Gade v. National Solid Wastes Management Association – Oral Argument – March 23, 1992

Media for Gade v. National Solid Wastes Management Association

Audio Transcription for Opinion Announcement – June 18, 1992 in Gade v. National Solid Wastes Management Association

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William H. Rehnquist:

We’ll hear argument now in No. 90-1676, Mary Gade v. National Solid Wastes Management Association.

Mr. Simon.

John W. Simon:

Mr. Chief Justice, and may it please the Court:

The growing awareness of the dangers posed by work on hazardous waste sites to the general public and the environment prompted the Illinois legislature to enact the Illinois Hazardous Waste Crane Operators Licensing Act and the Illinois Hazardous Waste Laborers Licensing Act.

These Illinois licensing acts ensure that only qualified competent people engage in these hazardous waste sites in Illinois by demonstrating through training, testing, and experience their competency.

The Seventh Circuit Court of Appeals held the Illinois licensing acts preempted under the OSH Act, the Occupational Safety & Health Act because, in addition to protecting the environment and the public safety, they also protect worker safety… workers regulated by OSHA.

We urge this Court to reverse the decision of the Seventh Circuit because Congress did not intend through the OSH Act to deprive States of their historical power to regulate entry into occupations for the protection of the public.

While we also urge this Court to find that the OSH Act does not preempt any supplemental State regulation, I would like first to draw this Court’s attention to the fact that the OSH Act does not preempt dual purpose legislation where the State has a purpose in addition to the worker safety for protecting the public and for protecting the environment.

Every other court of appeals and the Occupational Safety and Health Administration itself have… they have considered the question of whether the OSH Act preempts State licensing acts, have limited the preemptive effect of OSHA, and have found OSHA only preempts purely workers’ health and safety matters.

It does not extend to preempt matters which have as a purpose or effect the promotion of public health and safety and the protection of the environment.

Sandra Day O’Connor:

Mr. Simon, I suppose Illinois could have submitted a State plan under the statutory scheme.

John W. Simon:

Illinois could have submitted a State plan, that’s correct.

Sandra Day O’Connor:

Why did it not do so, if it wants to regulate in this field?

John W. Simon:

Illinois does not wish to displace the Occupational Safety and Health Administration standards or enforcement.

Illinois does not wish to regulate the process and means by which work is done on hazardous waste sites.

Illinois is only concerned with ensuring that competent people engage in this professional in Illinois, and the Illinois requirements do not displace or interfere with the Federal scheme with continues to be in place in Illinois.

Sandra Day O’Connor:

Well, under your view it sounds like section 18(a) is just superfluous because Illinois can adopt these regulations in any event.

John W. Simon:

I believe the section… the purpose of section 18 is to provide a mechanism whereby States may displace Federal standards and Federal enforcement and a mechanism by which the Secretary and the Federal Government can grant money to the States–

Sandra Day O’Connor:

What about 18(a)… subsection (a)?

John W. Simon:

–Subsection–

Sandra Day O’Connor:

It would appear that that’s just superfluous under your reading.

John W. Simon:

–I believe that subsection (a)… in the first place, subsection (a) does not express intent to preempt.

Subsection (a) expresses an intent to preserve to the States jurisdiction.

I believe that it’s… that section (a) is explained to the States that where OSHA has not promulgated a standard, your regulations in no way conflict with OSHA’s regulations.

Sandra Day O’Connor:

What’s the implication if OSHA has adopted regulations that are in conflict?

John W. Simon:

Your regulations may conflict.

We have to examine your regulations next to the OSHA regulations and if they do conflict, then your regulations are preempted, and that’s exactly how we think that the Illinois licensing acts should be judged.

If they conflict with an OSHA standard, they are preempted.

Sandra Day O’Connor:

Well, doesn’t Illinois require 4,000 hours of experience for a license holder in some area of this hazardous waste business, whereas the OSHA requirement would be 40?

John W. Simon:

That’s correct.

John W. Simon:

OSHA actually does not require any experience hours.

OSHA only requires training hours.

The Illinois licensing act for crane operators, hazardous waste crane operators, does contain a 4,000-hour requirement.

The 4,000-hour requirement serves the legitimate public purpose of ensuring that crane operators don’t receive their training on hazardous waste sites.

The OSHA standard does not also require this, but it is not impossible to comply with the Illinois regulations and the OSHA regulations and that does not create an actual conflict under this Court’s preemption jurisprudence.

The–

William H. Rehnquist:

Well, certainly there is a very arguable negative implication, Mr. Simon, from subsection (a) that where there is an OSHA standard in effect there is preemption.

John W. Simon:

–And that’s a negative implication.

This Court has found, however, in its jurisprudence that if you’re going to have express preemption it has to be expressed, and if you’re going to have implied preemption the structure and the language of the act and the purpose of the act have to support that… that inference… and in this case the structure, language and purpose do not support that.

The purpose of the OSHA act is to provide for every working man and woman in the Nation a safe and healthful conditions of work.

The purpose is not to eliminate duplicative regulation or to remove from jurisdiction areas of State concern.

William H. Rehnquist:

So you say we should analyze this case as one of implied preemption, not express preemption.

John W. Simon:

That’s correct.

The–

Antonin Scalia:

You still are saying, though… I still… I don’t entirely understand your response to Justice O’Connor as to subsection (a).

You’re saying that nothing in the chapter prevents any State agency from asserting jurisdiction under State law over any occupational safety or health issue with respect to which a standard is in effect.

There is jurisdiction even when a standard is in effect.

The only thing you cannot do is contradict it, right… is conflict with it?

John W. Simon:

–That’s right.

You cannot conflict with a standard.

That’s all that section says.

Antonin Scalia:

Well that… it doesn’t say that.

I mean, the section says nothing shall prevent any State from asserting jurisdiction with respect… over any issue with respect to which no standard is in effect.

Why would they say that?

John W. Simon:

I think that section 18 of the act is explaining to States how they can… that they should… it’s encouraging States to come in and take a role in the occupational area, and it’s saying where there’s no Federal standard in place you’re not precluded by any… I would make an analogy to a dormant commerce clause type thing.

