Regulations (Preambles to Final Rules) - Table of Contents|
| Record Type:||Hazard Communication|
| Title:||Section 2 - II. Pertinent Legal Authority|
II. Pertinent Legal Authority
The primary purpose of the Occupational Safety and Health Act (the Act) (29 U.S.C. 651 et seq.) is to assure, so far as possible, safe and healthful working conditions for every American worker over the period of his or her working lifetime. One means prescribed by the Congress to achieve this goal is the mandate given to, and the authority vested in, the Secretary of Labor to set mandatory safety and health standards.
Authority for issuance of this standard is found primarily in sections 6(b), 8(c)(1), and 8(g)(2) of the Act. 29 U.S.C. 655(b), 657(c)(1), 657(g)(2). Section 6(b), and in particular Section 6(b)(5), governs the issuance of occupational safety and health standards dealing with toxic materials or harmful physical agents. Section 8(c)(1) of the Act empowers the Secretary to require employers to make, keep, and preserve records regarding activities related to the Act and to make such records available to the Secretary. Section 8(g)(2) of the Act empowers the Secretary to "prescribe such rules and regulations as [she] may deem necessary to carry out [her] responsibilities under this Act * * *."
Section 3(8) of the Act, 29 U.S.C. 652(8), defines an occupational safety and health standard as follows:
[A] standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide a safe or healthful employment and places of employment.
In addition, Congress specifically stated in section 6(b)(5) that:
The Secretary, in promulgating standards dealing with toxic materials, or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life. Development of standards under this subsection shall be based upon research, demonstrations, experiments, and such other information as may be appropriate. In addition to the attainment of the highest degree of health and safety protection for the employee, other considerations shall be the latest available scientific data in the field, the feasibility of standards, and experience gained under this and other health and safety laws. Whenever practicable, the standard promulgated shall be expressed in terms of objective criteria and of the performance desired.
The Supreme Court has said that section 3(8) applies to all permanent standards promulgated under the Act and requires the Secretary, before issuing any standard, to determine that it is reasonably necessary and appropriate to remedy a significant risk of material health impairment. Industrial Union Dep't v. American Petroleum Institute, 448 U.S. 607 (1980). The "significant risk" determination constitutes a finding that, absent the change in practices mandated by the standard, the workplaces in question would be "unsafe" in the sense that workers would be threatened with a significant risk of harm. Id. at 642. This finding, however, does not require mathematical precision or anything approaching scientific certainty if the "best available evidence" does not warrant that degree of proof. Id. at 655-656; 29 U.S.C. 655 (b)(5). Rather, the Agency may base its findings largely on policy considerations and has considerable leeway with the kinds of assumptions it applies in interpreting the data supporting it. 448 U.S. at 656.
Moreover, under the authority of Section 6(b)(7), 29 U.S.C. 655(b)(7), any standard issued by the Secretary shall contain requirements that are essentially "information - gathering" in function, including:
* * * prescrib[ing] the use of labels or other appropriate forms of warning as are necessary to insure that employees are apprised of all hazards to which they are exposed, relevant symptoms and appropriate emergency treatment, and proper conditions and precautions of safe use or exposure.
These requirements may be imposed at levels of risk below what would be necessary for the setting of exposure limits because they serve the purpose of "keep[ing] a constant check on the validity of the assumptions made in developing the permissible exposure limit, giving it a sound evidentiary base for decreasing the limit if it was initially set too high." Id. at 658 (footnote omitted). They also provide basic protections for workers in the absence of specific permissible exposure limits, particularly by providing employers with guidance for designing protective programs.
After OSHA has determined that a significant risk exists and that such risk can be reduced or eliminated by a proposed standard, it must set a standard "which most adequately assures, to the extent feasible on the basis of the best available evidence, that no employee will suffer material impairment of health * * *." 29 U.S.C. 655(b)(5). The Supreme Court has interpreted this section to mean that OSHA must enact the most protective standard possible to eliminate a significant risk of material health impairment, subject to the constraints of technological and economic feasibility. American Textile Manufacturers Institute, Inc. v. Donovan (ATMI), 452 U.S. 490 (1981). The "feasibility" constraint has also been described simply as limiting standards to requiring only what is "capable of being done" or "achievable." Id. at 508-509. The Court held that "cost - benefit analysis is not required by the statute because feasibility analysis is." Id. at 509. The Court stated that the Agency could use cost - effectiveness analysis and choose the less costly of two equally effective standards. Id. at 531 n.32.
A. Finding of Significant Risk
In United Steelworkers of America v. Auchter, 763 F.2d 728, 735 (3d Cir. 1985), the U.S. Court of Appeals for the Third Circuit concluded, as a threshold matter, that the hazard communication rule is a section 6 standard under the Act which is aimed at correcting a particular "significant risk" in the workplace. The HCS is not "merely an enforcement or detection procedure designed to further the goals of the Act generally." Id. (quoting test for distinguishing standards from regulations first explained in Louisiana Chemical Ass'n v. Bingham, 657 F.2d 777, 782 (5th Cir. 1981)). See also Associated Builders & Contractors v. Brock, 862 F.2d at 67.
