Academic journal article Harvard Law Review

OSHA's Feasibility Policy: The Implications of the "Infeasibility" of Respirators

Academic journal article Harvard Law Review

OSHA's Feasibility Policy: The Implications of the "Infeasibility" of Respirators

Article excerpt

In 1970, Congress enacted the Occupational Safety and Health Act (1) (OSH Act). As part of its comprehensive framework for promoting safe working conditions, the statute empowered the Occupational Safety and Health Administration (OSHA) to establish regulations on occupational exposure to hazardous materials. The Secretary of Labor is required to ensure "to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health" from occupational exposure to toxic materials. (2) This authorization appears to be sweeping, and it was both applauded by those who hoped for a robust regulatory system that would prevent workers from being sickened by toxic chemicals (3) and met with dismay by those who feared draconian results. (4) However, "profound difficulties" soon became apparent. (5) Now, forty-six years later, hopes for a maximally protective system for regulating workplace chemical exposure have been disappointed. (6) How OSHA sets permissible levels of chemical exposure is, as this Note will show, one striking example of how the agency has fallen short of exercising its full authority to protect workers' health.

Feasibility standards are a feature of environmental, health, and safety laws. (7) Although some scholars have fiercely defended feasibility standards, (8) others have criticized them for mandating irrational decisions. A primary criticism is that feasibility standards lead to inefficient overregulation. (9) More recently, Professors Jonathan Masur and Eric Posner have criticized the lack of a normative basis for the feasibility standard and warned that underregulation could result. (10)

But what has been missing from this discussion is a close study of how OSHA implements its feasibility standard. (11) This Note surveys the process by which OSHA has demonstrated that a permissible exposure limit (PEL) for a hazardous chemical is both economically and technologically feasible. Economic feasibility may appear to be more open-ended (12) and therefore a more important lever for standard-setting--indeed, the murkiness of its meaning has been amply discussed in the scholarly literature. (13) However, technological feasibility has set the limit on each of OSHA's recent significant health standards. (14) In determining the lowest exposure level that is technologically feasible, one might expect that the analysis would include the use of any technology that OSHA requires to achieve the PEL once it has been set. So OSHA's categorical exclusion of respirators--personal protective devices worn on the face to filter either airborne particles or chemicals from inhaled air (15)--from its technological feasibility analysis presents a puzzle. Either the way in which OSHA has interpreted technological feasibility is impermissible because it excludes from its technological feasibility analysis a technology that OSHA effectively admits is feasible, or OSHA has more discretion in interpreting what is feasible than is commonly realized.

Part I of this Note introduces the feasibility standard and its interpretation by the courts, with an emphasis on how practical constraints interact with that interpretation. Part II provides an overview of how OSHA defines technological feasibility in practice and surveys four OSHA health standards to discern how OSHA makes its feasibility determinations. Part III examines OSHA's implicit policy on respirators, asks whether that policy is lawful, and explores the implications for how much discretion OSHA is afforded in defining what is "feasible." The Note concludes with a suggestion for how OSHA might more systematically determine which technologies to include in its analysis of whether a PEL is technologically feasible.

I. "FEASIBLE" DEFINED

The language "to the extent feasible" was always intended to be a curb. The phrase was added to the original text of the bill that would become the OSH Act after Senator Peter Dominick expressed fear that the initial language of section 6(b)(5) (16) could permit a mandate that would "close every business in [the] nation. …

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