There’s no… because OSHA has not worked here we’re not saying that therefore it’s precluded to States.

Go ahead and do it.

You’re not in conflict because there’s nothing there, and where there is something there then we’ll look to whether there’s a conflict.

I think that that’s a fair reading of this section 18(a).

I think that section 18(a) does not expressly say or expressly preempt supplemental State laws.

John W. Simon:

I think that the–

Antonin Scalia:

Why would a State proceed under (b) if it… why would a State want to proceed under (b), that is, assume its own responsibility for development and enforcement of health standards with respect to which a Federal standard already exists?

John W. Simon:

–Two good reasons.

One of them is that they then displace the Federal regulations and the Federal enforcement, and they do that themselves.

The second… and States who were sensitive to being told what to do by the Federal Government would enjoy this control over their own occupational safety and health concerns.

Antonin Scalia:

But you’re telling us that the Federal Government doesn’t control it anyway.

You’re saying even without going into subsection (b) a State can supplement the Federal regulation any way that it wants.

John W. Simon:

But it may not conflict with the regulation.

Any Federal regulation as its written, as its provided, is going to be enforced by the Federal Government.

Antonin Scalia:

Well, you don’t think that OSHA’s going to let any plan that they approve conflict with Federal regulation either, do you?

I mean, as a practical matter they’re not going to get anything approved under (b) that conflicts with the Federal regulations.

John W. Simon:

The OSHA regulations then do not apply in a State with a State plan.

The State regulations apply in a State–

Antonin Scalia:

I understand that, but I think it most unlikely that OSHA is going to approve any State plan that conflicts with a Federal regulation.

They may approve some that supplement it, but I can’t imagine that they’re going to approve any that conflict with it.

John W. Simon:

–When you say conflict with it, I believe you mean anything that provides less safety protection for the employees–

Antonin Scalia:

Right.

John W. Simon:

–And that’s correct, but you may provide more protection in a different way.

Antonin Scalia:

But you don’t have to go in under (b) to do that.

You can let the Feds issue their regulations.

You can let them spend their enforcement money, and if you want anything in addition, you just issue supplemental reg… there’s no reason to use (b).

John W. Simon:

The second reason is the grant to the States, which is a very important reason, I submit, that the State that submits a State plan gets 90 percent of the cost of developing a State plan from the Federal Government and it gets 50 percent of the cost of operating a State plan from the Federal Government, which is a very powerful motivation, and that was the motivation that Congress offered here to encourage the States to submit the State plans, was the Federal money.

John Paul Stevens:

May I ask on that point, if there’s no Federal… excuse me.

If there’s no Federal standard in effect in, say… in an area, and the State wanted to develop its own plan under (a), could it get Federal money doing that?

John W. Simon:

Not under the… not as I read the grants to the States.

John Paul Stevens:

Only if they’re replacing a Federal standard.

John W. Simon:

If they’re submitting a State plan, and they only submit a State plan if they want to regulate a matter regulated by OSHA.

Antonin Scalia:

What’s the provision that governs that?

Is that in your appendix here?

John W. Simon:

I do not include in my appendix the grant to the States.

John W. Simon:

I believe that’s 672.

It’s towards the end.

Antonin Scalia:

Yes, it’s in your appendix on page 13, I think… your brief appendix.

You have 672 in there.

John W. Simon:

Yes.

Anthony M. Kennedy:

You have really an identical problem in explaining the provisions of 667(h), do you not?

I don’t understand what the necessity for 667(h), the first clause, is under your view.

John W. Simon:

667(h) gives the Secretary authority to allow a State to enforce less restrictive State standards even after Federal standards are in place while the State is attempting to come into compliance and get its State plan approved by the Secretary.

So we’re not trying to enforce less restrictive State requirements.

We want OSHA to continue to enforce the OSH requirements in Illinois.

Anthony M. Kennedy:

But it doesn’t say less restrictive, and if it’s less restrictive… is it your view that a less restrictive legislation would displace an OSHA regulation?

John W. Simon:

If it conflicts with it, certainly it would… no, a less restrictive regulation on the subject, if OSHA says that workers have to wear helmets and States say they have to wear goggles, workers can’t do both, certainly the OSHA requirement supersedes the State requirement, but under (h) the Secretary could agree that that State could just require goggles.

Section (h)… it says that the Secretary may enter into an agreement with the State under which the State will be permitted to continue to enforce one or more occupational health and safety standards in effect in such State until final action is taken.

The Seventh Circuit went back and looked at the legislative history and found that an earlier draft had said that the Secretary could agree that they could enforce more restrictive argument.

When they took out the more restrictive, now (h) means that you can enforcement less restrictive requirements.

The Secretary can agree to that.

That is an accommodation to the States.

It is not… and it makes sense because they don’t want… if the State’s going to have a State plan, it’s going to have State standards, there’s no sense making them adjust to the Federal for 2 years until their plan goes back and then they can go back to their own plan.

Anthony M. Kennedy:

So under your view, the Secretary can agree to suspend OSHA regulations under (h).

John W. Simon:

For the period while the State plan approval is pending.

William H. Rehnquist:

Where is (h) set out, Mr. Simon?

The Government refers that as a transitional–

John W. Simon:

That’s correct.

William H. Rehnquist:

–That expired in 1972.

John W. Simon:

Exactly, Your Honor, and it doesn’t have any more continuing effect.

David H. Souter:

Well, did it expire in ’72, or was that the minimum period of its application.

I thought it applied whenever a State government proposed a supplanting plan of its own.

John W. Simon:

I think the terms of it state specifically what the answer to that question is, and I thought it was set–

David H. Souter:

It’s at the bottom of page 12 of your appendix, of your blue brief.

At page 12 and 13 of the appendix it says that the period covered would be until final action is taken by the Secretary with respect to a plan submitted by a State under subsection (b), or 2 years from December 29, 197… ah, whichever is earlier.

David H. Souter:

Okay.

John W. Simon:

–The Illinois licensing acts which promote public safety and environmental protection in addition to occupational safety should not be preempted by the OSH Act.