The practices mandated by the standard - hazard evaluations, written hazard communication programs, labels and other forms of warning, material safety data sheets, and information and training - are, at bottom, directed not merely at the identification of workplace chemicals, but more significantly at the correction of their hazards as well. This correction will occur largely as a result of employee compliance with instructions on how to protect themselves when exposed to hazardous chemicals that are an integral part of any hazard communication program, as well as by other hazard - reducing strategies adopted by employers when they become more aware of the hazards in their workplaces (e.g., chemical substitution). And because the record clearly indicates that inadequate communication about serious chemical hazards endangers workers, and that the practices required by this standard are necessary and appropriate to the elimination or mitigation of these hazards, the Secretary is able to make the threshold "significant risk" determination that is an essential attribute of all permanent standards. The Third Circuit Court of Appeals agreed that "inadequate communication is itself a hazard, which the standard can eliminate or mitigate." United Steelworkers v. Auchter, 763 F.2d at 735.
A number of commenters have questioned OSHA's general finding of significant risk. These commenters argue that OSHA needed to find significant risk: (1) For each industry covered (e.g., Ex. 84 (construction)); (2) for each chemical covered (e.g., Ex. 11-129 (grain dust)); and (3) for each exposure situation (e.g., Ex. 85 (mixtures, articles)). Although these comments are addressed in more detail in Part III of this preamble where the rule is summarized, briefly, it is clear from the relevant court decisions that these specific findings are not required for a standard such as this, where the risk of inadequate knowledge is the same in every application of the standard.
In Associated Builders & Contractors v. Brock, 862 F.2d 63 (1988), the Third Circuit responded to the first two complaints against OSHA's significant risk finding. The Court noted that the general significant risk finding for the original 1983 rule was appropriate for the entire manufacturing sector, even though OSHA did not make individual findings for each of the twenty major Standard Industrial Classification (SIC) Code manufacturing subdivisions. Id. at 67. The Court concluded that "[t]here is no more obvious need for industry specific significant risk determinations for the [non-manufacturing] industries than for subdivisions of the manufacturing sector." Id. at 67-68. The Court held that for this "performance - oriented information disclosure standard covering thousands of chemical substances used in numerous industries * * * the significant risk requirement must of necessity be satisfied by a general finding concerning all potentially covered industries. A requirement that the Secretary assess risk to workers and the need for disclosure with respect to each substance in each industry would effectively cripple OSHA's performance of the duty imposed on it by 29 U.S.C. 655(b)(5); a duty to protect all employees, to the maximum extent feasible." Id. at 68. OSHA was not required to assess individually the significant risk that would be alleviated by the HCS's application to each of the seventy major business classifications, much less for each of the hazardous substances used in those industries.
As for arguments that OSHA should only apply the HCS where chemical exposures pose known significant risks (e.g., Ex. 85), the Agency concludes that neither the record evidence nor policy considerations support such an approach. The record shows that although chemical manufacturers or importers may know, in principle, the use to which their product will be put, they generally do not know enough about downstream operations to make reliable predictions about downstream exposure levels. Therefore, information must be provided for all hazardous chemicals to which employees may be exposed, regardless of any judgments by the chemical manufacturer or importer about possible levels of risk. 48 FR 53295, 53296, 53307. Furthermore, to allow chemical manufacturers or importers to edit hazard information based on their predictions of the extent of downstream exposures is to deprive downstream employers and employees an opportunity to make an effective assessment of potential hazards based on complete information on the individual chemical and in light of any possible additive or synergistic effects that may be posed by the presence of other hazardous chemicals in the workplace. Id. at 53295, 53323. OSHA finds that workers would be threatened with a significant risk of harm if chemical manufacturers or importers are allowed to delete hazard information based on a presumption of downstream risks, thus depriving downstream employees and employers from having complete information on which to base their decisions regarding control measures. See, General Carbon Co. v. OSHRC, 860 F.2d 479 (DC Cir. 1988).
In addition, in light of 6(b)(7) of the Act requiring OSHA to "insure that employees are apprised of all hazards to which they are exposed," the Agency concludes that employees must be informed about all potential hazards before the worker is exposed to them and not only when there is overexposure. Linking HCS applicability to downstream exposures posing a significant risk is contrary to the standard's very purpose: to change downstream employer and employee behavior before adverse health effects occur. 48 FR 53296. OSHA has concluded that imposing informational requirements is necessary and appropriate to protect workers even when OSHA has not determined that the level of risk at a particular worksite warrants a substance - specific standard that would employ more elaborate types of controls. Cf. Associated Builders & Contractors, 862 F.2d at 67-68; United Steelworkers, 819 F.2d at 1269-70.
