act”), Pub. L. No. 91-596, 84 Stat. 1590, 29 U.S.C.

‘691 et seq. Petitioner claims that, notwithstanding the

OSH Act’s preemption provisions, Illinois’ hazardous

waste laws are valid because they address public, as well

as occupational, safety and health issues. The background

of the OSH Act, the federal regulations, the state laws,

and the prior proceedings are as follows:

* The Chamber has sought to advance those interests in a wide

spectrum of OSH Act and employment litigation matters before

this Court. See, ¢.g., Lechmere, Ine. v. NLRB, 60 U.S.L.W. 4145

(U.S. Jan. 27, 1992); Martin v. Occupational Safety and Health

Review Comm'n, 111 S. Ct. 1171 (1991); NLRB v. Curtin Matheson

Scientific, Inc., 494 U.S. 775 (1990); Trans World Airlines, Inc. v.

Independent Fed'n of Flight Attendants, 489 U.S. 426 (1989) ;

Asta v. Illinois, No. 88-1783 (1990) (U.S. cert. denied Oct. 3, 1989).

1. In the Occupational Safety and Health Act, Con-

gress endeavored “to assure so far as possible [that]

every working man and woman in the Nation [has] safe

and healthful working conditions ... .” 29 U.S.C.

s 651(b). To that end, Congress among other things au-

thorized the Secretary of Labor (“Secretary”) “to set

mandatory occupational safety and health standards.” 29

U.S.C, $$ 651(b) (3), 655(a). Congress conferred broad

discretion on the Secretary, not only as to the creation

of appropriate health and safety standards, but also with

respect to the granting of variances from those standards

and the enforcement of the Act. 29 U.S.C. ss 655d),

659.

At the same time, Congress also :oaght to achieve safe

workplaces and to reduce the federal role “by encouraging

the States to assume the fullest responsibility for the ad-

ministration and enforcement of their occupational safety

and health laws... .” 29 U.S.C. § 651(b) (11). Congress

therefore directed that the OSH Act does not “prevent

any State agency or court from asserting jurisdiction

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) (“Section 18(a'"). In

addition, Congress expressly preserved the operation of

certain state laws, stating that the OSH Act does not

“sapersede or in any manner affect any workmen’s com-

pensation law or .. . enlarge or diminish or affect in any

other manner the common law or statutory rights, duties,

or liabilities of employers and employees under any law

with the respect to injuries, diseases, or death of em-

ployees arising out of, or in the course of, employment.”

29 U.S.C. § 653(b) (4). At the same time, however, Con-

gress provided that if a State “desires to assume re-

sponsibility for development and enforcement therein of

occupational safety and health standards relating to any

occupational safety or health issue with respect to which

a Federal standard has been promulgated |it] shall sub-

mit a State plan for the development of such standards

and their enforcement.” 29 U.S.C. § 667(b) (“Section

18(b)”’),

Under the Act, the Secretary “shall approve the [state]

plan” if the State satisfies certain conditions. 29 U.S.C.

$ 667(c) (“Section 18(c)”). These conditions include

providing safety and health standards at least as effec-

tive as federal requirements, and, through reporting re-

quirements, enabling federal oversight of state health and

safety efforts. Jd. Even after the Secretary has approved

a state plan, she is authorized to enforce federal standards

for a three-year period. 29 U.S.C. § 667(e). At the end

of that period, the Secretary is required to make a deter-

mination that the State is meeting its obligations under

its occupational safety and health plan. 7d.

Once the Secretary makes that determination, she is

herself ousted of regulatory authority and the State’s

authority becomes exclusive. 29 U.S.C. $ 667(e). How-

ever, the Secretary is required ‘on the basis of reports

submitted by the State agency and [her] own inspections

[to] make a continuing evaluation of the manner in

which each State having a plan... is carrying out such

plan.” 29 U.S.C. § 667(f). If the Secretary finds that a

state is not in compliance with its plan, the Secretary may

after notice and a hearing withdraw her prior approval

of the plan. 29 U.S.C. $ 667(f'. At that time, the plan

“cease|s| to be in effect.” Jd. But Congress specifically

afforded states continued “jurisdiction in any case com-

menced before the withdrawal of the plan in order to en-

foree standards under the plan... .” Td.

To encourage and assist the states in their efforts to

promote occupational safety and health standards, Con-

gress provided for federal grant monies to be made ayail-

able to the states. 29 U.S.C. § 672. These grants are to

be used in developing state plans, in increasing the ex-

pertise and enforcement capabilities of personnel engaged

in state occupational safety and health programs, and in

“otherwise improving the administration and enforcement

of state occupational safety and health laws. .. .” 29

U.S.C. § 672(a). States that develop approved plans may

receive funding for up to 50 percent of the costs of their

occupational health and safety programs. 29 U.S.C.

§$ 672(g).

2. In 1986, concerned about controlling and cleaning

up hazardous wastes, Congress enacted the Superfund

Amendments and _ Reauthorization Act of 1986

(“SARA”), Pub. L. 99-499, 100 Stat. 1690 (1986). In

SARA, which amended the Comprehensive Environmental

Response, Compensation and Liability Act (“CERCLA”),

42 U.S.C.A. $ 9601 et seg. (West 1983 and Supp. 1991),

Congress further directed the Secretary to “promulgate

standards for the health and safety protection of employ-

ees engaged in hazardous waste operations,” pursuant to

Section 6 of the OSH Act. SARA § 126 (codified at 29

U.S.C. $655 (note). Specifically, SARA requires the

Secretary to establish standards for site analysis, train-

ing, medica! surveillance, protective equipment, engineer-

ing controls, maximum exposure limits, informational and

new technology programs, handling of hazardous wastes,

decontamination procedures, and emergency responses.

