The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6661 September 14, 1990 FIREMEN AND FIRE DEPARTMENTS: Occupational Safety and Health Act--authority of Departments of Labor and Public Health to require local fire chiefs to prepare hazardous chemical fire plans LABOR: Occupational Safety and Health Act--authority of Departments of Labor and Public Health to require local fire chiefs to prepare hazardous chemical fire plans The Department of Labor and the Department of Public Health have the authority, either on their own initiative or at the request of a local fire department employee, to impose monetary penalties against a city, village or township whose fire chief fails or refuses to prepare and disseminate a plan for responding to fires at a site where hazardous chemicals are used or produced as is required by Sec. 14i of MIOSHA. In the alternative, either department may request that the Attorney General seek a writ of mandamus on its behalf against a city, village or township and its fire chief to compel compliance with Sec. 14i of MIOSHA. Elizabeth P Howe Director Michigan Department of Labor 309 N. Washington Avenue P.O. Box 30015 Lansing, MI 48909 Raj M Wiener Director Michigan Department of Public Health 3500 N. Logan St. P.O. Box 30035 Lansing, MI 48909 My opinion has been requested on the following question: "Does either the Department of Labor or the Department of Public Health, on their own initiative or at the request of a local fire department employee, have the authority to require a local fire department chief to prepare and disseminate the plan required in Section 14i of 1986 PA 80, if the local fire department chief has otherwise failed or refused to do so." 1986 PA 80 is an amendment to the Michigan Occupational Safety and Health Act, 1974 PA 154, MCLA 408.1001 et seq; MSA 17.50(1) et seq (MIOSHA), and provides at section 14i as follows: "The chief of each organized fire department shall prepare and disseminate to each fire fighting employee of the organized fire department a plan for executing the department's responsibilities with respect to each site within the organized fire department's jurisdiction where hazardous chemicals are used or produced." Thus, the fire chief is mandated by the MIOSHA provision to prepare and disseminate the plan described above. The Departments of Labor and Public Health have authority to enforce the provisions of MIOSHA. Section 13 of MIOSHA provides, in pertinent part: "(1) The department of labor shall administer and enforce the provisions of this Act relative to occupational safety. "(2) The department of public health shall administer and enforce the provisions of this Act relative to occupational health." MIOSHA provides for various sanctions against employers for failure to comply with the Act and the standards promulgated thereunder. Section 35 of MIOSHA provides, in pertinent part: "(1) An employer who receives a citation for a serious violation of this act, an order issued pursuant to this act, or a rule or standard promulgated pursuant to this act shall be assessed a civil penalty of not more than $1,000.00 for each violation. "(2) An employer who fails to correct a violation for which a citation was issued within the period permitted for its correction may be assessed a civil penalty of not more than $1,000.00 for each day during which the failure or violation continues. A period permitted for corrections shall not begin to run until the date of the final order of the board, if a review proceeding before a board is initiated by the employer in good faith and not solely for delay or avoidance of a penalty. "(3) An employer who receives a citation for a violation of this act, an order issued pursuant to this act, or a rule or standard promulgated pursuant to this act, which violation is specifically determined not to be of a serious nature, may be assessed a civil penalty of not more than $1,000.00 for each violation. "(4) An employer who willfully or repeatedly violates this act, an order issued pursuant to this act, or a rule or standard promulgated pursuant to this act may be assessed a civil penalty of not more than $1,000.00 for each violation. "(9) The department of labor or the department of public health, if the employer is a public employer, instead of applying a civil penalty otherwise applicable to an employer under this section, may request that the attorney general seek a writ of mandamus in the appropriate circuit court to compel compliance with a citation, including the terms of abatement." (Emphasis added.) Thus, the Departments of Public Health and Labor have the authority to impose monetary penalties for violation of the act and the standards promulgated thereunder. Alternatively, the Departments have the authority, in the case of a public employer, of requesting that the Attorney General seek a writ of mandamus to compel compliance with a citation. The term "employer," as used in section 35 of MIOSHA, is defined in section 5(2) of MIOSHA as follows: "(2) 'Employer' means an individual or organization, including the state or a political subdivision, which employs 1 or more persons." The term "political subdivision," in turn, is defined in section 6(2) as follows: "(2) 'Political subdivision' means a city, village, township, county, school district, intermediate school district, or state or local government authorized or supported agency, authority, or institution." The fire chief is generally recognized as the head supervisory and administrative officer of the fire department. It is well established in occupational safety and health law that, in circumstances such as this, a supervisor's violative conduct may be imputed to the employer. Rothstein, Occupational Safety and Health Law, (2 ed), Sec. 100, p. 119. A fire chief's failure to prepare and disseminate a plan as required in the quoted MIOSHA provision may be imputed to the fire chief's employer, the city, village or township. It is my opinion, therefore, that the Department of Labor and the Department of Public Health have the authority, either on their own initiative or at the request of a local fire department employee, to impose monetary penalties against a city, village or township whose fire chief fails or refuses to prepare and disseminate a plan for responding to fires at a site where hazardous chemicals are used or produced as is required by Sec. 14i of MIOSHA. In the alternative, either department may request that the Attorney General seek a writ of mandamus on its behalf against a city, village or township and its fire chief to compel compliance with Sec. 14i of MIOSHA. Frank J. Kelley Attorney General