Untitled Texas Attorney General Opinion ( 1972 )

. .
THE LI~RNEY GEINEEAL
OIF-XAS
Honorable Larry Teaver Opinion No. M-i 132
Chairman, State Board of Insurance
1110 San Jacinto Re: Whether the proposed regula-
Austin, Texas 78701 tions of the State Board of
Insurance for the safe move-
ment and operation of mobile
service units and dispensing
of flammable liquids are
invalid because in conflict
with the federal rules and
regulations which implement
the federal Occupational
Safety and Health Act and
Dear Mr. Teaver: related questions?
You have requested an opinion of this office on the above captioned
matter and we quote from your letter, (in part):
“The proposed regulations as suggested by the
advisory committee [to the State Board of Insurance],
which we attach hereto as Exhibit ‘A’, contain pro-
visions that apparently would permit dispensing of
flammable liquids from a tank vehicle to a motor
vehicle on premises open to the public. (See
Exhibit ‘A’, Chapter V, Article 5013, Parking,
pages 3-4)
“The State Board of Insurance has heretofore
promulgated Rules and Regulations for the Safe
Storage, Handling and Use of Flammable Liquids
at Retail Service Stations, which Rules and Regula-
tions are attached as Exhibit ‘B’.
“It has come to the attention of the Board that
the Federal Congress has passed an Occupational
Safety and Health Act of 1970, pertinent parts of
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Honorable Larry Teaver, page 2 (M-1132)
which became effective February 15, 1972. Section
1910.106, Part II of Title 29, Chapter XVII, Volume
36, Federal Register, of the said OSHA is attached
hereto as Exhibit ‘C’. It contains provisions to
which the Board directs your attention, and we ,pose
the following questions to your office:
“1. Would the proposed regulations in
Exhibit ‘A’ be in conflict with the cited
provisions of Exhibit ‘C’?
“2. Are the existing regulations of Exhibit
‘B’ in conflict with the cited provisions of
Exhibit ‘C’?
“3. If a conflict is inherent in the state
regulations (either exisiting or proposed)
and the standards promulgated by the
Secretary of Labor in part 1910 (OSHA),
will the federal regulations pre-empt the
state regulations?”
Question No. 3 asks whether the federal regulations found in
Exhibit C will pre-empt either the proposed or existing regulations in
the field of occupational safety and health. Article llllc-1, Vernon’s
Texas Penal Code, as amended by Acts 62nd Legislature, R. S. 1971,
Chapter 226, p0 1074, directed the State Board of Insurance to
“formulate, adopt and promulgate rules and regulations for the safe
storage, handling and use of flammable liquids at retail service stations”
and to “formulate, adopt and promulgate rules and regulations for the
safe movement and operation of mobi,le service units. ”
The federal statute, the William-Steiger Occupational Safety and
Health Act of 1970, 29 USC g 651 et seq (The Act), became effective
on April 28, 1971. The primary purpose of The Act is to reduce on-
the-,job injuries and to provide employees with safe working conditions.
The first section declares that the Congressional policy is:
1,. D ~to provide for the general welfare, to
assure so far as possible every working man and
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/ .
Honorable Larry Teaver, page 3 (M-1132)
woman in this nation safe and healthful working
conditions and to preserve our human recourse.
“(3) D ~ . by authorizing the Secretary of Labor
to set mandatory occupational safety and health
standards applicable to business affecting inter-
state commerce and . . .
“(11) . . . by encouraging the States to assume
the fullest responsibility for the administration
and enforcement of their occupational safety and
he alth laws by providing grants to the States to
assist-identifying their needs and responsibilities
in the area of occupational safety, to develop plans
in accordance with the provisions of this Chapter,
to improve the administration and enforcement of
State occupational safety and health laws. ” 29
USC g 651 (Emphasis added.)
The Act provides a method whereby the states may continue to
enforce their own safety standards and draft others. 29 USC 8 667.
Section 667 (b) entitled “Submission of State Plan for Development and
Enforcement of State Standards to Preempt Applicable Federal Standards”
provides:
“any state which, at any time, desires to assume
full responsibility for development and enforcement
of their occupational safety and health standards
relating to any occupational safety or health issue
with respect to which a federal standard has been
promulgated under 8 655 of this Title shall submit
a state plan for the development of such standards
and their enforcement. ” (Emphasis added. )
In connection with state jurisdiction and enforcement of standards,
The Act also provides that the Secretary of Labor may make federal
grants to states to assist them in identifying and studying safety needs
and to assist them in developing their state plans under § 667 (b).
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Honorable Larry Teaver, page 4 (M-1132)
Initially, it is to be presumed that a duly enacted statute of the
State of Texas is valid against objection on constitutional grounds.
12 Tex. Jur. 2d, Const. Law, Sec. 42, pp. 385-386.
The basic requirements of the doctrine of preemption are clear.
Mr. Justice Douglas, in discussing whether a Federal Act preempted
a previously unregulated area (as here) observed:
“Congress legislated here in a field which the
states have traditionally occupied. See Munn v.