Id.

In response to SARA, the Secretary promulgated

OSHA’s Hazardous Waste Operations and Emergency Re-

sponse Regulations, 29 C.F.R. § 1910.120 (1991) (“Haz-

ardous Waste Regulations”). These regulations require,

among other things, that employers provide training for

employees working in proximity to hazardous wastes, in-

cluding 40 hours of off-site training and three days of

actual field experience. 29 C.F.R. § 1910.120(e) (3) (i).

The regulaticns address other hazardous waste safety

measures as well, including the provision of equipment,

protective clothing, and procedures for handling emer-

gency responses. 29 C.F.R. § 1910.120(e) (4).

In promulgating the Hazardous Waste Regulations, the

Secretary noted that “Section 18 of the OSH Act also

expresses Congress’ clear intent to preempt state laws re-

lating to issues with respect to which Federal OSHA has

promulgated occupational safety or health standards,” and

added that “a state can avoid preemption only if it sub-

mits, and obtains Federal OSHA approval of, a plan for

the development of such standards and their enforce-

ment ....” 54 Fed. Reg. 9315 (March 6, 1989). The

Secretary also stated that she had used “regulatory pre-

emption of state law to the minimum level necessary”

by providing that “|{s]afety and health programs devel-

oped and implemented to meet other Federal, state or

local regulations are considered acceptable in meeting

[the regulation’s hazardous waste safety and health] re-

quirement if they cover or are modified to cover the topics

required in {the regulation]. An additional or separate

safety and health program is not required by this para-

graph.” 29 C.F.R. 1910.120(b) (note).

3. In 1991, two years after the promulgation of these

federal occupational safety and health regulations, Ili-

nois enacted the Hazardous Waste Crane and Hoisting

Equipment Operators Licensing Act, Il. Ann. Stat. ch.

111, 1 7701 et seg. (Smith-Hurd Supp. 1991) (“Opera-

tors Act’), and the Hazardous Waste Laborers Licensing

Act, Ili. Ann. Stat. ch. 111, § 7801 et seg. (Smith-Hurd

Supp. 1991) (“Laborers Act”). Designed to “promote job

safety and... protect life, limb and property,” these

statutes require, inter alia, that individuals working with

hazardous waste have at least 40 hours of training under

a program conducted within the State of Illinois. /d. at

§§ 7702, 7705, 7802, 7805. Additionally, under these

statutes, applicants must pass a written examination pre-

scribed by the Illinois Environmental Protection Agency,

have had a minimum of 4000 hours of handling equip-

ment used with hazardous waste, and complete annual

refresher courses of at least eight hours. /d. at "" 7705,

7706, 7707, 7805, 7806.

4. Thereafter, the National Solid Waste Management

Association (*“NSWMA”) challenged the Operators Act

and the Laborers Act on the grounds that, first, these

laws are preempted by the OSH Act and the regulations

promulgated thereunder because Illinois is not a “state

plan” jurisdiction, and, second, that the Ilinois acts vio-

late the Commerce Clause of the United States Constitu-

tion. Following an evidentiary hearing, the district court

ruled that the Illinois acts were neither expressly nor im-

plicitly preempted by federal law, with the exception of

the requirement that training be conducted within the

State of Illinois. Pet. App. 54-60, 62. The district court

refused to consider the Commerce Clause challenge on

ripeness grounds, reasoning that Illinois had not yet

promulgated final rules for implementing the acts. Pet.

App. 61-62.

On appeal, the Seventh Circuit held that “Section 18

expressly prohibits states without federally approved state

plans from exercising jurisdiction over an occupational

health and safety matter as to which OSHA has already

duly promulgated a federal standard.” Pet. App. 17.

Accordingly, it held that the Illinois acts were preempted.

Id. In doing so, the court rejected the argument that a

state law with non-occupational (as well as occupational |

health and safety “purposes” or “effects” should survive

preemption analysis, holding that the statutory question

is merely “whether the challenged «tate law .. . consti-

tutes, in a direct, clear and substantial way, regulation of

worker health and safety.” Jd. at 19.

INTRODUCTION AND SUMMARY OF ARGUMENT

The OSH Act was enacted as part of the sweeping

scheme of “New Federalism” that characterized the

domestic programs of the administration of President

Richard Nixon. In announcing his administration’s ap-

proach to domestic policy, President Nixon declared that

his “purpose... [was] to present a new... and dras-

tically different approach ... [from] the way the re-

sponsibilities [had previously been| shared between the

State and Federal Governments .... |T|hese proposals

. represent the first major reversal of the trend toward

ever more centralization of government in Washington.

_.. [I]t is time for a New Federalism in which power,

funds, and responsibility will flow from Washington to

the States and to the people.” Richard Nixon, The Presi-

dent’s Address to the Nation on Domestic Programs, 5

Weekly Comp. Pres. Doc. 1103 (Aug. 8, 1969).

Presidnet Nixon’s New Federalism program was a

vision of federal standards enforced through stronger

state and local governments and supported by substantial

federal funding. It was thus more a foray into “national

localism,” or perhaps “regulatory federalism,” than the

downsizing of the federal role that has characterized more

recent approaches to states’ rights. See Timothy Conlan,

New Federalism—lInterqovernmental Reform From Nixon

To Reagan, xvi, 12-18, 84-86 (1988) (“Conlan”). While

divesting the federal government of administrative bur-

dens, the New Federalism program retained a substantial

federal role in devising policy goals and in ensuring that

the states meet them; the “unmet needs” at which the

New Federalism was directed were national in scope and

required continued federal involvement and federal en-

couragement of the states. /d.

