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### THE LI~RNEY GEINEEAL OIF-XAS

Honorable Larry Teaver Chairman, State Board of Insurance 1110 SanJacinto Austin, Texas 78701 Opinion No. M-i 132 Re: Whether the proposed regulations of the State Board of Insurance for the safe movement and operation of mobile service units anddispensing of flammable liquids are invalid because in conflict with the federal rules and regulations which implement the federal Occupational Safety andHealth Act and Dear Mr. Teaver: related questions? You have requested an opinion of this office on the above captioned matter andwe 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 provisions that apparently would permit dispensing of flammable liquids from atank 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 andUse of Flammable Liquids at Retail Service Stations, which Rules and Regulations are attached as Exhibit ‘B’
.

“It has come to the attention of the Board that the Federal Congress has passed an Occupational Safety andHealth Act of 1970, pertinent parts of

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which became effective February 15, 1972. Section 1910.106, Part IIof Title 29, Chapter XVII, Volume 36, Federal Register, ofthe said OSHA is attached hereto as Exhibit ‘C’
. Itcontains provisions to which the Board directs your attention, andwe ,pose the following questions toyour 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. Ifa conflict is inherent inthe 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 Cwill pre-empt either the proposed or existing regulations in the field of occupational safety andhealth. 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 andpromulgate rules andregulations for the safe storage, handling and use of flammable liquids at retail service stations” andto “formulate, adopt andpromulgate rules andregulations for the safe movement and operation of mobi,le service units. ” The federal statute, the William-Steiger Occupational Safety and Health Act of 1970, 29USC g651 et seq (The Act), became effective on April 28, 1971. The primary purpose of The Act is to reduce onthe-,job injuries andto provide employees with safe working conditions. The first section declares thatthe 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 andhealthful working conditions and topreserve our human recourse.

“(3) D~.by authorizing the Secretary of Labor to set mandatory occupational safety andhealth standards applicable to business affecting interstate commerce and

. . .

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. . .by encouraging the States to assume the fullest responsibility for the administration andenforcement of their occupational safety and he es to alth laws by providing grants to the Stat assist-identifying their needs andresponsibilities in the area of occupational safety, to develop plans in accordance with the provisions of this Chapter, to improve the administration andenforcement of State occupational safety andhealth laws. ” 29 USC g651 (Emphasis added.) The Act provides a method whereby the states may continue to enforce their own safety standards anddraft others. 29USC 8667. 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 andenforcement of their occupational safety andhealth standards relating to any occupational safety or health issue with respect towhich 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. ) Inconnection with state jurisdiction andenforcement of standards, The Act also provides thatthe 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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Initially, it is to be presumed that aduly enacted statute of the State ofTexas is valid against objection on constitutional grounds. 12Tex. Jur.2d, Const. Law, Sec. 42, pp. 385-386. The basic requirements of the doctrine of preemption are clear. Mr. Justice Douglas, indiscussing 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 Munnv. Illinois, 94 U.S. 113, 24 L. Ed. 77; Davis Warehouse 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 thatthe historic police powers of the states were not to be superseded by the Federal Act unless thatwas the clear and manifest purpose of Congress. Napier v. Atlantic Coast Line Railway Company, 272U.S. 605, 611, 47 S.Ct. 207, 209, 71 L. Ed. 432, AllenBradley 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

. . .this Court’s decisions.

. o enjoin(s) seeking out conflicts between state andfederal 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). InFlorida Lime and Avocado Growers, Inc. v. Paul, 373U. S. 132, 142 (1963) the court held:

“The test ofwhether 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 superintendence of the field, notwhether they are aimed at similar or different objectives.
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“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 thatthe Congress has unmistakably so ordained. See, e.g., Huron Portland Cement Co. v. Detroit, supra. ” (Emphasis added.) Further in Colorado Anti-Discrim. Comm. v. Continental Air Lines, 372U.S. 714, 721 (1963), the Supreme Court, in ruling on the validity of a state statute under the Supremacy Doctrine, held:

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. . . that the mere ‘fact of identity does not mean the automatic invalidity of State measures.’ ” (Emphasis added. ) The Occupational Safety andHealth Administration (OSHA) recently issued aPolicy Statement, pertinent provisions ofwhich reveal the intent of both Congress and the OSHA:

“The mandate of most State andlocal fire marshals is quite broad - to promote fire prevention in order to protect all persons invirtually all types of establishments andfacilities, including places of employment. All States andterritories 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 Statepublic safety agency. Counterparts of the State fire marshals carry out this responsibility in municipalities or at the county level. Itis 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 itwas 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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Act. While there is an overlap ofjurisdiction in workplaces, the Occupational Safety and Health Administration feels that the much broader goals of fire marshals’ activities preclude their being preempted, despite the promulgation of Section 6 standards substantially the same as those enforced by fire marshals, Thus, State fire marshal activities will not be preempted regardless ofwhether 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 andhealth laws, ‘Iand that since the,Congress did not intend to preempt the field of occupational health and safety, the rules andregulations (either adopted or proposed) regarding the safe movement andoperation of mobile service units anddispensing of flammable liquids andthe “Rules and Regulations for the Safe Storage, Handling andUse of Flammable Liquids at Retail Service Stations” are not preempted by the regulations promulgated by the Secretary of Labor pursuant to the Occupational Safety andHealth Act of 1970. Since our answer toQuestion No. 3 is in the negative, Questions No. 1and 2 are not answered. SUMMARY

The regulations promulgated by the Secretary of Labor pursuant to the Occupational Safety andHealth Act of 1970, 84 Stat. 1593, 1600; 29U.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.4

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Honorable Larry Teaver, page 7 (~-1132)
Prepared byJames Hackney Assistant Attorney General APPROVED: OPINIONCOMMITTEE 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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