. . 

THE LI~RNEY GEINEEAL 

OIF-XAS 

Honorable Larry Teaver 

Chairman, State Board of Insurance 

1110 San Jacinto 

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 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 provisions 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 Regulations 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 onthe-,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 interstate 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 Stat es 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 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 that the historic 

police powers of the states were not to be superseded 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, 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 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 superintendence 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 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, 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 prevention 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 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 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. 
4 . 

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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