The precise contours of the New Federalism legislation

varied among the statutes enacted during the Nixon era.

Some statutes, like the Equal Employment Opportunity

Act of 1972, 42 U.S.C. § 2000e et seg. (1988), were

“direct mandates” under which state and local govern-

ments were simply required to comply with a particular

federal policy. Id. Others, like the Emergency Highway

Energy Conservation Act of 1974, 28 U.S.C. § 154

(1988), which prohibited the Secretary of Transportation

from approving any highway construction project in

states having a speed limit in excess of 55 miles per hour,

were “crossover sanctions” under which federal funds

for several programs would be jeopardized should recipi-

—_

ents fail to comply with regulations in a single program.

See Conlan at 85, Finally, there were “partial preemp-

tion” programs in which the federal statute set mini-

mum standards and encouraged states to administer and

apply these standards. /d.

The Clean Air Act was a prime example of this latter

form of the New Federalism. That Act directed the

Environmental Protection Agency to prescribe national

air quality standards, and required each state to adopt

an implementation plan. See 42 U.S.C. § 7409(a), (b)

(1988). It permitted states to adopt any standards or

limitations, so long as the states’ standards were at least

as stringent as the federal standards. /d.

The OSH Act is also a “partial preemption” program.

See David Beam, Washington's Regulation of States and

Localities: Origins and Issues, 7 Intergovernmental Per-

spective 8, 12 (Summer 1981). It too created a mecha-

nism for establishing federal standards, and sought to

transfer responsibility for implementation and enforce-

ment of those standards to the states. 29 U.S.C. § 667.

But, in contrast to the Clean Air Act and other such

New Federalism statutes, the OSH Act does not require

state participation and state plans. Rather, to ensure

safe worksites, the OSH Act begins with a presumption

of federal regulation, implementation, and enforcement,

and merely permiis states to opt-in and displace the fed-

eral government as administrator of the scheme. States

may opt-in only pursuant to an approved state plan that

meets certain statutory prerequisites and that is subject

to continuing federal monitoring.

It is against this backdrop—concern with promoting

federal standards and with encouraging states to take

responsibility for those standards—that the OSH Act was

enacted and that the preemption question in this case

must be resolved. The statutory language, the context of

the statute’s enactment, its interpretation by the agency

charged with implementing it, and the view of every court

of appeals that has considered the question all point to

the sume conclusion: state regulation of occupational

health and safety issues addressed by federal health and

safety standards are preempted in the absence of an ap-

proved state plan. Dual purpose laws do not fall within

any sort of exception to this OSH Act preemption rule.

They, like all other state laws that regulate occupational

health and safety issues that are subject to federal

standards, are preempted in the absence of a state plan.

ARGUMENT

As this Court has repeatedly stated, in judging whether

a state law is preempted under the Supremacy Clause,

“it}he purpose of Congress is the ultimate touchstone.”

Ingersoll-Rand Co. v. McClendon, 111 S. Ct. 478, 482

(1990) ‘internal quotations omitted). To discern the

pertinent congressional intent, the Court must “examine

the explicit statutory language and the structure and

purpose of the statute,” id., as well the historical context

in which the statute was enacted. See, e.g., Maine v.

Thiboutot, 448 U.S. 1, 13 (1980) (statutes “ ‘must be

given the meaning and sweep’ dictated by ‘their origins

and their language’—not their language alone’) (cita-

tion omitted); Florida Lime & Avocado Growers, Inc. v.

Paul, 373 U.S. 132, 147-48 (1963) (construing Agricul-

tural Adjustment Act by reference to the provisions of

the Federal Tobacco Inspection Act, passed by the same

Congress on previous day).

In the present case, the New Federalism program of

the Nixon Administration provides the historical context

of the OSH Act’s enactment. That context, together with

the language, legislative history, and consistent adminis-

trative and judicial interpretation of the OSH Act, lead

directly to the conclusion that federal regulation of occu-

pational safety and health issues precludes state regula-

tion of the same issues in the absence of an approved

state plan. In the OSH Act, Congress promoted the New

Federalism program of the era by empowering the states

to displace the Secretary as administrator of federal

health and safety standards. But, to do so, it required

the states to obtain federal approval of their occupational

safety and health plans. And it ensured the primacy of

the federal scheme by preempting state regulation in the

absence of such an approved state plan.

I. THE OSH ACT PREEMPTS STATE REGULATION

OF WORKPLACE ISSUES ADDRESSED BY FED-

ERAL HEALTH AND SAFETY STANDARDS IN

THE ABSENCE OF AN APPROVED STATE

PLAN.

The New Federalism program of the Nixon Administra-

tion envisioned federal standards that would be enforced

by state governments. See Nixon, supra at 1103. While

implementation of policy would be the responsibility of the

states, the New Federalism contemplated that policymak-

ing would be carried out at the federal level. See Conlan

xvi, 12-13, 84-86. Thus, as explained above in detail (pp.

7-9 supra), it represented a new era of “national local-

ism” and “regulatory federalism,” not a down-sizing of

the federal government’s policymaking role that has char-

acterized more recent approaches to federalism. /d.

