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 theFederal OccupaAustin, 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 thepresent statusof article 5182,V.T.C.S., the Protection ofWorkmen on Buildings statute; articles 5173-5180, V.T.C.S., the Health, Safety andMorals Act; articles 5677-5679, V.T.C.S.,~the Cotton Bailing Act; and articles 5892, 5901-5920;V.T.C.S., which regulate coalmining operations.

Article 5182a,V.T.C.S., theOccupational Safety Act, enacted in 1967, superseded the provisions of the Cotton Bailing Act and the coalmining regulatory statutes, with the exception of article 5920,which was reenacted in 1969. Section 18of the Occupational Safety Act provides:

All laws or parts of laws inconflict with the provisons of thisActsare hereby superseded by the provisions of thisAct to the extent of such conflict. Acts 1967, 60th Leg., ch. 201at 441.

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Section 15(b), however, specifically exempts article 5182 and articles 5173-5180. Thus, the question of federal preemption ispresent with regard to article 5182, articles 5173- 5180 and article 5920.

In 1970,Congress enacted theOccupational Safety and Health Act, 29U.S.C. 9s 651-678,which established abroad federal scheme to regulate industrial health and safety conditions. Although the preemptive nature of the statute is evident, section 667provides:

Nothing in this chaljtershall prevent any State agency or court fromasserting jurisdiction under State lawover any occupational safety and health issuewith respect towhich
no standard is in effect under section 655of this title.

Any statewhich "desires to assume responsibility fordevelopment Andyenforcement
. . .of occupational safety and health standards" isrequired 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. 29U.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 ina particular area under 29U.S.C. 5 655. To the extent that such standards have been promulgated, as, for example, with regard to the construction industry and inmost particulars of the Health, Safety andMorals Act, the state statutes are superseded by federal law, absent a statewide plan approved by the Secretary of Labor under 29U.S.C. 5 667(b).

Article 5920,which, aswe have previously noted, was reenacted in 1969 andwas thus saved from the repealer provisions of article 5182a, requires bath facilities for employees of coalmines. The Federal Coal Mines Health and Safety Act, 30U.S.C. 95 801-960, provides, in section 955:

(a) No State law in effect on December 30, 1969
orwhich may become effective thereafter shall be superseded by any provision of this chapter or order issued or anymandatory health or safety standard, except insofar as such State law is in conflict with this chapter orwith any order issued or any mandatory health or safety standard.

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(b) The provisions of any State lawor regulation in effect upon the operative date of this chapter, orwhich may become effective thereafter, which provide formore stringent health and safety standards applicable to coalmines than do theprovisions of this chapter or any order issued or anymandatory health or safety standard shall not thereby be construed or held tobe inconflict with this chapter. The provisions of any State lawor regulation in effect December 30, 1969,
orwhich may become effective thereafter, which provide forhealth and safety standards applicable to coalmines forwhich no provision is contained in this chapter or in any order issued or anymandatory health or safety standard, shall not be held tobe in conflict with this chapter.

Section 877(l)~ofthe federal statute grants to the Secretary of the Interior the authority to require coalmine operators to provide adequate facilities forminers to change clothes and bathe. There does not appear tobe 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 30C.F.R. S 70.1, et se Thus, it isour opinion thata 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 inquirewhether the Department of Labor and Standards has been granted authority topromulgate standards and enforce compliance under theAdministrative 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 thatwas not contained in other statutory provisions.

SUMMARY'

To the extent that federal standards have been promulgated by the Secretary of Labor pursuant to 29U.S.C. 5 655, article 5182 and articles 5173-5180, V.T.C.S., have

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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 rulemaking authority upon the Department of Labor and Standards.

Very truly yours,

Opinion Committee
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