The… if this Court does find preemption in some cases, the Court nevertheless should not preempt a dual purpose statute like licensing acts.

It should rather consider whether it has a legitimate purpose and whether it has selected a means which is plausibly related to that legitimate purpose.

This squares with the approach of the other circuit courts that have addressed this issue and it also squares with this Court’s precedent and jurisprudence in preemption cases.

The case that I’m thinking of where I drew this test from is the Northwest Pipeline case, where this Court recognized the permissible purpose of regulating production of natural gas and this Court recognized an impermissible purpose of regulating the sale and transmission of natural gas in interstate commerce.

The Kansas statute in that case this Court found had a permissible purpose of regulating production and a means which plausibly was related to that purpose, and it affirmed the validity of that Kansas regulation notwithstanding the fact that it impacted on the sale and transmission of natural gas in interstate commerce, the area prohibited.

The Illinois licensing acts similarly have a permissible purpose.

Clearly OSHA did not preempt States rights to regulate its environment in public safety.

William H. Rehnquist:

But the reason you regulate entry into this occupation is partly for safety, is it not?

John W. Simon:

That’s correct.

William H. Rehnquist:

But you say it’s a different kind of safety than OSHA is supposed to provide.

John W. Simon:

The occupational… OSHA regulates occupational safety exclusively.

The Secretary of Labor has in fact disclaimed any responsibility or any authority to regulate public health and safety or the environment, yet public health and safety and environmental concerns are clearly present on hazardous waste sites and Illinois is attempting to address these concerns which also further OSHA’s purpose of worker safety with these licensing acts by requiring competency in the individuals that engage in these professions.

William H. Rehnquist:

So what is Illinois getting in addition to what OSHA gets by these regulations, say at a hazardous waste site?

John W. Simon:

Illinois gets… one, that it gets a superior form of enforcement, because it’s very easy to enforce.

Licensing acts are a superior means–

William H. Rehnquist:

Yes, but you could say that about an Illinois regulation governing the work place, that you require 4,000 hours and we require more than OSHA does, but I think that would be very arguably preemptive.

John W. Simon:

–I think that the… Illinois, when it’s regulating its environment, is not limited to accept what OSHA does to regulate workers, and Illinois here wants a licensing scheme because that’s the way in which Illinois historically regulates public safety for professionals.

William H. Rehnquist:

But who benefits from the Illinois regulation that wouldn’t benefit from the OSHA regulations?

John W. Simon:

The Illinois regulation… I believe the public benefits more from the Illinois regulation, and I believe the environment benefits more from the Illinois regulation.

William H. Rehnquist:

Why is that?

John W. Simon:

Illinois require… training requirements will be implemented by the Illinois Environmental Protection Agency which will approve training courses and they have as their principal concern environmental concerns, whereas the OSHA certification of training would go towards exclusively matters to protect workers.

William H. Rehnquist:

But these are… we’re talking about the same hazardous waste site that is regulated by both OSHA and by the Illinois act.

John W. Simon:

Yes.

They… many… most of them are on the same sites, and we don’t want to discount the fact that we believe we do benefit from those regulations, but we don’t think the fact that we benefit from that precludes us from requiring the additional training which we think furthers our public health and safety environmental purposes.

Not only does Illinois submit that as dual purpose legislation the Illinois licensing acts are not preempted by the OSH Act, but we submit that a careful reading of the language and the structure of the OSH Act, in light of this Court’s preemption jurisprudence, reveals that States… that no supplemental legislation is preempted provided it does not conflict with the OSH Act.

This Court begins its preemption analysis with the presumption that States’ historic exercise of their police powers to protect their safety is not to preempt it unless that was the clear and manifest purpose of Congress.

Illinois’ licensing acts enjoy this presumption of validity.

This Court finds express preemption only when the explicit preemptive language is used in the Statute.

John W. Simon:

No explicit preemptive language is used in this OSHA act anyway.

Antonin Scalia:

But there is some preemption, or once you have a scheme in which there is some preemption on its face, do we give any deference to the agency’s determination of what the precise scope of that preemption is?

John W. Simon:

You do if Congress delegated that authority to the agency.

In this case, Congress did not delegate authority to the agency to preempt, and in this case OSHA did not attempt to preempt with the hazardous waste operation standard.

Antonin Scalia:

Suppose the OSHA regulation said at the end of it, moreover no State shall have other regulations dealing with training necessary for workers.

Would that make a difference?

John W. Simon:

I don’t believe it would make a difference under the argument that I make, because I don’t believe that Congress delegated authority to OSHA to preempt a State supplement–

Antonin Scalia:

No, no, I’m saying… I’m saying assuming that we agree that there is some preemption, assuming we vote against you on that, and just as to the issue of the scope of preemption, whether it preempts not only State laws directed at the same values but also preempts State environmental laws, why shouldn’t we listen to OSHA on that?

John W. Simon:

–I think that in matters of the… the case that I found that directly answers this question was United States v. North Dakota, where this Court said that in matters of whether Congress has given power to the State or to the Federal Government to preempt, the Court looks to the command of Congress directly and does not give deference to the agency’s interpretation of the command of Congress, and I think this Court should do that in this case as well.

Antonin Scalia:

That would work the other way, too.

That is, if OSHA says notwithstanding these regulations the States shall be free to issue contrary–

John W. Simon:

That’s correct.

Antonin Scalia:

–Contrary regulation we would ignore that, and we would–

John W. Simon:

If that were–

Antonin Scalia:

–We would require the OSHA rule to preempt even though OSHA doesn’t want it to preempt.

John W. Simon:

–If that were the command of Congress, then I think you have to follow the command of Congress.

Antonin Scalia:

It seems very strange to me.

John W. Simon:

Well, in this case it’s not a question, because in this case the agency… OSHA has not asked the Court to interpret this… their regulation as preempting supplemental State regulation.

Antonin Scalia:

I thought the Government is on the other side of this case.

John W. Simon:

The Government has taken a position in this case which is contrary to the historic position taken by the Occupational Safety and Health Administration.