The language of the OSH Act reflects precisely the

goals of the Nixon Administration’s New Federalism pro-

gram—establishing national standards, encouraging states

to take over enforcement of these standards, and intrud-

ing on state prerogatives where necessary to achieve

federally-established goals. Preserving some sphere in

which states may operate, the OSH Act instructs that

“common law or statutory rights, duties and liabilities

of employers and employees . . . with respect to [employ-

ment-related| injuries, diseases, or death” remain opera-

tive. 29 U.S.C. §653(b'(4) (“Section 4(b)(4)"). It

further provides that states may “assert|] jurisdiction

under the State law over any occupational safety or

health issue with respect to which no standard is in effect

-..+ 28 US.C. $ 6671a) (“Section 18(a'"). However,

the OSH Act also directs that any state that “desires to

assume responsibility for . . . 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 for

the development of such standards and [their] enforce-

ment.” 29 U.S.C. § 667(b) (“Section 18(b)”). And Sec-

tion 18(f) provides that, if the Secretary withdraws her

approval of a state plan, the state may only retain “juris-

diction in any case commenced before the withdrawal of

the plan in order to enforce standards under the plan... .”

29 U.S.C. §$ 667(f). These provisions, by “the normal

reach of |their] words,” Garcia v. United States, 469

U.S. 70, 76 (1984), whether read alone or with reference

“to the design of the statute as a whole and to its object

and policy,” Crandon v. United States, 494 U.S. 152, 158

(1990), preclude any state regulation of an occupational

safety or health issue with respect to which a federal

standard has been established in the absence of an ap-

proved state plan.

Sections 18(a) and 18(b) of the OSH Act plainly lay

out the regulatory universe envisioned by the Congress

and President Nixon’s New Federalism program: either

no federal standard exists and a state therefore is free

to regulate occupational health and safety issues, or a

federal standard does exist and a state therefore is pre-

cluded from regulating with respect to those occupational

health and safety issues unless it has an approved state

plan. Section 18(b) explicitly provides that a state “shall

submit a state plan for the development of such stand-

ards and their enforcement” if it desires to regulate an

occupational safety and health issue for which a federal

standard has been promulgated. 29 U.S.C. §$ 667(b) (em-

phasis added). Section 18(a) instructs that, if no related

federal standard is in effect with respect to a particular

occupational health and safety issue, a state is not pre-

empted by the OSH Act from regulation of that issue.

29 U.S.C. §667(a). Together, these two statutory pro-

visions are most properly construed as preempting a state

from regulating with respect to an occupational health

or safety issue as to which there is an existing federal

standard if the state has failed to do what Section 18(b)

provides that it “shall” do: submit to the Secretary an

occupational safety and health plan that satisfies the re-

quirements of 29 U.S.C. § 667(¢) (“Section 18(¢)”).

Section 18/(a)’s preservation of state authority where

there are no federal standards would be superfluous if

Section 18(b) did not oust a state from regulating in the

absence of an approved state plan. Moreover, there would

have been no reason in Section 4(b) (4) of the OSH Act

categorically to preserve from preemption the “common

law or statutory rights, duties, and liabilities of employ-

ers and employees” if Section 18(b) did not preclude state

regulation of issues regulated by federal standards in

the absence of an approved state plan. And, of course,

Section 18(f)’s preservation of jurisdiction over enforce-

ment of state standards in cases initiated prior to with-

drawal of plan approval by the Secretary is devoid of

meaning if the states are not generally preempted from

regulating in the absence of an approved plan. See 29

U.S.C. § 667(f).

Petitioner apparently does not dispute (Pet. Br. 17,

30) that there is a federal occupational safety and health

standard that relates to the subject of the Illinois statutes

at issue in this case. Nor does she dispute that Illinois

does not have a state plan. Rather, like Judge Easter-

brook in his separate opinion below, petitioner suggests

(Pet. Br. 14-20) that, since Section 18(b) does not use

the words “preempt” or “supersede,” that section can be

read in isolation to allow concurrent federal and state

regulation of occupational health and safety issues.

Under this view, Section 18(b) merely provides the

means through which a state may obtain exclusive regu-

latory jurisdiction over occupational health and safety

issues.

This Court, however, has never held that a finding of

preemption turns on whether Congress has employed the

terms “preempt” or “supersede” in drafting a statute.

See, e.g., Jones v. Rath Packing Co., 430 U.S. 519, 530-

532 (1977) (holding that the federal statute that “pro-

hibits the imposition of ‘{m]arking, labeling, packaging,

or ingredient requirements in addition to, or different

than, those made under’ the Act” constitutes “explicit

pre-emption.”). Moreover, to construe Section 18(b) in

the fashion suggested by petitioner would, as noted above,

render Sections 4(b) (4) and 18(a) of the OSH Act su-

perfluous and ineffectual, which of course traditional

canons of statutory censtruction counsel against. See

United States v. Menasche, 348 U.S. 528, 538-39 (1955).

Furthermore, such a construction would directly contra-

dict Section 18(f)’s command that, with narrow excep-

tion, if the Secretary withdraws her approval of a state

plan, the state is stripped of its authority to regulate

with respect to issues as to which a federal standard

exists. Indeed, such a construction would contradict the

uniform view of the federal courts of appeals, which have

all agreed that state regulation of occupational health

and safety issues addressed by federal standards is pre-

cluded in the absence of an approved state plan. See, e.7.,

Associated Indus. of Mass. v. Snow, 898 F.2d 274, 278

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

City of New York, 855 F.2d 48, 55 (2d Cir. 1988) ; New

Jersey State Chamber of Commerce v. Hughey, 774 F.2d

587, 592 (3d Cir. 1985), appeal after remand, 868 F.2d

621 (3d Cir.), cert. denied, 492 U.S. 920 (1989). This

uniform course of decision establishes a clear meaning

that should not lightly be overturned. See Reves v. Ernst

& Young, 494 U.S. 56, 74-75 (1990) (Stevens, J., con-

curring). Finally, and most importantly, to adopt peti-

tioner’s construction of the OSH Act would ignore the

statute’s legislative origins and do violence to its purpose

and scheme.

