Regulations (Preambles to Final Rules) - Table of Contents Regulations (Preambles to Final Rules) - Table of Contents
• Record Type: Occupational Exposure to Lead (November 1978)
• Section: 2
• Title: Section 2 - II. Pertinent Legal Authority

II. PERTINENT LEGAL AUTHORITY

The primary purpose of the Act is to assure, so far as possible, safe and healthful working conditions for every working man and woman. One means prescribed by Congress to achieve this goal is the authority vested in the Secretary of Labor to set mandatory safety and health standards. The standards setting process under section 6 of the Act is an integral part of an occupational safety and health program in that the process permits the participation of interested parties in consideration of medical data, industrial processes and other factors relevant to the identification of hazards. Occupational safety and health standards mandate the requisite conduct or exposure level and provide a basis for insuring the existence of safe and healthful workplaces.

The Act provides 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 on research, demonstrations, experiments, and other such 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 the standards, and experience gained under this and other health and safety laws (Sec. 6(b)(5)).

Sections 2(b)(5) and (6), 20, 21, 22, and 24 of the Act show that Congress recognizes that conclusive medical or scientific evidence including causative factors, epidemiological studies or dose-response data, may not exist for many toxic materials or harmful physical agents. Nevertheless, final standards cannot be postponed because definitive medical or scientific evidence is not currently available. Indeed, while standards are to be based on by the best available evidence, the legislative history clearly shows that "it is not intended that the Secretary be paralyzed by debate surrounding diverse medical opinion." House Committee on Education and Labor (Rept. No. 91-1291, 91st Cong., 2d sess., p. 18 (1970)). This Congressional judgment is supported by the courts which have reviewed standards promulgated under the Act. In sustaining the standard for occupational exposure to vinyl chloride (29 CFR 1910.1017), the U.S. Court of Appeals for the Second Circuit stated that "it remains the duty of the Secretary to act to protect the working man, and to act even in circumstances where existing methodology or research is deficient. Society of the Plastics Industry Inc. v. Occupational Safety and Health Administration, 509 F. 2d 1301, 1308 (2nd Cir. 1975), cert. den. sub nom., Firestone Plastics Co. v. United States Department of Labor," 95 S. Ct. 1998, 4 L. Ed. 2d 482 (1975).

A similar rational was applied by the U.S. Court of Appeals for the District of Columbia Circuit in reviewing the standard for occupational exposure to asbestos (29 CFR 1910.1001). The Court stated that:

Some of the questions involved in the promulgation of these standards are on the frontiers of scientific knowledge, and consequently, as to them insufficient data is presently available to make a fully informed factual determination. Decision making must in that circumstance depend to a greater extent upon policy judgments and less upon purely factual judgments. Industrial Union Department, AFL-CIO v. Hodgson, 499 F. 2d 467, 474 (D.C. Cir. 1974).

In setting standards, the Secretary is expressly required to consider the feasibility of the proposed standards. Senate Committee on Labor and Public Welfare (S. Rept. No. 91-1282, 91st Cong., 2d sess., p. 58 (1970.) Nevertheless, considerations of technological feasibility are not limited to devices already developed and in use. As discussed more fully in the section on feasibility, standards may require improvements in existing technologies or require the development of new technology. Society of the Plastics Industry, Inc. v. Occupational Safety and Health Administration, supra at 1309, American Iron & Steel Institute v. OSHA, 577 F. 2d 825 (3rd Cir. 1978).

Where appropriate, the standards are to include provisions for labels or other forms of warning to apprise employees of hazards, suitable protective equipment, control procedures, monitoring and measuring of employee exposure, employee access to the results of monitoring, and appropriate medical examinations. Standards may also prescribe recordkeeping requirements where necessary or appropriate for enforcement of the Act or for developing information regarding occupational accidents and illnesses (section 8(c)). The permanent standard for lead was developed on the basis of the above legal considerations.

[43 FR 52952, Nov. 14, 1978]

Regulations (Preambles to Final Rules) - Table of Contents Regulations (Preambles to Final Rules) - Table of Contents