Document zd3YjR2xRjjMQpo6Ep7Qpm703

IW? * M s4 D E FA 72 T SV1 SNT ArL-CIO t . V . A R L , C*OfNT l PLAINTIFF'S EXHIBIT DUP-1282 I 6Ll&>i+-<ZJ * M.**&r*rrr v ^ *** orw j - xoooo *** cooc ::i n.. j* A*01 CLAT * 4 *a'sii*`,> v* 9 .cfoo Or/ * tf -w ttc-o THE TOP POSITION OH ECONOMIC FEASIBILITY (Abstracted from the Reply Brief Far Petitioners for review of the Secretary of Labor's standard for exposure to asbestos dust: (IUD, AFL-CIO et al vs. Hodgson) Section 6(b)(5) of The Occupational Safety and Health Act of 1970 on its face contains no express reference to the relevance of economic considerations in the Secretary's standard setting function. Thera have been statutes where Congress pro* vlded in express tans that economic costs should be taken into account in promulgating standards (national Emission Standard Act of 19S5| 46 U.S.C. s 1857 f-l(s) -- the Secretary must promul gate tender'd* concerning motor vehicle emissions "giving appropri ate consideration to technological feasibility end economic costs;" * Water Pollution Control Act, 33 U.S.C. mmU60<cK3> end 1163(b)(1) -- due consideration oust be given to the "economic feasibility" and "eemocmie coats.") QSHA, however, provides only thee the Secretary shall sac the standard "which most adequately assures, to the extent fsaslble. on the base available evidence, that no employe* will euffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for tha period of his working Ilfs." From this reference eo "feasibility," earned a **9 s;n :***..* teams ?* ** mr as c ,r* .h .... i* /*. - w.e * i \tm * s% 50? 0903219 DU 024600 -2- tha argument la read* that Congrese necessarily intended Chat, in addition to technological capabilities, economic costs were also relevant in setting standards. In support of this position, reliance is placed on the dictionary definition of "feasible" and the legislative history of OSHA. With respect to the former, the dictionary provide* little comfort to the proponents of this Interpretation. For the redesign of a plant (e.g.) is plainly something which Is feasible -- "capable of being done or carried out" -- if adequate technology is available, even though it may involve a major financial expenditure for the company or industry concerned. The legislative history -- far from supporting the argu ment -- strongly militates egelnse the relevance of economic considera tions. The legislative history, and most particularly the concerns voiced by Senator Dominick (Colo.) and others whose efforts led Senator Javlts (N.Y.) to insert the "to the extent feasible" language in the bill, ineluc tably shows ebet Congress intended only to avoid statutory language "which qfght be Interpreted to require absolute health end safety In ell cases, regardless of feasibility. . . ." (San. Javlts' explanation of his emendmane. Leg. Use. 196) (snphasls added). In turn, it is significant, thpt the legislative concern centered about the feet that "absolute" language in Cbm statute could be taken to mean that the Secretary had to prami1gate DUP 0903220 DU 024601 -3- a standard which guaranteed or warranted that no injuries vculd occur. Of course, this would ignor*. the practical realities that notwithstanding the most comprehensive and rigorous standards seme injuries would occur Incident to the inherent hazards of certain jobs. Precisely because of this, Congress inserted the "to the extent feasible" provision. But there is nothing in the legislative history even to sug gest that in doing so Congress desired or Intended to aeeonaodate employer economic problems -- real or imagined. We thus have a situation whara the legislative history which gave rise to the "feasibility" limitation did not ralata to aeonomic or coat considerations. Insofar as tha legislative history contains anjt diract rafaraneas to aeonomic coats, it supports tha conclusion that 1C la not an appilcabla eonsIdaration. Thus, Senator Eaglaton CD..Ho.), in endorsing OSHA, commented (Leg. Hist. 1130-1131): "Tha coats that will be Incurred by employers in matting tha standards of health end safety to be established under this bill are. In my view, reason able end necessary costa of doing business. Whether we, as individuals, are motivated by simple humanity or by simple economics, wa can no longer permit profits * to be dependant upon an unsafe or unhealthy worksite." Likewise, Senator Yarborough CD. - Tam.) stated (Leg. Hist. 444.): "This is legislation that has bean needed in this country for many years. Wa have no national comprehensive occupational health and safety hill. X a man in a manufacturing plant in one Scats were to put into effect safety measures to protccc hla workers snd across tha Stats line that practice was not followed, theoretically there would ba a ehaapar operational baas. ... OOP 0903221 DU 024602 / -4- Wa need 4 Federal statute, not to cry to federalize things, but to equalize the cost in cne industry vis-a-vis another. We know the costs would be put into consumer gcods but that is the price we should pay for the 80 million workers In America." To accept the "economics" position also would be incon sistent with the overall structure of the Act. Section 6(c)(1), OSHA, empowers the Secretary to promulgate emergency temporary standards which cake effect immediately upon publica tion in Che Federal Register; the only preconditions for exercising this power la e determination by the Secretary "(A) thee employees ere exposed to grave danger from exposure to substances or agents. . . toxic or physically