In enacting the OSH Act, Congress was vitally con-

cerned with the growing number of industria! accidents

and work-related illnesses in the country. See S. Rep.

No. 1282, 91st Cong., 2d Sess. 1-5 (1970), reprinted in

Leg. Hist. 141; * 116 Cong. Rec. 37,345 (1970), Leg. Hist.

445 (statement of Sen. Harris). Congress determined

that most states had poor records in the area of occupa-

tional health and safety regulation. See, e.q., 116 Cong.

Ree. at 37,628, Leg. Hist. 517 (statement of Sen. Nel-

son); 116 Cong. Rec. at 37,626, Leg. Hist. 513 (State-

ment of Sen. Muskie) (“Only four states have adequate

standards . . . . Nowhere are enforcement mechanisms

and penalties adequate to force industry compliance with

existing standards”). Moreover, because the states had

frequently expressed concern that employers would sim-

ply move their businesses to states with less stringent

regulations, Congress determined that the states were

unlikely on their own to more vigorously enforce occu-

pational health and safety standards. See, e.g., 116 Cong.

Rec. at 38,392-393, Leg. Hist. 1049 (statements of Rep-

Karth) ; 116 Cong. Rec. at 37,325, Leg. Hist. 415 (state-

ment of Sen. Williams); 116 Cong. Ree. at 36,521, Leg.

Hist. at 343 (statement of Sen. Saxbe). Thus, in the

OSH Act, Congress provided for federal standards and

federal enforcement. See 116 Cong Rec. at 37,604, Leg.

Hist. 457 ‘statement of Sen. Schweiker) (“I would like

to point out that the reason we are writing this law

is because the present laws in the states have not been

—- .... That is why we are writing a federal

aw.”’).

While this approach solved the enforcement question,

it threatened to create a larger federal bureaucracy and

collided with the New Federalism concerns of the time.

Accordingly, Congress included in the OSH Act induce-

ments to states to increase their involvement in occupa-

tional health and safety regulation. See S.Rep. No. 1282,

1st Cong., 2d Sess. (1970), Leg. Hist. 141 (“Enecourage-

ment is given to Federal-state cooperation, and financial

assistance is authorized to enable states, under approved

* Citations to “Leg. Hist.” may be found in: 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 (S. 2193, P.L. 91-596) (Comm. Print 1971).

plans, to take over entirely and administer their own

programs for achieving safe and healthful job sites for

the Nation’s workers.”). These inducements included

federal funding of the development and implementation

of state plans, provision of an opportunity for state con-

trol of the statute’s regulatory apparatus, and, where

appropriate, the opportunity to deviate from federal

standards to account for local conditions. See 29 U.S.C.

$$ 667(c)}, 672. A state wishing to do so, however, has

to file and obtain approval of an appropriate occupational

safety and health plan. See 116 Cong. Ree. at 37,631,

Leg. Hist. 525 (statement of Sen. Dominick) ; S. Rep.

No, 1282, 91st Cong., 2d Sess. 62 (1970), Leg. Hist. 201;

116 Cong. Ree. at 37,629-630, Leg. Hist. 519-22 (remarks

of Sen. Cranston); 116 Cong. Rec. at 38,382, Leg. Hist.

1022 (remarks of Rep. Hathaway).

Indeed, in adopting this approach, Congress expressly

declined to follow the different tack that it had taken only

a year before in a related statute, the Federal Coal Mine

Health and Safety Act of 1969 (“FCMHSA”). See Pub.

L. 91-173, 83 Stat. 742 (1969) (codified at 30 U.S.C.

$ 801 et seq.'. That statute, drafted by the same Senate

and House committees that drafted the OSH Act, has

no federal approval procedure and expressly states that

more stringent state Jaws are not superseded by federal

regulations. See 30 U.S.C. § 955 (1988). In considering

the enactment of the OSH Act, however, Congress de-

clined to follow the FCMHSA’s supplementary enforce-

ment model; it rejected two bills that would have allowed

state standards to remain in effect if they did not conflict

with OSHA standards and if they offered “significantly

greater protection.” See S. 2788, 91st Cong., 1st Sess. 28

(1969), Leg. Hist. 58; H.R. 13,373, 91st Cong., Ist Sess.

28 (1969), Leg. Hist. 706; H.R. Rep. No. 1291, 91st Cong.,

2d Sess. 11 (1970), Leg. Hist. 841; H.R. Rep. No. 1765,

91st Cong., 2d Sess. 42 (1970), Leg. Hist. 1195; Hear-

ings on H.R. 842, H.R. 3809, H.R. 4249, H.R. 13,373

Before the Select Subcomm. on Labor of the House Comm.

on Educ. and Labor, 91st Cong., Ist Sess. 396-97, 487-88,

490-92 (1969) (remarks of Martin R. Catherwood, In-

dustrial Commissioner, Dep’t of Labor, State of New

York). Rather, Congress enacted Section 18(b) of the

OSH Act, which required states to obtain approval of the

Secretary through a state plan before seeking to regulate

an occupational health and safety issue as to which the

Secretary has promulgated a federal standard.‘

Together with Sections 4(b) (4),18(a), and 18(f) of the

Act, Section 18(b) of the OSH Act embodies the new Feder-

alism goal of encouraging the transfer of governmental

responsibility to the states. As petitioner herself recog-

nizes (Pet. Br. 5, 17, 20), through federal! subsidies for

plan development and implementation, the OSH Act en-

courages states to adopt state plans and assume regula-

tory authority with respect to occupational health and

Safety issues. But Section 18(b) reflects the special OSH

Act twist on the New Federalism program: by generally

preempting state law in the absence of an approved state

plan, Section 18(b) ensures that federal occupational

health and safety standards will be secured either through

the Federal government's own monitoring and enforce-

ment efforts or through its monitoring of a state’s imple-

mentation of an approved state plan of occupational

health and safety regulation.