In an instruction interpreting the preemptive effect of section 18(a) on State without State plans, the Occupational Health and Safety Administration took the position that their State law, which was on its face directed at a class of persons larger than employees, was not preempted by an OSHA occupational standard.

I think that their position in this case is a litigation position, and even if the position of OSHA should be given deference it would be their historic position interpreting their own–

This Court has recognized that there is room for supplemental State legislation over matters of occupational safety as recently as 1985.

In Metropolitan Life Insurance Company v. Massachusetts, where this Court stated that States possess broad authority under their police powers to regulate an employment relationship to protect workers within the State, child labor laws, minimum and other wage laws, laws affecting occupational health and safety are only a few examples.

The OSH Act is not intended to remove the area of occupational safety and health from the State legislation, and it should not be… and a clear reading of the language of the act does not support any preemption of supplemental law which does not conflict with OSHA.

William H. Rehnquist:

Even though it has the effect of regulating job site safety practices.

John W. Simon:

That’s correct.

If it has the… well, excuse me.

If it has the effect of regulating job site safety practices then I would concede that that would be an occupational standard, but I do not believe that an occupational standard, if it does not conflict with the OSHA act, is preemptive.

I’d point out that our training requirements are not occupational standards, because OSHA… the Congress gave authority to regulate occupational… gave authority to promulgate standards under 655, whereas it gave authority to the Secretary to issue training requirements under 670.

William H. Rehnquist:

Would you agree that your standards do regulate job site safety practices?

John W. Simon:

No, I do not agree that our standards regulate job site safety practices.

I do not agree that we have standards, either.

Ours is a licensing act, which I think is distinct from a standard.

It does not displace any of the OSHA standards.

I would ask this Court to reverse the decision of the Seventh Circuit.

William H. Rehnquist:

Very well, Mr. Simon.

Mr. Bliss.

Donald T. Bliss:

Mr. Chief Justice, and may it please the Court:

This morning I hope to establish three points.

First, the language, structure, and purpose of the OSH Act expressed Congress’ intent to allow States to duplicate or supplement an OSHA standard only pursuant to an approved State plan.

Second, the preemptive reach of the OSH Act as applied by the court below is narrow.

It applies only to State occupational health and safety standards that clearly directly and substantially intrude upon the OSHA-regulated employer-employee obligations in a specific work place.

And third, when a State occupational standard also serves other purposes, for example environmental protection, the Seventh Circuit test would preclude only those provisions of State law that directly intrude upon the federally regulated work place.

Under State law severability analysis, other provisions would remain valid.

Unlike the other circuits that have addressed this issue, the Seventh Circuit avoids weighing the legitimacy or substantiality of various State legislative purposes, and it focuses instead on the effect of the State standard on the OSHA-regulated work place.

It is important here to look at what Illinois actually did, in addition to what Illinois purports to be the purpose of these statutes.

These Illinois statutes establish training, experience, and certification conditions specifically for workers at hazardous waste sites who already are subject to comprehensive OSHA standards that address the very same topics for the very same employees.

John Paul Stevens:

May I ask, Mr. Bliss, if a driver or an operator of one of these cranes complied with all the OSHA standards but nevertheless had an accident of some kind, could an injured party sue at common law on the theory that he was inadequately trained?

Donald T. Bliss:

Yes, he could, Justice Stevens.

John Paul Stevens:

So they could have a common law rule that was more protective than the–

Donald T. Bliss:

The OSHA act specifically reserves to the State common law remedies.

They are not preempted, and a common law remedy is not a standard, and therefore it would not be preempted by the OSHA act, and section 4(b)(4) provides another reason to demonstrate that when Congress decided to reserve specifically powers to the State it said so quite precisely, and common law tort actions arising out of employment was one of the areas expressly reserved to the States by the statute.

Anthony M. Kennedy:

–What is the statutory section that you refer to?

Donald T. Bliss:

It’s section 4(b)(4).

You’ll find that in the appendix to the Respondent’s brief 2(a), 653(b)(4).

The trial court below found, as a matter of fact, that–

John Paul Stevens:

Of course, that section isn’t just limited to common law.

It’s common law of statutory rights, and so forth.

Donald T. Bliss:

–That’s correct, Your Honor.

John Paul Stevens:

But you say that it means to draw a distinction between common law rules and statutory rules.

I mean, (4)(b)(4), it says affect in any other manner the common law or statutory rights, and so forth.

Donald T. Bliss:

And those are preserved to the State–

John Paul Stevens:

Well then, why isn’t this statutory right preserved?

Donald T. Bliss:

–These are statutory rights and duties that arise out of injuries, disease, or death of employees arising out of employment, and it’s specifically intended to address those rights to which you referred in which you may have a personal right to bring an action for negligence and so forth, and they do not address the OSHA standards–

John Paul Stevens:

Could a State pass a law saying that it shall be negligent for any employee to operate a crane if he hasn’t had 40,000 hours of time on similar equipment?

Could it be negligence as a matter of law?

Donald T. Bliss:

–That certainly would be a closer question, but in our view if it establishes a standard that directly regulates worker health and safety it would be preempted by the OSHA act.

John Paul Stevens:

If it’s in the statute, but not if it’s a common law rule.

Donald T. Bliss:

That’s correct.

Antonin Scalia:

I must say I don’t understand your answer at all, because this provision, as Justice Stevens points out, covers statutes as well as common law.

It refers to both, and he gives you an example that is precisely this case.

It’s a statute.

It does exactly what this case does, and for some reason you say a statute is not covered but the common law is.

Why?

What’s the basis for the distinction.

It’s not in the text of the statute.

Donald T. Bliss:

The basis for the distinction is that if the State statute establishes a standard that regulates worker health and safety by establishing conditions of employment that constitute a standard, then it would be preempted by the OSHA act expressly.

Antonin Scalia:

But not conditions for liability.

Donald T. Bliss:

Conditions for liability would raise a separate and more difficult question, but it, too, would be preempted if the direct, substantial effect of it is to intrude into employer-employee obligations in the work place as they are regulated by the OSHA standard.

