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National Solid Wastes Management Ass'n v. Killian

ELR Citation: 21 ELR 20161
Nos. No. 89-3069, 918 F.2d 671/(7th Cir., 11/14/1990)

The court holds that §18 of the Occupational Safety and Health Act (OSH Act) and federally promulgated worker training requirements preempt certain Illinois laws providing for the training, testing, and licensing of hazardous waste site workers. Although §18 of the OSH Act does not expressly preempt the Illinois statutes, the court holds that it nevertheless preempts any state law or regulation whose sole purpose and effect is to establish a standard pertaining to worker health and safety where the Occupational Safety and Health Administration (OSHA) has already promulgated such a standard and the state has not obtained the Secretary of Labor's approval for its own plan. Illinois' assertion that its licensing laws serve the dual purposes of protecting workers and protecting the public does not save its regulation of hazardous waste workers from preemption because it is impossible to disengage the public health interest from the worker health interest. Moreover, the court reasons that it would defeat the purpose of §18 if a state could enact worker health and safety measures stricter than OSHA's simply by asserting a nonoccupational purpose for the legislation. Such state legislation would result in duplication and unwarranted additional costs to workers and employers.

The court holds that a two-step inquiry applies when an OSHA standard exists and the state has not submitted a §18 plan: Does the challenged state law constitute direct, clear, and substantial regulation of worker health and safety, and if so, are the worker protection provisions severable under state law? The court holds that the challenged provisions must be struck from state law, even if the provisions serve a concurrent public health and worker health purpose and effect. In so holding, the court rejects the approaches taken by three other federal circuit courts to resolving whether the assertion of a proper state purpose will prevent a state law from preemption by an OSHA standard. First, the court holds that the Third Circuit's primary purpose test, which deems preempted any provision with a primary purpose to protect worker health and safety as opposed to public health and safety, would impermissibly allow Illinois' 4,000-hour operating experience requirement to survive, because it is directed both to worker health and safety and to broader concerns. Although the primary purpose test produces predominately the same results as the court's two-step inquiry, the court holds that Illinois' 4,000-hour requirement directly, clearly, and substantially implicates worker health and safety and cannot survive as it would under the primary purpose test. Second, the court holds that the Second Circuit's legitimate and substantial purpose test, which deems preempted only those provisions lacking a legitimate and substantial purpose apart from the promotion of occupational health and safety, relies too heavily on an assessment of the legislature's subjective purpose. Merely asserting a desire to protect public health and safety cannot save a provision that infringes on OSHA's province. Third, the court holds that the First Circuit's effects test, which deems preempted only those provisions that do not produce a beneficial effect upon public health and safety, fails to adequately separate the worker health and safety aspect from the public health and safety aspect and impermissibly allows states to regulate worker health and safety under the guise of environmental regulation. Finally, the court remands Illinois' exemption for agricultural, mining, and railroad workers for an examination of any undue burden on interstate commerce.

Concurring in the result only, another judge would hold that preemption depends on the effects of state law and that §18 does not unquestionably preempt state law.

Counsel for Plaintiff-Appellant
Terrence Flynn
Gessler, Flynn
3 First National Plaza, Ste. 2200, Chicago IL 60602
(312) 580-0100

Counsel for Defendants-Appellees
Christine Bucklo
Attorney General's Office
100 W. Randolph St., 12th Fl., Chicago, IL 60601
(312) 814-2381

Before CUDAHY and EASTERBROOK, Circuit Judges, and SNEED, Senior Circuit Judge.1