Under the OSH Act, the submission of a state plan is

absolutely essential to the federal] government’s ability to

ascertain that a state is, in fact, meeting its obligations

and securing the goals of the OSH Act. States with occu-

pational health and safety plans must either adopt the

pertinent federal standards or demonstrate to the Secre-

* Petitioner errs in placing weight on portions of the legislative

history of the OSH Act that address only the interim period between

enactment of the OSH Act and the promulgation of federal stand-

ards by the Secretary. (Pet. Br. 23-26). In any event, Congress

made clear the need for state plans, both to effectuate federal over-

sight of State enforcement and to encourage states to take over the

federal regulatory role. Se; supra at pp. 14-16.

tary that their standards are at least as effective as =

federal standards, See 29 C.F.R. § 1953.21 (1991). They

must also report to the Secretary concerning their com-

pliance with their plans. 29 USC. $ 667(c). The —

state plan mechanism, which requires the aang gig -

proval before a state may resume regulation of a a “

ally-addressed field, would be essentially ineffective :

the states could on their own continue to issue stan .

ards in that field. Section 18(f) in fact makes it com-

pletely clear that they may not do so.”

Indeed, in this respect, the language of the OSH Act

is critically different from the language of other statutes

of the New Federalism era, reflecting Congress special

concern for federal control over occupational health and

safety policymaking. The OSH Act does not include a

provision authorizing state standards that are more strin-

went than federal ones in the absence cf a state plan. See,

e.g., 33 U.S.C. § 137011) (1988) (Clean Water Act) - 42

U.S.C. £7416 (1988) (Clean Air Act). Nor does it con-

tain other language, typical of New Federalism legisla-

tion, that recognizes the “primary responsibilities and

rights of the states” in the subject matter of the legisla-

tion. See, e.g., 33 U.S. $1251(b) (1988) (Clean Water

Act): 42 U.S.C. § 7401(a1 (3) (1988), as amended by

Pub, L. 101-549, tit. I, § 108(k), 104 Stat. 2468 (1990)

‘Clean Air Act). And it does not contain a savings

clause which provides that nothing “shall... preclude

or deny the right of any state... to adopt or enforce

5 Petitioner errs in suggesting (Pet. Br. 20, 22) that the weeronen

statutes cannot be preempted because they promote the —,

sional goal of workplace safety. This Court has never held a : .

fact that a state law enhances or promotes a federal statutory goa

precludes a finding that the state law is preempted. Cf. agg

Dep't of Industry v. Gould Ine., 475 U.S. 282, 290-91 (1986) ae

statute debarring three-time violators of the National Labor oo”

tions Act from doing business with the state is preempted ste

though state law was designed to reinforce requirements —

Act). The question is whether the state statute purports to ady a

the federal goal in a way that Congress has prohibited. That is the

situation here, since no state plan has been submitted by Illinois.

standards. Sec, e.g., 33 U.S.C. § 1870 (Clean Water Act) :

42 U.S.C. $7416 (Clean Air Act). Rather, in Section

18(b), the OSH Act provides that a state “shall” submit

an appropriate plan to the Secretary if it wishes to regu-

late with respect to occupational health and safety issues

as to which the Secretary has issued a federal standard,

and it preserves state jurisdiction over such issues only

so long as the state’s occupational safety and health plan

is properly in effect. 29 U.S.C. § 667(b}, (f). This erit-

ical textual difference confirms that, in the absence of an

approved state plan, the OSH Act does indeed preempt

state regulation of occupational safety and health issues

addressed by federal standards."

In all events, any doubts about this interpretive matter

must be resolved in favor of the preemption view. This

Court has made it clear that, if congressional intent on an

interpretive issue cannot be specifically determined, a

reasonable interpretation by the agency charged with re-

sponsibility for administering a statute will be enforced.

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

Council, Inc., 467 U.S. 837, 842-844 (1984). Here, the

Secretary has explicitly and consistently stated that, in

the absence of an approved state plan, the OSH Act

preempts state regulation where a federal standard has

been issued. See 29 C.F.R. § 1901.2 (1991); 29 C.F.R.

¥ 1910,1200(a) (2) (1991); 54 Fed. Reg. 9315 (March

6, 1989). Indeed, in promulgating the Hazardous Waste

Regulations, the Secretary explicitly stated her intent

* Petitioner errs in relying on Wisconsin Public Intervenor v.

Mortier, 111 S. Ct. 2476 (1991). (Pet. Br. 16-17). In that case,

this Court held that, in expressly delegating regulatory authority

under the Federal Insecticide, Fungicide, and Rodenticide Act, 7

U.S.C. § 136 et seq., to the states, Congress did not thereby strip

localities of their authority to regulate “because political subdivi-

sions are components of the very entity the statute empowers.”

111 S. Ct. at 2483. The absence of preemption there due to the

relationship between state and local units of government is irrele-

vant to whether Congress has preempted state regulation.

to preempt related state law. See 54 Fed. Reg. at 9315-

9316. These statements of intent to preempt state law

are squarely within the Secretary’s authority and must

be sustained. See Fidelity Fed. Sav. & Loan Ass’n v.

de la Cuesta, 458 U.S. 141, 154 (1982); Capital Cities

Cable, Inc. v. Crisp, 467 U.S. 691, 699 (1984).’

