National Solid Wastes Management Ass'n v. Killian

• Decision Date: 29 January 1991
• Docket Number: No. 89-3069,89-3069
• Citation: 918 F.2d 671
• Parties: , 21 Envtl. L. Rep. 20,161, 14 O.S.H. Cas.(BNA) 1921, 1990 O.S.H.D. (CCH) P 29,149 NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION, an Illinois not-for-profit corporation, Plaintiff-Appellant, v. Bernard KILLIAN, Director of the Environmental Protection Agency, an Illinois agency, in his representative capacity and Neil F. Hartigan, Attorney General of the State of Illinois, in his representative capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 671

918 F.2d 671

59 USLW 2337, 21 Envtl. L. Rep. 20,161,

14 O.S.H. Cas.(BNA) 1921,

1990 O.S.H.D. (CCH) P 29,149

NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION, an Illinois

not-for-profit corporation, Plaintiff-Appellant, v. Bernard KILLIAN, Director of the Environmental Protection

Agency, an Illinois agency, in his representative capacity

and Neil F. Hartigan, Attorney General of the State of

Illinois, in his representative capacity, Defendants-Appellees.

No. 89-3069.

United States Court of Appeals, Seventh Circuit.

Argued May 14, 1990.

Decided Nov. 14, 1990.

Rehearing and Rehearing En Banc

Denied Jan. 29, 1991.

William P. Jones, Terence E. Flynn, Gessler, Flynn, Fleischmann, Hughes & Socol, Chicago, Ill., for plaintiff-appellant.

John A. Simon, Asst. Atty. Gen., William D. Seith, Christine S. Bucko, Asst. Atty. Gen., Chicago, Ill., for defendants-appellees.

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

CUDAHY, Circuit Judge.

National Solid Wastes Management Association ("NSWMA") challenges the constitutionality of certain Illinois laws providing for the training, testing and licensing of hazardous waste site workers. According to NSWMA, the Illinois laws are preempted by the Occupational Safety and Health Act, 29 U.S.C. Sec. 655 et seq. (the "OSH Act"), and regulations promulgated by the Occupational Safety and Health Administration ("OSHA"), and the Illinois acts also violate the commerce clause of the Constitution. U.S. Const. art. I, Sec. 8, cl. 3. The district court upheld the Illinois legislation, striking one provision. We affirm in part and vacate in part.

I. RELEVANT STATUTES AND REGULATIONS AND PROCEEDINGS BELOW

In recent years, popular concern about the environment has spurred legislators at all levels of government to enact laws aimed at abating existing pollution and preventing the creation of more pollution. In particular, legislators have focused on the special problems posed by so-called "hazardous" wastes. Congress has passed several measures designed to control and clean up hazardous wastes. E.g., Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") and Superfund Amendments and Reauthorization Act of 1986 ("SARA"), 42 U.S.C. Sec. 9601 et seq.; Resource Conservation and Recovery Act ("RCRA") and Solid Waste Disposal Act ("SWDA"), 42 U.S.C. Sec. 6901 et seq. State and local governments, too, have addressed themselves to this important need.

Environmental measures enacted by state and local governments often address matters not covered by federal legislation or establish environmental standards higher than those provided by Congress. Many (if not most) states have created their own environmental protection agencies. The resulting patchwork of legislation and regulation emerging from government at various levels and reflecting different approaches to control has repeatedly generated issues of federal preemption of state and local laws, see, e.g., International Paper Co. v. Ouellette, 479 U.S. 481, 107 S.Ct. 805, 93 L.Ed.2d 883 (1987), and state and local interference with interstate commerce, see, e.g., Philadelphia v. New Jersey, 437 U.S. 617, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978). Congress has in some specific instances expressed its intent to preempt particular kinds of state and local legislation, but it has not yet declared (or implied) its intention to occupy the entire field of environmental regulation. Consequently, courts have been obliged to address alleged conflicts between national and local legislation on a statute-by-statute (or regulation-by-regulation) basis. This is the background against which we now proceed to examine NSWMA's preemption and commerce clause challenges to the Illinois licensing statutes.

