PARRIS N. GLENDENING, Governor

H.B. 259

Although this provision appears designed to anticipate and prevent a conflict with
OSHA that would result in termination of federal funding or of the MOSH program
itself, we cannot guarantee that the provision would so operate. The provision leaves it
unclear what event would trigger abrogation. MOSH is already on notice that enactment
of these provisions will threaten withdrawal of federal approval. Because OSHA has
available to it a variety of procedures, it cannot be predicted what steps might trigger
abrogation, and OSHA and MOSH might not be in agreement on this matter. For
example, OSHA could begin by assertion of concurrent jurisdiction. This would
presumably not be a loss of State authority triggering abrogation. Nonetheless, this would
be an encroachment upon operation of the State program, and could also be accompanied
by withdrawal of federal funding. An action to withdraw approval to operate a state plan
is a lengthy adversarial proceeding.⁴ It is not clear whether the prospect of "loss of
authority of the State" sufficient to trigger abrogation of these bills would occur at any
step prior to exhaustion of appeal of an adverse decision.

In summary, although we find no constitutional impediment to enactment of House
Bill 259 or Senate Bill 270, the implementation of their provisions would conflict with
federal OSHA requirements, resulting in any of a number of possible encroachments
upon the operations of the MOSH program. These may include the loss of federal
funding, subjection to concurrent federal jurisdiction, and initiation of adversarial
proceedings to withdraw federal approval. Any of these, however, may be insufficient to
trigger the abrogation provision of these bills to avoid such result.

Very truly yours,
J. Joseph Curran, Jr.
Attorney General

¹    This is the short title of the House bill; the short title of the Senate bill is simply
Occupational Safety and Health - Penalties. The only other variation in the final versions
of the two bills is in the rendering of a phrase in the purpose paragraph: in the House bill
it is "a nonserious violation;" in the Senate version it is "not a serious violation."

²    This difference from federal requirements may well be viewed as substantial, even
though the grace period would be available only for non-serious violations. A provision
that undermines preventive action to maintain a safe workplace could be viewed as
substantial.

³    An additional respect in which these bills appear to make MOSH less effective than
OSHA is that it is arguable that the penalty for failing to correct the type of violation
addressed in the bill within the 10-day grace period would be the penalty assessed for an
other than serious violation, rather than the more substantial penalty for failure to correct
a previously cited violation (a maximum of $7,000, rather than $7,000 per day). See, Labor
and Employment Article, § 5-810(a).

⁴    The process includes notice to the state, hearing before an administrative law judge,
and decision by the Secretary of Labor, which decision may also be appealed. See 29
U.S.C. 667(f); 29 CFR Part 1955.

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