Regulations (Preambles to Final Rules) - Table of Contents Regulations (Preambles to Final Rules) - Table of Contents
• Record Type: Longshoring and Marine Terminals
• Section: 2
• Title: Section 2 - II. Pertinent Legal Authority

II. Pertinent Legal Authority

The purpose of the Occupational Safety and Health Act, 29 U.S.C. 651 et seq. ("the Act") is to "assure so far as possible every working man and woman in the nation safe and healthful working conditions and to preserve our human resources" (29 U.S.C. 651(b)). To achieve this goal, Congress authorized the Secretary of Labor to promulgate and enforce occupational safety and health standards. (See 29 U.S.C. 655(a) (authorizing summary adoption of existing consensus and federal standards within two years of the Act's enactment), 655(b) (authorizing promulgation of standards pursuant to notice and comment), 654(b) (requiring employers to comply with OSHA standards).)

A safety or health standard is 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 safe or healthful employment or places of employment." 29 U.S.C. 652(8).

A standard is reasonably necessary or appropriate within the meaning of section 652(8) if it substantially reduces or eliminates significant risk, and is economically feasible, technologically feasible, cost effective, consistent with prior Agency action or supported by a reasoned justification for departing from prior Agency actions, supported by substantial evidence, and is better able to effectuate the Act's purposes than any national consensus standard it supersedes. See 58 FR 16612-16616 (March 30, 1993).

The Supreme Court has noted that a reasonable person would consider a fatality risk of 1/1000 to be a significant risk, and would consider a risk of one in one billion to be insignificant. Industrial Union Department v. American Petroleum Institute, 448 U.S. 607, 646 (1980) (the "Benzene decision"). So a risk of 1/1000 (10-3) represents the uppermost end of a million-fold range suggested by the Supreme Court, somewhere below which the boundary of acceptable versus unacceptable risk must fall. The Court further stated that "while the Agency must support its findings that a certain level of risk exists with substantial evidence, we recognize that its determination that a particular level of risk is significant will be based largely on policy considerations." See, e.g. International Union, UAW v. Pendergrass, 878 F.2d 389 (D.C. Cir. 1989) (formaldehyde standard); Building and Constr. Trades Department, AFL-CIO v. Brock, 838 F.2d 1258, 1265 (D.C. Cir. 1988) (asbestos standard).

A standard is technologically feasible if the protective measures it requires already exist, can be brought into existence with available technology, or can be created with technology that can reasonably be expected to be developed. American Textile Mfrs. Institute v. OSHA 452 U.S. 490, 513 (1981) ("ATMI"), American Iron and Steel Institute v. OSHA, 939 F.2d 975, 980 (D.C. Cir 1991) ("AISI").

A standard is economically feasible if industry can absorb or pass on the cost of compliance without threatening its long term profitability or competitive structure. See ATMI, 452 U.S. at 530 n. 55; AISI, 939 F.2d at 980.

A standard is cost effective if the protective measures it requires are the least costly of the available alternatives that achieve the same level of protection. ATMI, 453 U.S. at 514 n. 32; International Union, UAW v. OSHA, 37 F.3d 665, 668 (D.C. Cir. 1994) ("LOTO III").

All standards must be highly protective. See 58 FR 16614-16615; LOTO III, 37 F.3d at 668. However, health standards must also meet the "feasibility mandate" of section 6(b)(5) of the Act, 29 U.S.C. 655(b)(5). Section 6(b)(5) requires OSHA to select "the most protective standard consistent with feasibility" that is needed to reduce significant risk when regulating health hazards. ATMI, 452 U.S. at 509.

Section 6(b)(5) also directs OSHA to base health standards on "the best available evidence," including research, demonstrations, and experiments (29 U.S.C. 655(b)(5)). OSHA shall consider "in addition to the attainment of the highest degree of health and safety protection * * * the latest scientific data * * * feasibility and experience gained under this and other health and safety laws." Id.

Section 6(b)(7) of the Act authorizes OSHA to include among a standard's requirements labeling, monitoring, medical testing and other information gathering and transmittal provisions (29 U.S.C. 655(b)(7)).

[62 FR 40142, July 25,1997]


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