Document V39DozjBpXj2j9pOabq87OXYN

Federal Register / Vol. 51, No. 119 / Friday. June 20. 1986 / Rules and Regulations 22615 proceeding, including materials discussed or relied on in the November 1983 and April 1984 notices, the record of Ihe informal hearing, and all written comments and exhibits received. III. 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 the concomitant authority vested in, the Secretary of Labor to set mandatory safety and health standards. The Congress specifically mandated 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 Ihe best available evidence, that no employee will suffer material impairment of health or functional capacity even if auch 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 Ihe 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. (Section 8(b)(5)) Where appropriate, OSHA 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 lo the results of monitoring, appropriate medical examinations, and training and education. Moreover, where a standard prescribes medical examinations or other tests, they must be available at no cost to the employee (Section 6(b)(7)).. Standards may also prescribe recordkeeping requirements where necessary or appropriate for the enforcement of the Act or for developing information regarding occupational accidents and illnesses (Section 8(c)). In vacating OSHA's revision to its benzene standard, the Supreme Court required in Industrial Union Deportment, AFL-CIO v. American Petroleum Institute, 448 U.S. 601, 65 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 Ihe Act. OSHA must make two threshold findings. OSHA must find that a significant risk exists under the current standard and that the issuance of a new standard would reduce or eliminate that risk. The Court stated: We agree . . . that subsection 3(8) requires the Secretary to find, as a threshold matter, that the toxic substance in question poses a significant health risk in the workplace and that a new, lower standard is therefore "reasonably necessary or appropriate to provide safe and healthful employment and places of employment." 448 U.S. 807 at 814-15:85 L. Ed. 2d 1010 at 101819. The Court also stated: . . . Before he can promulgate any permanent health or safety standard, the Secretary (of Labor) Is required to make a threshold finding that a place of employmenl is unsafe--in the sense that significant riska are present and can be eliminated or lessened by a change in practices. . . . (448 U.S. at 642. 651. Ed. 2d at 1035) Ihe decision, although it recognized Ihe uncertainties involved, indicated that the determination of "significant risk" should, if at all possible, be established on the basis of an analysis of the best available evidence through such means as quantitative risk assessments. However, in making that determination, the Supreme Court in its general guidance for the future noted that . i The requirement that a "significant" risk be identified is not a mathematical strailjacket it is the Agency's responsibility to determine, in the first instance, what it considers to be a "significant risk." (448 US. at 855. 85 L Ed. 2d at 1043) It pointed out that while OSHA . . . must support its findings that a certain level of riBk oxistB by 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 658, 65 L Ed. 2d at 1043, n. B2) Finally, the Court pointed out that ... OSHA is not required to support its finding lhal a significant risk exists with anything approaching scientific certainty. Although the Agency's findings must be supported by substantial evidence.... OSHA (has) some leeway where Us findings must be made on the frontiers of scientific, knowledge. (448 U.S. at 858, 85 L. Ed. 2d at 1043) In the only concrete example of significance, the Court stated: Some risks are plainly acceptable end others are plainly unacceptable. If. for example, the odds are one in a billion that a person wit) die from cancer by taking a drink of chlorinated water, the risk clearly could not be considered significant. On the other hand, if the odds ere one in a thousand that regular inhalation of gasoline vapors that are 2% benzene will be fata); a reasonable person might welt consider the risk significant and take appropriate stepa to decrease or eliminate 1L (Id. at 655. 658 L. Ed. 2d at 1043.) After OSHA has determined that a significant risk exists and that such risk can be reduced or eliminated by the proposed standard, it must set the standard "which most adequately assures, to the extent feasible on the basis of the best available evidence, that no employees wilt 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 only lo Ihe constraints of technological and economic feasibility. [American Textile Manufacturers Institute, Inc. v. Donovan. 452 U.S. 490 (1981)). Moreover, section 4(b)(2) of the Act provides for OSHA standards to apply to construction, maritime, and other workplaces where the Secretary determines that these standards are more effective than the existing standards that would otherwise apply to these workplaces. The Secretary so finds, and these standards will therefore apply to all workplaces where the Secretary has authority to regulate. IV. Health Effects A. Overview ofAsbestos-Related Diseases OSHA is aware of no instance in which exposure to a toxic subsiancc has more clearly demonstrated detrimental health effects on humans than has asbestos.exposure. The diseases caused by asbestos exposure are lifethreatening or disabling. Among these disases are lung cancer, cancer of the mesothelial lining of the pleura and peritoneum, asbestosis. and gastrointestinal cancer. Of all of the diseases caused by asbestos, lung cancer constitutes the greatest health risk for American asbestos workers. Lung cancer haa.been responsible for more than half of the excess mortality from asbestos exposure in some occupational cohorts. The relationship between lung cancer and asbestos exposure has been established in numerous epidemiologic studies of diverse groups. Asbestosinduced lung cancer usually has a latency period in excess of 20 years, and this cancer may be manifested at a younger age than is true for lung cancer victims who are not exposed to asbestos (Craighead et al.. Ex. 84-033). Few cases of lung cancer are curable, despite advances in medical and surgical GLEASON-000863