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enacted in 1967, superseded the provisions of the Cotton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

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