Illinois, 94 U.S. 113, 24 L. Ed. 77; Davis Ware-
house Company v. Bowles, 321 U.S. 144, 148-
149, 64 S. Ct. 474, 477, 478, 88 L. Ed. 635. So
we start with the assumption that the historic
police powers of the states were not to be super-
seded by the Federal Act unless that was the clear
and manifest purpose of Congress. Napier v.
Atlantic Coast Line Railway Company, 272 U.S.
605, 611, 47 S. Ct. 207, 209, 71 L. Ed. 432, Allen-
Bradley Local v. Wisconsin Employment Relations
Board, 315 U.S. 740, 749, 62 S. Ct. 820, 825,
86 L. Ed. 1154.” Rice v. Santa Fe Elevator
Company, 331 U.S. 218, 230, 67 S. Ct. 1146, 1152,
91 L. Ed. 1447 (1947).
The Supreme Court of the United States has emphasized that
VI . oenjoin(s) seeking out conflicts
. . . this Court’s decisions.
between state and federal regulation where none clearly exists. ”
Huron Portland Cement Co. ;, City of Detroit, 362 U.S. 440, 446
(1960). A clear showing of conflict is required. Schwartz v. State of
Texas. 344 U.S. 199. 203 (1952).
In Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S.
132, 142 (1963) the court held:
“The test of whether both federal and state
regulations may operate, or the state regulation
must give wav. is whether both regulations can
be enforced without impairing the Federal super-
intendence of the field, not whether they are aimed
at similar or different objectives.
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Honorable Larry Teaver, page 5 (M-1 132)
“The principle to be derived from our decisions
is that federal regulation of a field of commerce should
not be deemed preemptive of state regulatory power
in the absence of persuasive reasons -- either that
the nature of the regulated subject matter permits
no other conclusion, or that the Congress has un-
mistakably so ordained. See, e. g., Huron Portland
Cement Co. v. Detroit, supra. ” (Emphasis added.)
Further in Colorado Anti-Discrim. Comm. v. Continental Air
Lines, 372 U.S. 714, 721 (1963), the Supreme Court, in ruling on the
validity of a state statute under the Supremacy Doctrine, held:
11
.that the mere ‘fact of identity does not
. .
mean the automatic invalidity of State measures.’ ”
(Emphasis added. )
The Occupational Safety and Health Administration (OSHA) recently
issued a Policy Statement, pertinent provisions of which reveal the intent
of both Congress and the OSHA:
“The mandate of most State and local fire
marshals is quite broad - to promote fire pre-
vention in order to protect all persons in virtually
all types of establishments and facilities, including
places of employment. All States and territories
have some fire regulation activity; forty-five States
have State fire marshals with statewide jurisdiction
usually operating as an independent department, or
as part of the State insurance department, or as a
part of the State public safety agency. Counterparts
of the State fire marshals carry out this responsibility
in municipalities or at the county level. It is estimated
that approximately 15,000 persons are involved in fire
marshal activities at all levels throughout the country.
“It is the belief of the Occupational Safety and
Health Administration that it was not Congress’ intent
in passing the Act to preempt these extensive activities
with respect to places of employment covered by the
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Honorable Larry Teaver, page 6 (M-1132)
Act. While there is an overlap of jurisdiction in
workplaces, the Occupational Safety and Health Ad-
ministration feels that the much broader goals of
fire marshals’ activities preclude their being preempted,
despite the promulgation of Section 6 standards sub-
stantially the same as those enforced by fire marshals,
Thus, State fire marshal activities will not be preempted
regardless of whether or not a State 18(b) plan is in
effect. ” (Emphasis supplied. )
This office is of the opinion that the intent of The Act is to
encourage, the state “to assume the fullest responsibility for the
administration and enforcement of their occupational safety and health
laws, ‘I and that since the, Congress did not intend to preempt the field
of occupational health and safety, the rules and regulations (either
adopted or proposed) regarding the safe movement and operation of
mobile service units and dispensing of flammable liquids and the “Rules
and Regulations for the Safe Storage, Handling and Use of Flammable
Liquids at Retail Service Stations” are not preempted by the regulations
promulgated by the Secretary of Labor pursuant to the Occupational
Safety and Health Act of 1970.
Since our answer to Question No. 3 is in the negative, Questions
No. 1 and 2 are not answered.
SUMMARY
The regulations promulgated by the Secretary of
Labor pursuant to the Occupational Safety and Health
Act of 1970, 84 Stat. 1593, 1600; 29 U.S.C. 655, 657,
do not preempt the proposed regulations concerning
“Mobile Service Units” or the existing regulations
regarding the storage, handling and use of flammable
liquids at retail service stations.
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Honorable Larry Teaver, page 7 (~-1132)
Prepared by James Hackney
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen. Co-Chairman
James Quick
Lynn Taylor
Van Thompson, Jr.
Sally Phillips
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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