Antonin Scalia:

Well, I would think that that’s your answer, and that would be the same whether it’s common law or statute, wouldn’t it?

You mean, if the common law court finds that you need 4,000 hours of training or else it’s negligent, that’s okay, but not if there’s a statute, even though this section says common law or statutory rights, duties, or liabilities?

Donald T. Bliss:

The standard would regulate prospectively.

It would establish the standards against which the employee’s practices should be measured, and that would be preempted.

The common law action under tort claiming negligence would be a remedial action that would be preserved by this section 4(b)(4).

Antonin Scalia:

So all the State really has to do is do all this regulation through the courts rather than through the statute.

That’s what the Federal Government was concerned about, doing it through statutes.

Donald T. Bliss:

That is the direction… that is the purpose of the express preemption of OSHA.

However, the State cannot avoid the congressional reach of preemption simply by choosing a different form over substance.

The Court has to look specifically at what the State actually does, and if the effect of a State’s action is, as it is here, to directly and substantially intrude into employer-employee obligations that are already governed by OSHA standards, then regardless of the form of the State action, it would be preempted, but the Court would look at the form and the direct effect of what the State does on operation of Federal law, not the characterization that the State may ascribe to the action that’s taken.

Donald T. Bliss:

Here, the Illinois statute states on its face an articulated purpose to promote job safety and to protect life, limb, and property.

Let me turn to the first point… express preemption.

Simply because Congress has not chosen to use mandatory words of prohibition does not make its intent less clear.

Read in its entirety, section 18 of the OSH Act sets forth an explicit framework for cooperative federalism in which States may regulate freely in areas where there is no Federal standard, but where there is a Federal standard they may assume responsibility for developing and enforcing standards only by obtaining Federal approval of a State plan.

William H. Rehnquist:

You don’t mean to say that this language expressly preempts Illinois, do you, because I think we’ve analyzed a little differently in cases where there’s express preemption and implied preemption.

Donald T. Bliss:

Mr. Chief Justice, we believe that the language of section 18 in its entirety is explicit language that expressly preempts OSHA standards regulating worker health and safety relating to the issue addressed by the Federal standard.

William H. Rehnquist:

So you say this is a case of express preemption.

Donald T. Bliss:

This is very definitely a case of express preemption.

John Paul Stevens:

Where’s your preemptive language?

I mean, you’ve read Judge Easterbrook’s opinion, I’m sure.

He doesn’t find preemptive language, and I don’t, either.

Donald T. Bliss:

The preemptive language is in section 18(a), where it specifically reserves to the States–

John Paul Stevens:

It says nothing shall prevent State agencies from so forth–

Donald T. Bliss:

–Except where no standard is in effect.

John Paul Stevens:

–Right, and it implies that if a standard is in effect there may be preemption.

Of course, if there’s a conflict there’ll be preemption, but it doesn’t say there must be preemption.

Donald T. Bliss:

Reading section 18(a) and section 18(b) together, and section 18–

John Paul Stevens:

Well, section (b) deals with the situation where the State wants to preempt the Federal Government.

Donald T. Bliss:

–But it makes clear that if the State wishes to develop any standard… it doesn’t say exclusive responsibility, but if the State wishes to develop any standard, it must submit a plan for approval by the Secretary, and reading 18(a) and (b) together, the only logical conclusion that can be drawn from it is that the States, if they wish to regulate in areas subject to a Federal standard, must seek approval of a plan, and this is further supported by subsection (h).

John Paul Stevens:

Well, why isn’t a perfectly logical reason to say under (b) if they want to displace the Federal plan they’ve got to get an approval, but if they merely want to supplement it, there’s no objection.

There’s nothing in the statute that provides an objection to a supplement, is there?

Donald T. Bliss:

The statute has no provision to allow for supplementation.

Indeed, Congress considered language in OSHA legislation that was introduced by… or proposed by the Nixon administration that specifically would have provided for supplemental–

John Paul Stevens:

No, there’s nothing in it that expressly permits it, but there’s nothing in it, either, that expressly prohibits it.

Donald T. Bliss:

–The explicit prohibition we find can be inferred from the language structure and purpose of the act.

The purpose of the act clearly was to ensure coordinated, cooperative federalism.

It was to ensure that where the States–

John Paul Stevens:

But that’s a different argument from an express preemption argument.

That’s an implied preemption argument.

Donald T. Bliss:

–Implied… express preemption can be derived from the language of the statute, even if there is not the magic word of prohibition.

Donald T. Bliss:

If the language of the statute clearly speaks, and the structure and purpose of the statute clearly speak to preempt the States from issuing supplemental regulation, we believe that is a form of express preemption.

William H. Rehnquist:

Do you have any case authority for the proposition that you just stated?

Donald T. Bliss:

Well we… for example, in Pacific Gas and Electric at 461 U.S. at 210, we believe the reservation of authority to the States concerning everything except radiological safety hazards was construed to mean that the States were preempted and regulated–

William H. Rehnquist:

Did the court treat that as a case of express preemption?

Donald T. Bliss:

–In that context, the language in the court supports that proposition, and we think in other cases like Jones v. Rath Packing the language of the court does not expressly prohibit action, and yet the inference has been made from the language that–

William H. Rehnquist:

Well, we have held many State statutes and regulations impliedly preempted and reached the result that you want us to reach in this case, but I don’t think it helps jurisprudence to try to push something over into the field of express preemption where really the language isn’t expressed.

As you answered Justice Stevens, you have to infer something from two other provisions.

I would think that is not express preemption.

Donald T. Bliss:

–Well, Mr. Chief Justice, we would hope that you would look at this first as explicit language in the statutes and in the structure of section 18 and indeed in other provisions, such as (4)(b)(4), that demonstrate the clear intent of Congress, that State worker health and safety standards should be preempted.

This has been the longstanding interpretation of OSHA.

It has been the position taken by every lower court, including six different circuits who have addressed the issue.

Indeed, it’s the position taken by the amicus State Attorney Generals and the AFL-CIO in briefs supporting the State of Illinois, and the State of Illinois itself took this position before the Seventh Circuit below on page 14 and 15 of the briefs they filed in the Seventh Circuit.

