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

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## Record

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

## Text

Supreme Gout, Ue
FILED
VY
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

A.

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)

iv

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

v

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

vi

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,
© 7701 et seq. (Smith Hurd Supp. 1991) ........ 6
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,
© 4121 (Smith Hurd Supp. 1991) .................... 23
Plumbers Licensing Act, Ill. Ann. Stat. ch. 111,
©1101 et seq. (Smith Hurd 1978 & Supp.
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
16
16, 25
16
16

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
15
15
15
15
15
15
16
16
16
15

20

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.

2

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).

3

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

4

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

5

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).

6

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.

7

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-

8

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-

—_

i)

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

10

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

11

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

12

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

13

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

14

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

15

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).

16

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,

17

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-

ee

* 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.

18

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.

a

19

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.

20

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.

21

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.

22

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.

23

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.'”

See, e.g. Ill. Ann. Stat. ch. 111, ©1101 et seq. (Smith-Hurd
1978 & Supp. 1991) (Plumbers Licensing Act); Ill. Ann. Stat. ch.
111, £ 4121 et seq. (Smith-Hurd Supp. 1991) (Pharmacy Practice
Act); Ill Ann. Stat. ch. 111, © 1701-1 et seq. (Smith-Hurd Supp.
1991) (Barber, Cosmetology and Esthetics Act): Ill. Ann. Stat.
ch. 111, © 5351 et seq. (Smith-Hurd Supp. 1991) (Clinical Psycholo-
gist Licensing Act); Ill. Ann. Stat. ch. 111, © 7901 et seq. (Smith-
Hurd Supp. 1991) (Speech-Language Pathology and Audiology
Practice Act); Ill. Ann. Stat. ch. 111, ©5201 et seq. (Smith-Hurd
Supp. 1991) (Professional Engineering Practice Act): Ill. Ann.
Stat. ch. 111, © 2800 et seq. (Smith-Hurd Supp. 1991) (Funeral
Directors and Embalmers Licensing Act).

24

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
(CCH) © 5008.81. Thus, rather than indicate that Section
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
(CCH) © 5003. In short, the prospect envisioned by pe-
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.

25

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.

26

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0103%3A15. Public record. Not legal advice.