A. The Illinois Licensing Acts

In 1988, Illinois enacted the Hazardous Waste Crane and Hoisting Equipment Operators Licensing Act, Ill.Rev.Stat. ch. 111, p 7701 et seq. (the "Operators Act"), and the Hazardous Waste Laborers Licensing Act, Ill.Rev.Stat. ch. 111, p 7801 et seq. (the "Laborers Act"). The Illinois General Assembly found that these two licensing acts would "promote job safety and ... protect life, limb and property...." Ill.Rev.Stat ch. 111, pp 7702, 7802. The Operators Act covers persons working with cranes and hoists capable of lifting more than two tons, as well as their apprentices. The Laborers Act applies to all other general employees working at a hazardous waste cleanup site. Both acts require a license applicant to provide a certified record of at least 40 hours of training in order to work with hazardous waste under a program conducted within Illinois which has been approved either by the Illinois Environmental Protection Agency ("IEPA") or by the United States Environmental Protection Agency ("EPA"). Further, the applicant must be at least 18 years old, must not have violated any provisions of the relevant act and must pass a written examination "prescribed by" IEPA. Id. at pp 7705, 7706, 7805. Applicants for the Operator's License (but not apprentices) must clear another hurdle: they must submit "a certified record showing operation of equipment used in hazardous waste handling for a minimum of 4,000 hours...." Id. at p 7705(d). Each year, all licensees must complete a refresher course of at least 8 hours of instruction in order to obtain renewal of their state license. Id. at pp 7707(b), 7806(b). The acts do not require licensing of persons working with equipment incapable of lifting more than 2 tons, persons engaged in agricultural or mining activities, persons employed by railroads or persons employed by the owner of a manufacturing facility undergoing cleanup pursuant to federal or state environmental laws so long as such employees have completed the training required by OSHA's Hazardous Waste Operations and Emergency Response regulations, 29 C.F.R. Sec. 1910.120 (1989). Id. at pp 7704, 7804.

The acts also authorize the imposition of penalties for specified conduct. An employee subject to the acts who operates without a license, or an employer who knowingly permits such an individual to work without a license, may be fined from $1000 to $5000, depending on the existence of any previous such offenses. Id. at pp 7715, 7716, 7814. In addition, an individual's license may be suspended, revoked or denied renewal and the individual fined up to $5000 for obtaining or attempting to obtain a license by fraud; for committing gross negligence or demonstrating incompetence or misconduct in handling hazardous waste; for being convicted of any felony or being subject to a court order of involuntary commitment in a mental health facility; for failing to comply with any provision of the relevant Illinois act or for refusing to provide IEPA with information requested pursuant to a complaint or investigation; or for having one's operator's, apprentice's or laborer's license revoked in any other state. Id. at pp 7711, 7810. Under the acts, it is a public nuisance to perform work at a hazardous waste site or to operate or assist in the operation of a crane or hoist at a hazardous waste site without a license, and the Illinois Attorney General, the director of IEPA, any state's attorney or any resident citizen may bring a court action to enjoin an individual from working at a hazardous waste site without a license. Id. at pp 7714, 7813.

Finally, each act creates a five-member licensing board and provides for the appointment of an inspector to investigate accidents, monitor hazardous waste sites for compliance with the relevant act and provide advice to the relevant licensing board. The boards are to include two representatives of the relevant labor union or unions, two hazardous waste industry representatives and one member of the general public. Board members serve four-year terms and receive no salary for their service. Three members constitute a quorum, and the boards may submit recommendations to the director of IEPA concerning any aspect of the relevant licensing scheme. Id. at pp 7709, 7710, 7808, 7809.

B. The OSHA Regulations

In SARA, Congress authorized the Secretary of Labor to "promulgate standards for the health and safety protection of employees engaged in hazardous waste operations." SARA, Pub.L. No. 99-499, Title I, Sec. 126(a), 100 Stat. 2690 (1986) (as amended Pub.L. No. 100-202, Sec. 101(f), Title II, 101 Stat. 1329-198 (1987)). Section 126(a) of SARA directed the Secretary of Labor to promulgate the standards pursuant to section 6 of the OSH Act, 29 U.S.C. Sec. 655. Specifically, SARA required the Secretary to establish standards for site analysis, training, medical surveillance, protective equipment, engineering controls, maximum exposure limits, informational and new technology programs, handling of hazardous wastes, decontamination procedures and emergency responses. OSHA's Hazardous Waste Operations and Emergency Response regulations, 29 C.F.R. Sec. 1910.120 (1989) (the "final rule"), are the product of this command. In addition to the subjects mandated by SARA, OSHA has also promulgated regulations pertaining to minimum illumination of worksites, monitoring of employee exposure levels and sanitation at temporary worksites.

NSWMA asserts that OSHA's regulations are "comprehensive," and draws our attention particularly to OSHA's worker training requirements contained in subsection (e) of the final rule. Subsection (e) requires training of all employees and supervisors working in the field (that is, with, or in close proximity to, the hazardous wastes). Initially, general site workers engaged in an activity that may potentially expose them to hazardous wastes must receive at least 40 hours of off-site training and three days of actual field experience under the supervision of a trained and experienced supervisor. 29 C.F.R. Sec. 1910.120(e)(3)(i). Workers who are on the site only occasionally or who are working in areas that have been determined to be under the...