.    .




             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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