61 Op. Att’y Gen. 353 (1972)


PHILIP E. LERMAN, Chairman, Department of Industry, Labor and Human Relations.

Attorney General of Wisconsin — Opinion.
August 14, 1972.

Occupational Safety LawsIndustry, Labor And Human Relations Department — Under sec. 16.54, Stats., Wisconsin may enter into an agreement with the Federal Government under sec. 18 (b), Occupational Safety and Health Act of 1970, 84 Stat. 1950, for the development, administration and enforcement, at state level, of occupational safety and health laws meeting federal standards.

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ROBERT W. WARREN, Attorney General

PHILIP E. LERMAN, Chairman, Department of Industry, Labor and Human Relations

You have asked me for my opinion whether the state of Wisconsin, by its Department of Industry, Labor and Human Relations, may enter into an agreement with the Federal Government, under sec. 18 (b) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590, 29 U.S.C. sec. 651) (OSHA), to assume responsibility for the development and enforcement of occupational safety and health standards comparable to the federal standards.

You advise that Governor Lucey has designated your department to develop a state plan, secure its approval and administer it. Your department is developing a plan, which includes proposals for necessary legislation and rule changes, to be submitted to the United States Secretary of Labor for approval. Under this Act (OSHA), unless such state plan is submitted and approved, state activity in this area will be preempted by the Federal Government. This opinion request is one of the conditions of developmental plan approval.

It is my opinion that the state of Wisconsin may enter into such an agreement and that your department may develop, administer and enforce the occupational safety and health standards conforming to acceptable federal standards.

The Governor has authority to sign such an agreement on behalf of the state of Wisconsin.

Article V, sec. 4, Wis. Const., provides that the Governor:

“* * * shall transact all necessary business with the officers of the government, civil and military. He shall expedite all such measures as may be resolved upon by the legislature; and shall take care that the laws by faithfully executed.”

By the cited paragraphs of sec. 16.54, Stats., the Governor is authorized: (1) to accept funds made available by the United States government for “education, the promotion of health” and other purposes; (2) to designate the state department to administer such funds for the purpose specified by the Act of

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Congress or the department of the United States making the funds available; (4) the state agency in administering such funds shall comply with the Act, rules and regulations prescribed by the Federal Government or department making the funds available; (5) whenever the federal agency as a condition to federal aid requires the administering state agency to submit for approval “a budget, plan, application or proposal,” the same shall first be approved by the Governor and reported to the Joint Committee on Finance while the legislature is in session or to the Board on Government Operations when it is not, and (6) in accepting federal funds and benefits the Governor:

“* * * may take or cause to be taken all necessary acts including (without limitation because of enumeration) the making of leases or other contracts with the federal government; the preparation, adoption and execution of plans, methods, and agreements, and the designation of state, municipal or other agencies to perform specific duties.”

The existing Wisconsin safety and health standards are already substantially in accord with federal standards. Your plan provides for proposed legislation including agricultural workers and makes the penalties more severe. OSHA provides that any nonconforming state plan may be approved if assurance is given that the state will take necessary steps to bring its program into substantial conformity with federal requirements within a three-year period.

Since my office now prosecutes enforcement actions for your department under state law, it is suggested that you keep me closely informed regarding plans to be submitted in this matter. It is assumed that this office will continue to handle litigation in the courts under the plan. See 52 OAG 394 (1963).

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