Regulations (Preambles to Final Rules) - Table of Contents|
| Record Type:||Occupational Exposure to Bloodborne Pathogens|
| Title:||Section 2 - II. Pertinent Legal Authority|
II. Pertinent Legal Authority
The primary purpose of the Occupational Safety and Health Act (29 U.S.C. 651 et seq.) (the Act) 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 concomitant authority vested in, the Secretary of Labor to set mandatory safety and health standards. The Congress specifically directed 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 the standards, and experience gained under this and other health and safety laws. Whenever practical, the standard promulgated shall be expressed in terms of objective criteria and of the performance desired. [Section 6(b)(5)].
Where appropriate, standards are required to include provisions for labels or other appropriate forms of warning to apprise employees of hazards, suitable protective equipment, exposure control procedures, monitoring and measuring of employee exposure, employee access to the results of monitoring, and training and education. Standards may also prescribe recordkeeping requirements where necessary or appropriate for enforcement of the Act or for the development of information regarding occupational accidents and illnesses [Section 8(c)].
In vacating OSHA's 1978 revision to its benzene standard, the Supreme Court required in Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 601, 64 L. Ed. 2d 1010, 100 S. Ct. 2844 (1980), that before the issuance of a new or revised standard pursuant to Section 6(b)(5) of the Act, OSHA must make two threshold findings: that a place of employment is unsafe in that significant risks are present; and that the risks can be reduced or eliminated by a change in practices (448 U.S. at 642).
The Court also stated "that the Act does limit the Secretary's power to requiring the elimination of significant risks" (448 U.S. at 644, n. 49). The Court indicated, however, that the significant risk determination is "not a mathematical straitjacket," and that "OSHA is not required to support its finding that a significant risk exists with anything approaching scientific certainty." The Court ruled that "a reviewing court [is] to give OSHA some leeway where its findings must be made on the frontiers of scientific knowledge [and that] the Agency is free to use conservative assumptions in interpreting the data with respect to carcinogens, risking error on the side of overprotection rather than underprotection" (448 U.S. at 655, 656). The Court also stated that "while the Agency must support its finding 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." (448 U.S. at 655, 656, n. 62).
OSHA has used these guidelines provided by the Supreme Court in setting health standards for known carcinogens such as benzene and ethylene oxide as well as other substances such as cotton dust whose adverse health effects is not carcinogenic but is very serious. Exposure to cotton dust, for example, causes byssinosis.
After OSHA has determined that a significant risk exists and that such risk can be reduced or eliminated by the regulatory action, it must set the standard "which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employees will suffer material impairment of health" [Section 6(b)(5) of the Act]. 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 Manufacture's Institute, Inc. v. Donovan, 452 U.S. 490 (1981). The Court held that "cost-benefit analysis is not required by the statute because feasibility analysis is." (452 U.S. at 509). The Court stated that the Agency could use cost-effectiveness analysis and choose the least costly of two equally effective standards. (452 U.S. 531,