Sandra Day O’Connor:

Well, Mr. Bliss, just how clear is it that Congress wanted to prevent a State from adopting some heightened worker safety requirement that technically could be complied with along with any lesser requirement of the Federal regulation.

I mean, how clear is the statute as to that?

Donald T. Bliss:

Justice O’Connor, we think it’s absolutely clear, because Congress… the one thing Congress intended to accomplish was coordination of standard-setting in related issues, and that would be totally undermined by what Illinois has done here.

Sandra Day O’Connor:

Well then–

Donald T. Bliss:

If the State can go off and regulate piecemeal without coordinating with the Federal Government, then the purpose is totally frustrated… the objective and purpose of section 18 is totally frustrated.

So you can reach the same result–

Sandra Day O’Connor:

–But the whole thrust of section 18 is to indicate that a State can have greater requirements than the Federal.

Donald T. Bliss:

–Absolutely, and a path is set for the State to do that precisely by submitting a plan for approval by the Secretary of Labor.

That will ensure the Secretary of Labor will have to review it and ensure that it is at least as effective as the Federal standard, and in the face of products in interstate commerce the Secretary will have to make the judgment whether it’s necessary to meet local compelling conditions and does not pose an undue burden on interstate commerce under section 18(c).

All of that would be rendered meaningless if the State can regulate piecemeal and ignore the explicit process set forth by Congress that requires the State, if it wishes to supplement, to file a plan with the Secretary of Labor.

John Paul Stevens:

No, but (b) doesn’t talk about supplementing, (b) talks about displacing the Federal regulation.

Donald T. Bliss:

(b) talks about assuming responsibility for developing–

John Paul Stevens:

Assuming entire responsibility–

Donald T. Bliss:

–And enforcing standards.

John Paul Stevens:

–And if they comply with (b) then the Federal Government’s out of the picture entirely, isn’t it?

Donald T. Bliss:

Over a period of time, but it would be a 3-year conditional period in which there would be–

John Paul Stevens:

I don’t think (b) provides the answer to the question.

Say you’ve got a lot of regulations about operating these cranes, but there’s just nothing said about whether they have to wear protective gloves or goggles or a helmet or something, and the States let’s say omitted this, we think they ought to wear gloves, and it doesn’t conflict with anything, and you say they can’t do that.

Donald T. Bliss:

–That’s correct, and we think it’s a combination of subsection 18(a) and (b) read together along with subsection (h)–

John Paul Stevens:

And even if there’s not even the remotest possibility of conflict between the two systems.

I mean, as I say, an example, you have to wear a helmet when you’re out on the job site, and that’s just not in the OSHA regulation.

You say you can’t do that.

Donald T. Bliss:

–That’s correct.

It does not have to be a conflict.

It’s simply… the State simply has to have a standard that intrudes directly into the employer-employee obligations that are already regulated by the OSHA standard, and we think that test is indeed a narrow and appropriate test, because it asks first has the State issued a worker health and safety standard, and OSHA defines a standard in part as conditions reasonably necessary or appropriate to provide safe or healthful employment and places of employment.

Well, that’s exactly what Illinois has done here.

It’s established conditions of training and experience necessary in Illinois’ judgment to provide a healthful place of employment.

David H. Souter:

Mr. Bliss, assuming that that would qualify within… to be covered by the text of subsection 18(b), isn’t it also the case that the heading to 18(b), the bold print, suggests a somewhat narrower scope, because the bold print refers specifically to State standards to preempt applicable Federal standards.

Isn’t that a rather more narrow category than the text of that section might suggest?

Donald T. Bliss:

Justice Souter, we don’t believe that the heading would narrow the plain language and meaning of the actual–

David H. Souter:

Well, what if it isn’t plain?

Donald T. Bliss:

–Section 18(b), but in any event we accept that the purpose of 18(b) is to allow States to displace Federal regulation, and we accept that Congress in–

David H. Souter:

Well, if that’s the case, then the mere fact that you have a State standard addressing the same issue as a Federal standard is not enough to get you to a point of preemption.

If the object of (b) is displacement of the Federal scheme, then the mere fact there may be two standards, one State, one Federal addressing the same issue, does not get you to the conclusion of preemption, isn’t that correct?

Donald T. Bliss:

–We believe it gets us to that conclusion if you read 18(a) and (b) together, and it leaves the–

David H. Souter:

Oh, but 18(a) can be read simply to mean that the act itself does not… or the mere passage of the act does not exclude the possibility of State regulation.

I mean, it refers explicitly to nothing more than the case in which there is no Federal regulation.

Donald T. Bliss:

–If you take 18(a) and (b) and (h), (h) for example, which provided for this transitional period that States indeed could supplement Federal standards but only for a 2-year period and only if the Secretary agreed–

David H. Souter:

Isn’t (h) probably your strongest argument?

Donald T. Bliss:

–I think (h) helps… I think (h) helps, (f) helps… you have to read the entire statute in context, and together it leaves us with no other logical conclusion but that the States, if they wish to develop a standard relating to an issue addressed by a Federal standard they must do it through the planned process.

OSHA leaves the States three options.

They can regulate in areas where there is no Federal standard.

They can regulate the environment and public safety directly and not by the means of regulating corporate health and safety, or they can submit a State plan.

They have three alternatives.

In this case, Illinois has rejected all three alternatives and done the one thing that section 18 would deny it, namely to regulate piecemeal in an area without a State plan where there is a Federal standard already in place, and indeed in this case the second question that the Seventh Circuit would ask is does the State standard regulating worker occupational safety relate to an issue, and OSHA can define that issue with an effort to accommodate federalism.

As you know, under Federal executive order OSHA seeks to try to accommodate the State’s interest to the greatest extent possible and can define the standard in a narrow way so as not to intrude on general purpose or obligation State laws, and here, however, the issue is the regulation of hazardous waste workers at hazardous waste sites, which is precisely the issue that Illinois addresses.

Indeed, Illinois statute is more narrow than the OSHA standard, because it doesn’t apply to all the hazardous waste sites that would be subject to the Federal-standard.