harmful. . . end (B) Chet such emergency standard is nscsssairy to protaee employees from such danger." Consideration of economic coses play no role in the Secretary's determination concerning the precise mnergency temporary standard to be promulgated. In this connection, it should be emphasised Chet the Secretary did promulgate such an emergency standard on SMiabar 27, 1971 covering exposure to eabeeeos dust; further. In lower ing the acceptable level of exposure frcai 12 to S fibers, the Secretary relied exclusively on his determination that the two sherre-quoted statutory prerequisites had been satisfied. Significantly, while the impact of lamedlets-compilenee with this new more serlngenc standard undoubtedly maane iaeraeead costa to many employers in the asbestos industry, the Secretary's staesmsnt of reasons contained no reference to such sconcmlc considerscions. DU? 0903222 DU 024603 - 5- Section 23, OS HA, amends the Smell Business Ac: to authorize loans: "Co assise any snail business concern In effecting additions co or alterations In Che equipment, facili ties or methods of operations of iuch business in order to comply with the applicable standards promul gated pursuant to Section 6 (OSHA). ... if the Administrator (under SBA) determines that such concern is likely to suffer substantial econanic Injury without assistance under this peregreph." The logical conclusion co be drawn froa this provision is that Congress did not consider the costa which would be borne by saall businesses e velid basis for lapoaing a less stringent standard bat, instead, offered the eicernetlve of the *bove>quotnd loen provision as d method for offsetting ehe economic iapect of ouch stringent standards. Further, Section 6(b)(6)(a), sets forth a procedure whereby en individual employer or employers nay obtain a tasporary order granting a variance froa a standard under certain United circuastances. The legislative hiacory eakee clear that "ecouoele hardship Is not co be e consideration for the qualification for a ceaporsry extension order" (H. kept. *o. 91-17M', p. 33; Lag. Hit. U88, 1201). The Government h-s eUncwledged in lea Br^ef on ebe asbestos case, p. 60) that "it is doubtful chat the V*i my ma consider economic laeeera in granelnf any varlanea undar Section 6<bX*)d." An intolerable anooaly would result if ehe Secretary could take into consideration stonceie cost feetore in praoulgeting e standard, but hd could nee do so when an eaployar eharaafter seeks a temporary order granting a variance froa thee standard. DUP 0903223 024604 Finally, we note the position of the Secratsry of Labor in proceedings to enforce safety and health standards before the Occupational Safety and Health Review Conmifsion. thus, in Hodgson v. American Smelting & Refining Co.. CSHRC Docket No. 10, the Secretary cited the employer for a serious violation in allowing airborne inorganic lead concentrations to exist at its Omaha, Nebr. smelter which constituted e recognized hazard likely to cause deeth or serious phyalcal tiers to affected employes*. The employer, es en interim measure, provided respirators to the effected employees. It contended that the ins tailstion of engineering control* could only be achieved at an estimated cost of 20 million dollars and, ec- cordingly, urged that it should not be compelled to take such drastic affirmative action. The Secretary's brltf to the OSH&C hearing examiner (dated January 3, 1972) is of particular relevenet here. The Secretary responded (Brief, pp.26*28) to the employer's above-stated argument as follows: "Sven if the 20 million dollar figure were eorrece and economies were e faceor In ehe consideration of feasibility, the cose cf any potential modifications means nothing by ltsalf. Respond ent C) submitted no evidence whaeever es to the financial impact on its operations of tha cost of necessary engineering modifications on or prior to June 30, 1971. If economies is an isaua, cose by Itself is only half the question. Tha other half of the question weald bo the financial impact of a coat of 20 million dollars on the employer, as Co which there was no evidence whatever. . . We sub mit chat whatever respondent's attitude might have bean previous to the peesege of the Act, the necesaery provisions for the safety and health of employees la new, under that act, as necessary a cost of doing business es expenditures which say result in increased production or profits, end it should be considered es such. . . . OOP 0903224 DU 024605 7' "V tubmit chac engineering controls afford the base protection to tmployees, and abatement by engineering control* snould b* required in all ir.scer.ce* to the extent that such engineering controls ere feasible. It is our further position Chet './here there is suf ficient engineering ability to accomplish the control the question cf economies of implementation of the control* will not be a factor unlaa* it involves major reconstruction of e plant which would seriously jeopardies the financial condition of the company and chen only if there were feasible alternative administra tive controls or protection devices available." It is thus self-evident that in assessing "feasibility'' Che Secretary's express reluctance in ASAftOO. for example, to attach any significance to economic considerations except in the most extreme circumstance# -- stands in marked contrast to the position that as a general principle economic considerations ere relevant to standard seeting. ### June 27, 1*73 DUP 0903225 DU 024606