Request By:
Honorable Frederick G. Huggins
Deputy General Counsel
Department of Labor
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Martin Glazer, Assistant Attorney General
You seek an opinion concerning the following subject:
You state that in 1974 the Commissioner of Labor signed an agreement with the federal authorities under Section 18(e) of the Kentucky Occupational Safety and Health Act of 1970, which agreement provided for Kentucky's operation of its occupational safety and health program. You have forwarded a copy of the original agreement which Kentucky entered into with the federal authorities. However, the Acting Regional Administrator for the U.S. Department of Labor's Occupational Safety and Health Administration, Mr. J. Russell Dugger, sent the Commissioner of Labor a proposed amendment to the operational status agreement. Under your interpretation of that addendum, the operational status agreement would give federal OSHA personnel the right to exercise without notice to the employer full, concurrent federal enforcement authority over any business where the state program has failed to obtain entry or a search warrant to enforce the right of entry.
In short, you want to know whether the Kentucky Department of Labor should sign the enclosed addendum to the operational status agreement.
As background, it should be noted that the Occupational Safety and Health Act was enacted by the Congress in 1970 requiring the Department of Labor to administer health and safety among employers and employees. In cases where a state had enacted its own program which meshed with the federal program and where the parties, the federal and state, could enter into an agreement, then the state program was permitted to operate in lieu of the federal program, but federal personnel would continue to monitor state programs and would continue to investigate claims involving certain types of employers under the direct supervision of federal authorities. Accordingly, the Kentucky General Assembly enacted its own program and in 1974 the Commissioner of Labor (of Kentucky) entered into an agreement with the Assistant Regional Director for Occupational Safety and Health. In accordance with Section 3 of the agreement federal enforcement authority under Section 18(e) of the Act would not be initiated with regard to federal Occupational Safety and Health standards where state standards are in effect and operational except with certain exceptions. The federal government retained the right to exercise the administration of complaints to OSHA about violations of employment discrimination. They also retained enforcement of federal temporary emergency standards until such time as Kentucky should have adopted equivalent standards, they also retained enforcement of federal maritime and longshoring standards which standards were specifically excluded from coverage under the approved Kentucky state plan, and they retained the right to conduct investigations and inspections for the purpose of monitoring the obligations of the state's plan.
Under the proposed addendum to the operational status agreement under (1) federal OSHA would retain the right to exercise, without notice to the employer, full concurrent federal enforcement authority over any establishment where such establishment has refused entry to the state and the state is unable to enforce the right of entry. Under (2), federal OSHA retains the right to exercise full federal enforcement authority of any standard which federal OSHA has promulgated prior to the state's adoption of a comparable standard. Under of a comparable standard. Junder (3) when the Assistant Secretary Labor) indicates that a new health standard is so unique or complex that it requires uniform enforcement strategy, the Assistant Secretary will consult with the state and a mutually agreeable strategy will be developed for the conduct of the initial inspections under the new standard. Finally, under (4), federal OSHA would retain the right to exercise full federal concurrent enforcement authority whenever the Assistant Secretary determines that the state is not providing enforcement and a resumption of federal enforcement is necessary to protect the safety and health of workers in the state.
We agree with you that such an addendum is unnecessary to the original plan and in effect would thwart the intent of Congress in providing for a dual system of occupational safety and health enforcement. As we indicated earlier, it was the apparent intent of Congress that states would be permitted to conduct and administer their own plans unless it were found that the state was not carrying out its obligations. In such latter event, the state would lose the right to conduct and administer its own plan. The effect of the addendum would not be to provide an "either/or", that is a federal or state enforcement, but would provide for a "me-too" type of enforcement in which both the federal and the state would be conducting concurrent enforcement over the same types of employers and ostensibly at the same time. This was not the intent of Congress when it enacted OSHA.
Therefore, it is the opinion of this office that you should refuse to enter into such an addendum as unnecessary and as contrary to the intent of the original act and the agreement between Kentucky and the federal government. If the federal government is unhappy with the methods by which Kentucky is enforcing the plan, then it should take procedures set out in the federal statute and in the agreement for revoking Kentucky's participation in self-enforcement.