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Renton Concrete Recyclers v. State

April 28, 1997


Appeal from Superior Court of King County. Docket No: 94-2-12509-5. Date filed: 03/16/95. Judge signing: Hon. Leroy McCullough.

Authored by H. Joseph Coleman. Concurring: Walter E. Webster, Mary K. Becker.

The opinion of the court was delivered by: Coleman

COLEMAN, J. -- Renton Concrete Recyclers, a material processing and recycling plant, was cited by the Washington State Department of Labor and Industries for violations of the Washington Industrial Safety and Health Act (WISHA). RCR argued that the Department had no authority to issue such citations because as a mining facility, RCR was subject to the mine safety and health act's exclusive federal jurisdiction. We hold that regardless of the applicability of the mine act, it does not preempt WISHA because the mine act permits state mining regulation. We thus affirm.

In 1990 and again in 1992, the Department conducted safety inspections of RCR's workplace under the auspices of WISHA. Following both inspections, the Department issued citations asserting WISHA violations. RCR appealed both citations.

RCR argued that the Department lacked jurisdiction because the mine act had exclusive federal jurisdiction. The Industrial Appeals Judge made the following unchallenged findings of fact: RCR purchased the business in 1988 and constructed a manufacturing plant that has two primary functions: (1) Recycling concrete and asphalt and (2) mining native rock from the site. Both plant functions--recycling and mining--involve the same activity: Processing rock into smaller pieces to meet customer specifications. Thus, the only distinction between the functions is that in the recycling operation, RCR receives the materials from offsite areas whereas in the mining operation, RCR uses rock from the site.

RCR generates more revenue from the recycling operation, and its employees are primarily exposed to this operation. In fact, there are large periods of time during which no native rock is processed. For instance, at the time of the 1990 and 1992 inspections, no native rock was being processed and no stockpiles of recently processed native rock were observed.

The Industrial Appeals Judge determined that RCR had failed to demonstrate that an actual conflict existed between the mine act and WISHA. She further noted that the mine act explicitly provided that state laws exceeding or not covered by the act could be enacted. Thus, she ruled that the mine act did not preempt WISHA. The Board of Industrial Insurance Appeals denied RCR's petition for review. RCR appealed to the superior court, which affirmed the ruling.

The question here is whether state regulation of work place safety at RCR is preempted by federal law. RCR argues that as a mining facility, it is under the mine act's exclusive jurisdiction. RCR reasons that because the federal Occupational Safety and Health Act (OSHA) could not regulate mining, then the Department, as a state alternative to OSHA, also cannot. Because this case involves the application of undisputed facts to the law, our review is de novo. See, e.g., Franklin County Sheriff's Office v. Sellers, 97 Wash. 2d 317, 330, 646 P.2d 113 (1982), cert. denied, 459 U.S. 1106, 74 L. Ed. 2d 954, 103 S. Ct. 730 (1983).

Under the United States Constitution's supremacy clause, federal law preempts state law (1) if Congress intended to occupy a given field or (2) if a state law actually conflicts with a federal law. U.S. Const. art. 6; Inlandboatmen's Union v. Department of Transp., 119 Wash. 2d 697, 701, 836 P.2d 823 (1992). In determining whether Congress intended to occupy a field absent explicit preemptive language, we consider whether (1) the scheme of federal regulation is so pervasive such that Congress left no room for state supplementation; (2) the federal act touches a field in which the federal system will be assumed to preclude enforcement of state law; and (3) Congress's goals reveal a purpose to preclude state authority. The presumption is against preemption, and the party claiming preemption bears the burden of proof. Inlandboatmen's, 119 Wash. 2d at 701-02.

In determining whether federal law preempts WISHA, we consider the relationship among the three acts--the mine act, OSHA, and WISHA. The mine act was established to protect the health and safety of the nations' miners. To achieve this goal, the act requires mine operators to comply with certain standards and to provide assistance to the States in the development and enforcement of effective state mine health and safety programs. 30 U.S.C. sec. 801(g). In furtherance of this goal, the mine act states that any State law or regulation that provides more stringent health and safety standards applicable to coal or other mines or that provides health and safety standards applicable to coal or other mines for which there is no mine act provision is held not to conflict with the act. 30 U.S.C. sec. 955. Thus, the mine act's stated purpose is to further state programs, not to preempt them.

OSHA, created to assure safe and healthful working conditions for all businesses affecting interstate commerce, defers to the mine act's regulation of mining. 29 U.S.C. sec. 651(b)(3); 29 U.S.C. sec. 653(b)(1). Unlike the mine act, state programs relating to OSHA issues must be submitted to the Secretary of Labor for approval. 29 U.S.C. sec. 667(b). WISHA is such a state program, enacted to "create, maintain, continue, and enhance the industrial safety and health program of the state, which program shall equal or exceed the standard prescribed by the Occupational Safety and Health Act of 1970[.]" RCW 49.17.010; see Department of Labor & Indus. v. Dirt & Aggregate, Inc., 120 Wash. 2d 49, 50-51, 837 P.2d 1018 (1992). WISHA, like OSHA, was intended to apply "with respect to employment performed in any work place within the state."

Compare RCW 49.17.030 with 29 U.S.C. sec. 651(b)(3). But in contrast to OSHA, WISHA does not contain language deferring authority to other agencies, state or federal.

RCR claims that because WISHA's authority derives from OSHA and the mine act preempts OSHA at mining sites, the mine act must preempt WISHA. RCR reasons that WISHA cannot obtain any greater authority than OSHA has. *fn1

The Washington State Supreme Court rejected a similar argument in Inlandboatmen's, where the court held that the State could regulate ferry safety under WISHA even if OSHA could not. Inlandboatmen's, 119 Wash. 2d at 704. The court reasoned that "the power of one federal law to exclude the application of another federal law does not ...

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