Finally, the Seventh Circuit through its severability analysis would seek to preserve those elements of the State law which regulate the environment or other issues that are not directly and substantially impacting the operation of the Federal law.

Donald T. Bliss:

On the dual purpose regulation issue, what we have in this case is all the public benefit that Illinois ascribes to its State laws derived from workers’ safety.

It’s only when you hire a crane operator who has 4,000 hours of experience, and that crane operator presumably then operates safely and has fewer accidents, that there may be a public benefit that flows from that, so that the public benefits attributed to the Illinois statute are exclusively derived from the workers’ safety practices which are precisely what is regulated by OSHA, and that’s why this law must be preempted.

In conclusion, the Illinois acts constitute worker health and safety standards that address the very same topics… training, experience, competency and certification… that are addressed comprehensively by the OSHA standard.

The Illinois acts apply only to hazardous waste workers who are subject to the OSHA standard.

Therefore, under section 18, Illinois may not duplicate or supplement the OSHA standard without filing a State plan.

Illinois claims an exemption from this process merely because it has asserted an additional public purpose for what is plainly worker-oriented, narrow legislation, but as I’ve mentioned, the public benefits from the Illinois training and experience provisions are derived solely from safe conduct in the work place, which is precisely the issue addressed by OSHA.

Antonin Scalia:

Yes, but I… is… never mind.

You’re time’s up.

Thank you, Mr. Bliss.

Mr. Kelley, we’ll hear from you.

William K. Kelley:

Mr. Chief Justice and may it please the Court:

I will first try to allay the Court’s concerns regarding the express preemption question.

The position of the agency from day 1 has been that the act is expressly preempted.

We believe that is correct.

Section 18(a) does not make sense on the State’s interpretation.

It’s entirely superfluous.

It does not say that the State is free to enforce a standard that’s not in conflict with existing Federal standards.

It says the States are free to enforce standards if no Federal standard exists.

Those are far different propositions, in our view, and that reading of section (a) is confirmed by the rest of section 18, including section 18(b), section 18(f), and section 18(h).

William H. Rehnquist:

Mr. Kelley, where do you find language in those sections that says in so many words that a State shall not regulate in a particular area?

William K. Kelley:

Your Honor, section 18(b) says that if a State wishes to assume responsibility for enforcing an occupational safety standard relating to an existing OSHA standard, it shall submit a State plan.

It seems to us that a supplemental State regulation nonetheless relates to an existing Federal OSHA standard if it’s connected.

William H. Rehnquist:

But that section doesn’t say what the consequence is of failure to submit a plan.

William K. Kelley:

We believe that section 18(a), which says that a State may enforce if there is no Federal standard in place, is properly read to mean that the State has to follow the rest of the procedures provided in section 18 if a Federal standard is in place.

William H. Rehnquist:

But you derive that by implication.

I’m not saying by perfectly sound implication, but you derive it nonetheless by implication, not by express language.

William K. Kelley:

Mr. Chief Justice, our view is that the statute can only be read… can only be made sense of if it is preemptive, and in that sense we believe the statute is expressly preemptive.

It is not–

William H. Rehnquist:

But I don’t think… your sentence is a non sequitur.

There are many statutes that you come to the conclusion that it can only make sense if this particular State action is preemptive, but nonetheless, you don’t say it’s expressly preemptive.

William H. Rehnquist:

Express means in so many words, not clearly or positively.

William K. Kelley:

–Mr. Chief Justice, this Court has said that express preemption is demonstrated if that is the clear and manifest reading of the statute.

I would grant that whether one wants to call this express or implied, the result should be the same here.

When we same this is not implied preemption, we don’t mean that in a historical sense of occupying the field.

On the State’s interpretation of section 18, section 18(h) does not make sense, nor does section 18(f).

Section 18(f) says that when the Secretary withdraws plan approval the State plan will cease to be in effect, but that the State may continue to assert jurisdiction over cases that were commenced prior to withdrawal of plan approval.

On the State’s theory of the case, the only effect of withdrawal of the plan approval should be that the Federal standard becomes operative again.

It should have no effect on the operation of the State standards.

That plainly, though, is not the case.

Antonin Scalia:

Mr. Kelley, maybe we should have three categories.

Maybe we should have statutory preemption that is express, statutory preemption that is implicit, and what you might call occupation of the field, where the text does not give you any particular indication of preemption except in the sense that it demonstrates such a total regulation of the area that you are willing to leap to the conclusion of preemption.

William K. Kelley:

Your Honor, we would not object to that.

That, in short, is our reading of the statute, and on the States theory, a State would be entitled to entirely duplicate the Federal scheme and enforce it alongside the Federal scheme, and it seems to us that that is inconsistent with what Congress enacted in the act.

It seems plain that the act envisions one enforcement authority, and only one, once OSHA has acted, and the State has the option to reassert its authority if it wishes under the State plan process.

Sandra Day O’Connor:

Mr. Kelley, are you going to address the meaning of section 653(b)(4), which says that nothing in the chapter will affect common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees?

William K. Kelley:

Your Honor, we believe that section 4(b)(4) further supports our reading in the statute as preemptive.

With respect to the question of statutory rights being included in that section, we don’t believe that that means that a State may… we don’t believe that that should be read to entirely undermine what section 18(b) erects.

It is not the same thing to say that a statutory regulation providing that people shall order their affairs in a certain way is the same as a statute providing a right to someone who’s been harmed retrospectively, and quite simply, if the statute is read as broadly as the State has suggested, at least if that section is, then section 18(b) would be entirely undermined and, moreover, on our view if a common law cause of action would constitute an occupational safety standard within the meaning of section 18(b), it also would be preempted.

Antonin Scalia:

I’m not sure I understand what you’re saying 653(b)(4) does.

What kind of thing does it say is not preempted?

William K. Kelley:

It says, Your Honor, that… I believe the particular focus of section 4(b)(4) was to preserve State Worker Compensation schemes.

Now, obviously the language went further than that, but that was the background to that section.