Accordingly, the Illinois statutes at issue must be

held preempted. They directly regulate issues addressed

by a federal occupational safety and health standard

in the absence of an approved state plan."

7™The AFL-CIO plainly errs in suggesting (AFL-CIO Br. 17-

19) that the Secretary’s interpretation is a mere “litigation state-

ment” and is inconsistent with prior statements of her agency. An

interpretation promulgated in a regulation of an agency ( and Fed-

eral Register comment thereon ) is not a mere litigation position of

agency counsel; rather, it is an authoritative statement of agency

policy by the executive charged with the responsibility for ad-

ministering a statute and, for that reason, is entitled to the force

and effect of law. See, ¢.g., Morton v. Ruiz, 415 U.S. 199, 231-35

(1974). Indeed, as Justice Sealia has suggested, this should be

true even if the agency’s present interpretation is inconsistent with

a prior interpretation. See Antonin Scalia, Judicial Deference To

Administrative Interpretations of Law, 1989 Duke LJ. 511, 517

(1989). In any event, the Secretary's present interpretation of the

OSH Act is in no way inconsistent with prior interpretations of her

agency: the agency statements cited by the AFL-CIO involved

instances in which the agency clarified that its regulation of a par-

ticular occupational health and safety issue did not extend to related

aspects of that problem that the states were already regulating.

8 Because Congress and the Secretary have clearly and manifestly

expressed their intent to preempt state law in the absence of a

state plan, Hillsborough County v. Automated Medical Lab., Inc.,

471 U.S. 707 (1985), is inapt. In Hillsborough, it was conceded that

there was no express preemption. Id. at 714. In addition, the agency

had clearly stated its intent not to preempt state and local law. 7d.

Precisely the opposite is true here.

II. THE ILLINOIS LICENSING STATUTES AT ISSUE

ARE PREEMPTED EVEN THOUGH THEY ARGU-

ABLY HAVE NON-OCCUPATIONAL AS WELL AS

OCCUPATIONAL HEALTH AND SAFETY PUR-

POSES AND EFFECTS.

Obviously recognizing the error of petitioner’s argu-

ment that Section 18 has no preemptive force of its own

petitioner’s amici disavow any reliance on it. See AFL-

CIO Br. 13-14 & n.5; States Br. 6-12. Rather, they

merely join petitioner in contending in the alternative

(Pet. Br. 29-37; AFL-CIO Br. 11-26; States Br. 6-14)

that any preemptive effect of Section 18 should not ex-

tend to state laws—such as the Illinois statutes at issue

here—that purportedly advance public as well as occupa-

tional health and safety concerns. The arguments that

petitioner and her amici advance in support of this con-

tention, however, are wholly without merit; indeed, they

wholly fail to understand the New Federalism origins

and purposes of the OSH Act. |

First, petitioner and her amici argue (Pet. Br. 31-32

AFL-CIO Br. 5-12; States Br. 4-5) that occupational

licensure is a historic police power of the states and that

there is a presumption in this Court’s cases against pre-

emption of such historic police powers. But, as they

themselves must and ultimately do acknowledge, this ar-

gument merely sets the framework for preemption anal-

ysis; it does not resolve it. Even where historic state

police powers are involved, Congress and the federal

agencies charged with enforcing federal statutes have the

power to promote superior federal interests by preempt-

ing state laws. See Fidelity Fed. Sav. & Loan Ass’n v

de la Cuesta, 458 U.S. at 153. As explained above (pe.

11-20 supra}, that is precisely what Congress and the

Secretary, acting on the letter and spirit of the New

a program, have done in the context of the OSH

ct.

Second, petitioner and her amici argue (Pet. Br. 29-36,

AFL-CIO Br. 12-22) that the OSH Act does not “clearly

and manifestly” evince a congressional intent to pre-

empt “dual” purpose or effect laws. This argument is

also unfounded.

With the exception of those state laws saved by Section

4(b) (4), the OSH Act preempts all state occupational

health and safety standards that “relat{e| to” an oe-

cupational safety and health issue as to which the

Secretary has promulgated a federal regulation. Section

18(b), 29 U.S.C. §$667(b). The phrase “relates to” is

commonly understood to mean to have “a connection

with or reference to.” Shaw v. Delta Atr Lines, Inc.,

463 U.S. 85, 97 (1983). See Ingersoll-Rand Co, v. Me-

Clendon, 111 S. Ct. at 483. Thus, the preemptive effect

of Section 18 extends to any state occupational health

and safety standard that has a “connection with or ref-

erence to” a health and safety issue as to which the Sec-

retary has promulgated a federal regulation. The IIli-

nois statutes at issue here plainly have such a connection

and reference. That they may have other, non-occupa-

tional purposes or effects as well is statutorily irrelevant.’

Contrary to the AFL-CIO’s contention (AFL-CIO Br.

16-17), the reference to state “occupational” health and

safety standards in Section 18(b) does not save “dual”

purpose or effect laws from preemption. By definition,

at least one of the purposes or effects of a “dual” impact

law is the setting of requirements for health and safety

® Although the AFL-CIO secks to cabin the reach of the phrase

“relates to” under the OSH Act (AFL-CIO Br. 16), it never ex-

plains why the identical term used in two statutes enacted at nearly

the same time--the OSH Act and the Employee Retirement Income

Security Act (“ERISA”), 29 U.S.C. § 1001 et seq.—-should not be

identically construed by the courts. That the OSH Act does not

include other words that appear in ERISA (AFL-CIO Br. 16 n.6)

has no relevance to the “plain” meaning or “normal sense” of the

phrase “relates to.” See Shaw v. Delta Air Lines, Inc., 463 U.S. at

97.

in the workplace—i.e., the setting of occupational health

and safety standards. That the state law may have other

purposes and effects means only that, in addition to being

an “occupational health and safety standard,” the state

law is something more as well. Stated differently, it is

plain that the additional, non-occupational purposes or

effects of a state law do not render that law any less of

an “occupational health and safety standard.”

