ELR Citation: ELR 21073
No(s). 90-1676 (U.S. Jun 18, 1992)

The Court rules that dual purpose state environmental safety statutes, intended to protect both hazardous waste workers and the general public, are preempted by the Occupational Safety and Health Act (OSH Act), and nonapproved state regulation of occupational safety and health issues for which a federal standard exists is impliedly preempted, because it conflicts with the full purposes and objectives of the OSH Act. A national trade association challenged Illinois' licensing statutes enacted in 1988 that require hazardous waste equipment operators to have 40 hours of training and hazardous waste crane operators to have 4,000 hours of experience. The association argued that the statutes were preempted by the OSH Act and by regulations implementing the worker training requirements of the Superfund Amendments and Reauthorization Act of 1986. The district court held that the state statutes were not preempted by the OSH Act, because they protect both public and workplace safety. The court of appeals affirmed in part and reversed in part, holding that the OSH Act preempts all state laws that constitute regulation of worker health and safety, unless such laws have been federally approved as part of a state occupational safety and health plan under §18 of the OSH Act. The Court granted certiorari to resolve the conflict between the two lower court decisions and other federal circuit court decisions finding a narrow preemptive effect by the OSH Act on dual purpose state regulations.

The Court first holds that without federal approval, state regulation of occupational safety and health issues for which a federal standard is in effect is impliedly preempted, because it conflicts with the purposes and objectives of the OSH Act. Writing for the Court, Justice O'Connor concludes that the design of the statute reflects Congress' intent to avoid subjecting employers and employees to duplicative federal and state regulations. In the OSH Act's savings clause, §4(b)(4), Congress reserved to the states the areas of workers' compensation law, as well as common law or statutory rights with respect to workplace injuries, disease, or death. In §18(b), Congress also gave the states the option of preempting federal regulation entirely by submitting a state plan for development and enforcement of state occupational safety and health standards. The Court notes that about half the states have received federal approval for their own state plans under §18(b). The Court reasons that the unavoidable implication of §18(b)'s statement that a state "shall" submit a plan if it wishes to assume responsibility for developing and enforcing occupational safety and health standards is that a state may not enforce its own occupational safety and health standards without obtaining federal approval. Further, the natural implication of §18(a), which saves from preemption any state law regulating an occupational safety and health issue for which no federal standard exists, is that state laws regulating the same issue as federal laws are not saved, even if they merely supplement the federal standard. Moreover, §18(a) would be superfluous if a state were free to enact nonconflicting safety and health regulations. Thus, the Court concludes that §18(a)'s preservation of state authority in the absence of a federal standard presupposes a background preemption of all state occupational safety and health standards whenever a federal standard governing the same issue is in effect. The Court observes that if a state could supplement federal regulations without undergoing the §18(b) approval process, the protections for interstate commerce in §18(c), and the assumption of exclusive federal jurisdiction in §§18(f) and 18(h), would be undercut. In addition, by providing federal monies for states to develop and enforce their own occupational safety and health plans, Congress gave states the option of preempting federal regulations and provided a means to avoid duplicative regulation.

The Court next holds that a dual purpose state environmental safety law that has a purpose in addition to occupational safety and health cannot avoid OSH Act preemption merely because it serves several objectives. The Court reasons that it would defeat the purpose of §18 if a state could enact measures stricter than the Occupational Safety and Health Administration's and largely accomplished through regulation of worker health and safety simply by asserting a nonoccupational purpose for the legislation. Further, preemption analysis cannot ignore the effect of the challenged state action on the preempted field. The Court holds that a state-law requirement that directly, substantially, and specifically regulates occupational safety and health is an occupational safety and health standard within the meaning of the OSH Act, regardless of whether it has another nonoccupational purpose. Thus, a law directed at workplace safety is not saved from preemption simply because the state can demonstrate some additional effect outside the workplace. If a state wishes to enact a dual purpose law that regulates an occupational safety and health issue for which a federal standard exists, §18 of the OSH Act requires that the state submit a plan for federal approval. The Court observes that some state laws of general applicability cannot be characterized as occupational standards, even if they have a direct and substantial effect on worker safety, because they regulate workers simply as members of the general public. Finally, the Court holds that Illinois' interest in licensing occupations does not save from OSH Act preemption those statutory provisions that directly and substantially affect workplace safety.

In concurrence, Justice Kennedy would find express preemption from the terms of the federal statute, and would not hold that supplementary state regulation of an occupational safety and health issue does not rise to the level of actual conflict with the federal regulatory scheme.

In dissent, Justices Souter, Blackmun, Stevens, and Thomas would hold that as long as compliance with federally promulgated standards does not make compliance with Illinois' regulations impossible, the enforcement of the state law is not prohibited by the Supremacy Clause. The text of the OSH Act fails to demonstrate a clear congressional intent to preempt exercises of the states' traditional police power. Section 18(b) does not say that unless a plan is approved, state law on an issue is preempted by the promulgation of a federal standard and a state may not even supplement the federal standards. Further, the dormant Commerce Clause would resolve any undue burden that independent state regulation might impose, without any need to assume preemption.

[The circuit court decision is published at 21 ELR 20161.]

Counsel for Petitioner
John Simon
100 West Randolph, 13th Fl., Chicago IL 60601
(312) 814-3672

Counsel for Respondent
Terrence Flynn
70 West Madison, Ste. 2200, Chicago IL 60602
(312) 580-0100