B. Finding of Feasibility
OSHA originally chose to direct the HCS to employers in manufacturing, based on what were believed at that time to be relevant policy considerations. The Third Circuit held that "[o]nce a standard has been promulgated, however, the Secretary may exclude a particular industry only if he informs the reviewing court, not merely that the sector selected for coverage presents greater hazards, but also why it is not feasible for the same standard to be applied in other sectors where workers are exposed to similar hazards." United Steelworkers, 763 F.2d at 738. Therefore, because inadequate communication of chemical hazards is itself a significant risk, id. at 735, OSHA was required by the Court order to apply the HCS to all workplaces where employees are exposed to chemical hazards, to the extent feasible.
The feasibility question raised by the HCS is not difficult to resolve. This standard does not relate to activities on the frontiers of scientific knowledge; the requirements are not the sorts of obligations that approach the limits of feasibility. Associated Builders & Contractors, 862 F.2d at 68. The record on which the original and expanded HCS's were based did not contain credible evidence that the HCS would be technologically or economically infeasible for any industrial sector, id., and there was substantial evidence of feasibility, 52 FR 31855-58.
Part III of this preamble addresses in more detail the comments which argue that individual requirements of the rule are infeasible (e.g., Exs. 29 (distribution of MSDSs by wholesalers); 32 (provision of MSDSs at construction sites)). As a general matter, however, OSHA concludes that there is substantial evidence in the record that the performance - oriented, informational provisions of the HCS are capable of being done, and will not threaten any industry's "long-term profitability," ATMI, 452 U.S. at 531 n.55.
Certainly, the technical expertise needed to develop the chemical hazard information is feasible for producers of the hazardous chemicals. See, e.g., 48 FR 53296-99. Likewise, there are no technological barriers preventing implementation of the other HCS requirements, in that they are conventional and common business practices that are administrative in nature. 52 FR 31855.
Moreover, OSHA concludes that the HCS administrative requirements can be economically incorporated into present practices. OSHA believes all businesses that produce, distribute, and use chemicals can ensure that their containers are maintained with proper hazard warnings just as these businesses would maintain labels or markings on containers to ensure that downstream purchasers and workers handling or using the chemicals comprehend the containers' contents and intended uses. Hazard information can be sent from supplier to user just as suppliers are able to send the chemical product itself to the user. All employers are able to acquire and maintain up-to-date MSDSs for hazardous chemicals just as they are able to acquire and maintain up-to-date cost information and performance specifications on those very same products. OSHA also concludes it is feasible for employers to inform and train workers regarding chemical hazards present in the workplace just as employers are capable of instructing and training their workers to perform their jobs in an efficient and speedy manner. 52 FR 31856-57. OSHA concludes that the record contains substantial evidence of the economic feasibility of the HCS, including such evidence as: (1) The numerous examples of compliance in all industries (see, e.g., id., Ex. 4-169 (71% of the 42,779 manufacturing facilities inspected by OSHA from the initial compliance date to Feb. 1988 in full compliance; of those cited for violating the HCS, majority had a hazard communication program although it was deficient in some respect)); (2) the similar implementation of other Federal communication laws and of state laws (see, e.g., Ex. 4-183 (some 1000 employers inspected by Maryland Apr. 1, 1987 to Mar. 31, 1988, in total compliance with state law; over 1100 non-manufacturing workplaces inspected by Tennessee Oct. 1, 1987 to June 30, 1988, in total compliance), 4-184 (over 16,000 establishments inspected by Washington Jan. 1, 1987 to Dec. 31, 1987, in total compliance)); (3) the detailed regulatory impact and regulatory flexibility analyses which concluded that the costs associated with the HCS were negligible in relation to revenues and profits of affected industries (Ex. 4-1, 4-2. See also 52 FR 31867-76, 53 FR 29846-49); and (4) the development of numerous guidelines and consultative services offered by the Federal Government, States, trade associations, unions, professional organizations, and private consultants (see e.g., 52 FR 31857, 53 FR 29848; Exs. 4-116, 4-118, 4-121, 4-122, 4-123, 4-128, 4-129, 4-130, 4-137, 4-138, 4-139, 4-144, 4-147, 4-148, 4-149, 4-150, 4-151, 4-154, 4-157, 4-158, 4-159, 4-160, 71-16, 71-55, 71-58, 71-61.) OSHA has tailored the standard for a number of manufacturing and non-manufacturing operations to ensure that its requirements are feasible and effective in protecting all workers. See 52 FR 31858. Cf. 452 U.S. at 531, n.32 (OSHA can choose the less costly of two equally effective standards.) Modifications adopted in this final rule also act to tailor the rule to be more effective by incorporating language which clarifies the requirements.
Regulations (Preambles to Final Rules) - Table of Contents|