Untitled Texas Attorney General Opinion ( 1976 )


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  • The Honorable Jackie St. Clair     Opinion No. H-911
    Commissioner
    Texas Department of Labor &        Re: Whether Texas Health
    .Standards                    and Safety Laws conflict
    P. 0. Box 12157, Capitol Station   with the Federal Occupa-
    Austin, Texas 78711                tional Safety and Health
    Act of 1970 or the Federal
    Coal Mine Health and Safety
    Act.
    Dear Commissioner St. Clair:
    You have requested our opinion regarding possible
    federal preemption of a number of state health and safety
    laws. Specifically, you inquire about the present statusof
    article 5182, V.T.C.S., the Protection of Workmen on Buildings
    statute; articles 5173-5180, V.T.C.S., the Health, Safety
    and Morals Act; articles 5677-5679, V.T.C.S.,~the Cotton
    Bailing Act; and articles 5892, 5901-5920;V.T.C.S.,  which
    regulate coal mining operations.
    Article 5182a, V.T.C.S., the Occupational Safety Act,
    enacted in 1967, superseded the provisions of the Cotton
    Bailing Act and the coal mining regulatory statutes, with
    the exception of article 5920, which was reenacted in 1969.
    Section 18 of the Occupational Safety Act provides:
    All laws or parts of laws in conflict with
    the provisons of this Acts are hereby super-
    seded by the provisions of this Act to the
    extent of such conflict. Acts 1967, 60th
    Leg., ch. 201 at 441.
    p. 3822
    The Honorable Jackie St. Clair - page 2   (A-911)
    Section 15(b), however, specifically exempts article 5182
    and articles 5173-5180. Thus, the question of federal pre-
    emption is present with regard to article 5182, articles 5173-
    5180 and article 5920.
    In 1970, Congress enacted the Occupational Safety and
    Health Act, 29 U.S.C. 9s 651-678, which established a broad
    federal scheme to regulate industrial health and safety
    conditions. Although the preemptive nature of the statute
    is evident, section 667 provides:
    Nothing in this chaljter shall prevent any
    State agency or court from asserting juris-
    diction under State law over any occupational
    safety and health issue with respect to which
    no standard is in effect under section 655 of
    this title.
    Any state which "desires to assume responsibility for develop-
    ment Andy enforcement . . . of occupational safety and health
    standards" is required to submit a state plan to'the Secretary
    of Labor, who is empowered to exercise both initial approval
    authority and continuing supervision over the state regulations.
    29 U.S.C. § 667(b)-(f). Thus, in determining whether article
    5182 and articles 5173-5180 are still in effect, it is
    necessary to ascertain whether standards have been promulgated
    in a particular area under 29 U.S.C. 5 655. To the extent
    that such standards have been promulgated, as, for example,
    with regard to the construction industry and in most particulars
    of the Health, Safety and Morals Act, the state statutes are
    superseded by federal law, absent a statewide plan approved by
    the Secretary of Labor under 29 U.S.C. 5 667(b).
    Article 5920, which, as we have previously noted, was
    reenacted in 1969 and was thus saved from the repealer pro-
    visions of article 5182a, requires bath facilities for
    employees of coal mines. The Federal Coal Mines Health and
    Safety Act, 30 U.S.C. 95 801-960, provides, in section 955:
    (a) No State law in effect on December 30, 1969
    or which may become effective thereafter
    shall be superseded by any provision of
    this chapter or order issued or any mandatory
    health or safety standard, except insofar as
    such State law is in conflict with this
    chapter or with any order issued or any
    mandatory health or safety standard.
    p. 3823
    The Honorable Jackie St., Clair - page 3 (R-911)
    (b) The provisions of any State law or
    regulation in effect upon the operative date
    of this chapter, or which may become effective
    thereafter, which provide for more stringent
    health and safety standards applicable to
    coal mines than do the provisions of this
    chapter or any order issued or any mandatory
    health or safety standard shall not thereby
    be construed or held to be in conflict with
    this chapter. The provisions of any State
    law or regulation in effect December 30, 1969,
    or which may become effective thereafter,
    which provide for health and safety standards
    applicable to coal mines for which no provision
    is contained in this chapter or in any order
    issued or any mandatory health or safety standard,
    shall not be held to be in conflict with this
    chapter.
    Section 877(l) ~of the federal statute grants to the Secretary
    of the Interior the authority to require coal mine operators
    to provide adequate facilities for miners to change clothes
    and bathe. There does not appear to be any conflict between
    this provision and article 5920, and the Secretary of the
    Interior has not promulgated any regulations thereunder which
    would create such conflict. .See 30 C.F.R. S 70.1, et se
    Thus, it is our opinion that a    provisions of artize -&O
    remain in effect and, as required therein, are to be enforced
    by the Commissioner of the Department of Labor and Standards.
    You also inquire whether the Department of Labor and
    Standards has been granted authority to promulgate standards
    and enforce compliance under the Administrative Erocedure
    and Texas Register Act, article 6252-13a, V.T.C.S. We do not
    believe article 6252-13a confers on an administrative agency
    any substantive rule-making authority that was not contained
    in other statutory provisions.
    SUMMARY'
    To the extent that federal standards
    have been promulgated by the Secretary of
    Labor pursuant to 29 U.S.C. 5 655, article
    5182 and articles 5173-5180, V.T.C.S., have
    p. 3824
    The Honorable Jackie St.~ Clair - page 4 (H-911)
    been superseded. Article 5920, V.T.C.S., is
    still in effect. The Administrative Procedure
    and Texas Register Act, article 6252-13a,
    V.T.C.S., has conferred no additional rule-
    making authority upon the Department of Labor
    and Standards.
    Very truly yours,
    Opinion Committee
    jwb
    p. 3825
    

Document Info

Docket Number: H-911

Judges: John Hill

Filed Date: 7/2/1976

Precedential Status: Precedential

Modified Date: 2/18/2017