Third, petitioner and her amici erroneously suggest

(Pet. Br. 35; AFL-CIO Br. 26; States Br. 13-14) that

finding preemption of the two Illinois statutes at issue

here is the death knell of state occupational licensing

and other dual-purpose or effect statutes. Even if true,

of course, this should not defeat the preemptive effect of

Section 18. The fact is, however, that the states re-

main free to engage in substantial occupational licensing

and other safety and health regulation.

For example, the states are free to engage in occupa-

tional licensing or other safety and health regulation

where the Secretary has not established a federal health

and safety standard or where the state laws do not

“relate to” occupational health and safety standards is-

sued by the Secretary. For example, the vast majority

of Illinois’ licensing statutes contain no provisions that

concern, let alone “relate to”, issues covered by federal

standards and therefore are not preempted.'”

1978 & Supp. 1991) (Plumbers Licensing Act); Ill. Ann. Stat. ch.

111, £ 4121 et seq. (Smith-Hurd Supp. 1991) (Pharmacy Practice

1991) (Barber, Cosmetology and Esthetics Act): Ill. Ann. Stat.

Hurd Supp. 1991) (Speech-Language Pathology and Audiology

Supp. 1991) (Professional Engineering Practice Act): Ill. Ann.

Directors and Embalmers Licensing Act).

The states are also free to license or otherwise regulate

where the Secretary has limited the scope of federal reg-

ulations. As the AFL-CIO ironically acknowledges ( AF L-

CIO Br. 18-19), the Secretary has so narrowed her reg-

ulations im two distinct areas: motor vehicle safety and

fire marshal services. In each instance, the Secretary has

carefully measured the state regulation against the fed-

eral obligations. See, e.g., OSHA Policy Statement (April

1972), reprinted in 1 Empl. Safety & Health Guide

18 lacks preemptive effect as applied to licensing or

dual-impact statutes, these two examples demonstrate

both the Secretary’s sensitivity to federalism issues and,

more significant, her ability to make it clear which state

measures she intends to displace.

Finally, the states remain free to operate in those

areas that Congress has expressly put beyond the Secre-

tary’s reach. State workers’ compensation laws are not

superseded or otherwise affected by the OSH Act. See 29

U.S.C. § 653(b) (4). Nor are common law rights of

employees altered by the OSH Act. Jd. In addition, a

state’s own employees are not subject to the federal stand-

ards. Jd. at § 667(c) (6). And, of course, a state may

submit a plan to the Secretary and thereby obtain ex-

clusive authority over occupational safety and health is-

sues. Jd. at §667(b). Indeed, of the fifty-six juris-

dictions eligible to submit plans for OSHA approval,"

twenty-three are operating under approved plans covering

both private and public employment; and approved plans

covering only public employment are operational in an-

other two states. See 1 Empl. Safety & Health Guide

titioner and her amici—that preemption in this case will

result in wholesale invalidation of state licensing and

other dual-impact statutes—is greatly overblown.

1! These jurisdictions are the fifty states, the District of Columbia,

American Samoa, Guam, Puerto Rico, the Trust Territories, and the

Virgin Islands.

Finally, petitioner and her amici plainly err in sug-

gesting (Pet. Br. 34-36; AFL-CIO Br. 23-26) that Con-

gress could not have intended to require the states to

enact entirely new and extensive regulatory schemes in

order to preserve their traditional right to protect the

public health and safety. To begin with, states may

continue to regulate public health and safety concerns so

long as they do not, at the same time, regulate occupa-

tional health and safety issues that are the subject of

federal standards. Second, the burden need not be as

great as petitioner and her amici suggest: the legislative

history makes it clear that “a State’s program need not

he all-encompassing; it may restrict itself to a particular

hazard or industry.” S. Rep. No. 1282, 91st Cong., 2d

Sess. 18 (1970), Leg. Hist. 158. See H.R. Rep. No. 1291,

91st Cong., 2d Sess. 32 (1970), Leg. Hist. 862. In all

events, it is clear that Congress imposed the state plan

requirements because it believed that they were necessary

to ensure the accomplishment of the OSH Act’s goals. The

state plan concept, in some form, was a vital component

of the New Federalism program. In a variety of areas

addressed by New Federalism legislation—clean air,

clean water—states were required to adopt comprehen-

sive state plans. While the states may find those state

plan requirements burdensome in some instances, they

are precisely what made the OSH Act part of the unique

New Federalism program of the era in which the statute

was enacted.

CONCLUSION

The judgment of the court below should be affirmed.

Of Counsel:

STEPHEN A. BOKAT

ROBIN S. CONRAD

MONA C., ZEIBERG

KENNETH B. ALEXANDER

NATIONAL CHAMBER

LITIGATION CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

March 2, 1992

Respectfully submitted,

GLEN D. NAGER

Counsel of Record

ROBERT C. GOMBAR

BETH HEIFETZ

JONES, DAY, REAVIS & POGUE

1450 G Street, N.W.

Washington, D.C. 20005-5701

(202) 879-3939

Attorneys for the

Chamber of Commerce of the

United States of America

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