With respect to the common law preservation of remedies, that section seems to us as properly read not to displace the cause of action on the part of an employee who’s been injured in the work place.

Antonin Scalia:

But it says duties as well as remedies.

It doesn’t say just remedies.

Statutory… common law statutory rights, duties, or liabilities of employers, so that would include the duty for training your coworkers a certain number of hours, I assume.

William K. Kelley:

It could be read that way, Your Honor, but we don’t believe it should be read that way for a two reasons: 1) if it were read that way, it would undermine entirely the notion of occupational standards under the act, and secondly, if you did read it that way, we believe nonetheless that a statutory duty would… in the meaning of section 4(b) would not be the same thing as not… I’m sorry, could be the same thing as an occupational standard within the meaning of section 18, section 18 meaning the definitional section, section 3(8).

Byron R. White:

Well, literally read, I suppose under… in that section 4, it would even save from preemption a State standard that conflicted with the–

William K. Kelley:

It would, Your Honor–

Byron R. White:

–And–

William K. Kelley:

–And that is the reason that we–

Byron R. White:

–Let me just ask you more.

It says the… it won’t diminish in effect in any manner the common law or statutory rights or duties or liabilities under any law.

That’s really… what’s going to be… what does it refer to, under any law?

Statutory rights under any law, common law duties under any law?

William K. Kelley:

–Justice White, you’re pointing out that… the problem with reading that section as broadly as one possibly could, and if one were to read that, it would seem to me that not only the State but every court that’s considered this issue would have had no need to address section 18 at all, and would have read section 4(b) entirely to preserve State authority in every instance, and that clearly is not the proper reading.

OSHA has not changed its position on this issue, contrary to what the State has asserted here.

From day one, OSHA has said that the act is preemptive.

From day one, OSHA has said that dual purpose regulations, if they affect workers… I’m sorry, if dual purpose regulations, if they affect a class outside of workers and only outside workers are not preempted to that extent, that is not the same thing as saying that a dual purpose regulation that regulates worker safety but has an incidental effect outside the work place are not preempted and are not worker safety standards within the meaning of the act.

OSHA’s position from day one has been that, and that is what we are here today saying.

Byron R. White:

From the outset.

William K. Kelley:

That is true, Your Honor, but we believe that it certainly is a reasonable reading of the act, and–

Byron R. White:

It might be consistently wrong.

William K. Kelley:

–It may be consistently… we don’t believe it was consistently wrong, but it certainly has been consistently reasonable, and we believe therefore is entitled to deference from this Court.

Sandra Day O’Connor:

Well, is it clear that we should defer to State agencies in matters of this kind of preemption?

William K. Kelley:

It has not been a proposition that has been clearly established with respect to preemption, Your Honor.

We believe that deference in that context would be appropriate, and this Court has frequently deferred to an agency’s interpretation of whether a regulation is preemptive as opposed to whether a statute is preemptive, and we don’t believe there is a significant difference between the two.

William H. Rehnquist:

Thank you, Mr. Kelley.

Mr. Simon, you have 4 minute remaining.

John W. Simon:

Thank you, Mr. Chief Justice.

I think that the Solicitor General is correct when he was saying he’s asking the Court to create a new category of preemption, and I really think that the State… that this Court’s jurisprudence on preemption has been clear that you’re not to preempt… that Congress does not preempt State law unless there was the clear… its clear manifest purpose, and it say so expressly, or if it is evident under the categories of implied peremption which this Court has traditionally set forth and been consistently followed.

I think that to create a new category of inferred express preemption would not only create confusion in the jurisprudence of the Court, but it would certainly expand the preemptive effect of Federal regulations, and we would have lower courts preempting State laws left and right because of inferring express preemption, and I strongly discourage the Court from following that path.

The Illinois licensing acts are a historic exercise… or, an exercise of the State’s historic police power to protect the public and the environment, and this means of requiring competency for those engaged in these hazardous occupations is a longstanding mechanism to accomplish its public safety purpose, and it was not the intent of Congress in enacting the OSHA act to preclude States from pursuing this means to protect the public safety.

Antonin Scalia:

Mr. Simon, you haven’t… one of the things that troubles me about the State’s position here is I don’t understand why 667(c)(2) would be so concerned about making sure that any plan that the Secretary approves will not unnecessarily disrupt interstate commerce.

John W. Simon:

66–

Antonin Scalia:

667(c)(2), which are the conditions for approval of the plan, and it says the Secretary has to make sure that the plan won’t needlessly… when applicable to products which are distributed and used and they are required by compelling local conditions and they do not unduly burden interstate commerce.

That is one of the conditions.

That seems very strange, to put that next to a system which says, however, if you don’t want to have a State plan, you can burden State commerce all you like, regardless of local conditions, up to the point where the commerce clause is violated.

John W. Simon:

–The section that you just read starts out with when… it talks about products in interstate commerce, so we talk about… we’re dealing with products there.

Antonin Scalia:

Right.

John W. Simon:

The Illinois hazardous wastes licensing acts do not deal with products whatsoever.

I don’t think that (c)(2)–

Antonin Scalia:

Oh, I’m not saying it applies to your act, but it does go to whether the whole act should be interpreted as preemptive or not.

John W. Simon:

–I believe that a product… a requirement on a product to be manufactured differently than the product is required in all of the other States, I believe that that would be a conflict, and I believe that what they’re saying there is that under a State plan where the States are entitled to enact conflicting legislation if the Secretary agrees that it provides at least as much worker safety, they’re saying except with regard to products in interstate commerce.

Those products, the Secretary cannot approve them if they’re going to create a conflict because those products can’t circulate to other States.

The purpose of the OSH Act is to provide safe and healthful working conditions for every working man and woman in the country.

That purpose is not frustrated by the Illinois licensing acts, it’s furthered by the Illinois licensing acts.

The training, competency and testing requirements of the Illinois licensing acts do not conflict with any of the requirements of the OSH hazardous waste operation standard, which will remain in place, enforced by OSHA.

For these reasons, I ask the court to reverse the decision–

William H. Rehnquist:

Thank you, Mr. Simon.

The case is submitted.