STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6428

March 31, 1987

MUNICIPALITIES:

Power to enact ordinance regulating "right to know" of occupational hazards

OCCUPATIONAL SAFETY AND HEALTH:

Agricultural workers "right to know" of hazardous chemicals in workplace

The Legislature has exempted employers engaged in agricultural operations from the "right to know" obligations imposed by the Michigan Occupational Safety and Health Act to inform and educate workers as to the presence in the workplace of hazardous chemicals regulated under the Federal Insecticide, Fungicide and Rodenticide Act or the Michigan Pesticide Control Act and identified in the list certified by the Director of the Department of Agriculture.

Municipalities are precluded by law from enacting ordinances regulating the "right to know" of workers concerning hazardous chemicals in the workplace.

Honorable Margaret O'Connor

State Representative

State Capitol

Lansing, Michigan 48909

You have requested my opinion on two questions concerning the "right to know" provisions of the Michigan Occupational Safety and Health Act (MIOSHA), MCL 408.1001 et seq; MSA 17.50(1) et seq. Your questions may be stated as follows:

The "right to know" provisions of MIOSHA were added to that Act by 1986 PA 80. The basic thrust of the amendments is to regulate hazardous chemicals in the workplace and to require employers to make information available to their workers concerning such hazardous chemicals. These requirements are set forth in MIOSHA, Secs. 14a through 14l, MCL 408.1014a through MCL 408.1014l; MSA 17.50(14a) through MSA 17.50(14l). MIOSHA, Sec. 14a, adopts and incorporates by reference the federal occupational health and safety communications standard promulgated by the United States Department of Labor and codified at 29 CFR 1910.1200. MIOSHA, Secs. 14b through 14l, expand the categories of employers subject to the standard adopted in Sec. 14a and impose certain additional requirements.

The exemption for agricultural operations to which you refer is contained in MIOSHA, Sec. 14f(1), and provides:

The term "agricultural operations" is defined in MIOSHA Sec. 4(1), as follows:

The agricultural exemption established by MIOSHA, Sec. 14(1), is sharply limited in scope. By its clear and express terms, Sec. 14f(1):

In order to assist agricultural employers in determining precisely which chemicals fall within the exemption, MIOSHA, Sec. 14f(2), provides:

I am informed that the Director of the Department of Agriculture has certified a list of chemicals to the Department of Public Health pursuant to the requirements of this section. That list contains 475 pages and represents an extensive compilation of the substances used in agricultural operations.

It follows that employers engaged in agricultural operations are exempt from compliance with the standard incorporated by reference in MIOSHA, Sec. 14a, and from compliance with MIOSHA, Secs. 14b to 14l, but only as to their use of those hazardous chemicals that are regulated under either (1) the Insecticide, Fungicide, and Rodenticide Act, 7 USC 136-136y, or (2) the Pesticide Control Act, MCL 286.551 et seq; MSA 12.340(1) et seq. Those chemicals qualifying for this exemption are set forth in a list which has been compiled by the Director of the Department of Agriculture in accordance with MIOSHA, Sec. 14f(2).

It is my opinion, therefore, that the Legislature has exempted employers engaged in agricultural operations from the "right to know" obligations imposed by the Michigan Occupational Safety and Health Act to inform and educate workers as to the presence in the workplace of hazardous chemicals regulated under the Federal Insecticide, Fungicide and Rodenticide Act or the Michigan Pesticide Control Act and identified in the list certified by the Director of the Department of Agriculture.

Your second question is whether counties and other local units of government are preempted from adopting their own "right to know" ordinances.

MIOSHA, Sec. 14m, provides:

In addition, 29 CFR 1910.1200, the federal standard incorporated by reference in MIOSHA, Sec. 14a(1), provides at 1910.1200a(2):

It noted that in Ohio Manufacturers Assoc v City of Akron, 801 F2d 824, (CA 6, 1986), app pend, 55 USLW 5544 (No 86-1242), the United States Court of Appeals for the Sixth Circuit held that this federal standard preempted a local unit of government from adopting a "right to know" ordinance concerning hazardous chemicals in the workplace. Although this case involved a local unit of government in Ohio, which unlike Michigan has not adopted a state OSHA plan, it nevertheless demonstrates the clear federal intent to preempt action by local governments and to restrict regulation in this area to the federal government or, in those states such as Michigan which have adopted a state OSHA plan, to restrict such regulation to the state level.

In MIOSHA, Sec. 14, the Michigan Legislature has provided in clear and express language that the federal standard incorporated by reference in Sec. 14a and the provisions of Secs. 14b to 14m are intended to occupy the entire field of regulation with respect to hazardous chemicals in the workplace, and has further provided that any local ordinance imposing requirements on employers or expanding the rights of employees on this subject shall not be enforceable. Thus, local units of government are preempted from adopting ordinances on this subject.

It is my opinion, therefore, that municipalities are precluded by law from enacting ordinances regulating the "right to know" of workers concerning hazardous chemicals in the workplace.

Frank J. Kelley

Attorney General