Economic and Technological Feasibility in Regulating Toxic Substances under the Occupational Safety and Health Act
![handle is hein.journals/eclawq7 and id is 295 raw text is: Economic and Technological Feasibility
in Regulating Toxic Substances Under
the Occupational Safety and Health Act
Jeffrey Lewis Berger* and Steven D. Riskin**
INTRODUCTION
The 1970 Occupational Safety and Health Act (OSH Act)1 authorizes
the establishment and enforcement of standards to protect working people
from a wide variety of occupational dangers, ranging from obvious physical
hazards to the subtle and latent effects of exposure to toxic chemicals. In the
statute's first seven years, the degree to which the complete protection of
safety and health should be compromised by the technological difficulty and
economic cost of achieving that protection has been an issue of constant
controversy. The issue arises under a variety of names in all health and
environmental regulation. Under OSH Act, the issue arises under the rubric
of feasibility.2
OSH Act explicitly mentions feasibility only once, as a factor relevant
in the formulation of permanent standards for toxic materials and harm-
ful physical agents.3 In several other contexts the statute uses other phrases
which may obliquely indicate a concern for placing technological and
economic limitations on absolute safety and health. Neither ,the statute nor
the legislative history, however, defines feasibility or explains how the
limitations on safety and health are to be determined. The statute and the
Copyright © 1978 by Ecology Law Quarterly.
* Attorney, Occupational Safety and Health Division, Office of the Solicitor, U.S.
Department of Labor, Washington D.C.; B.A. 1969, State University of New York at Buffalo;
J.D. 1973, Rutgers Law School, Newark, New Jersey.
** Attorney, 1975-77, Occupational Safety and Health Division, Office of the Solicitor,
U.S. Department of Labor, Washington, D.C.; B.A. 1970, Columbia College; J.D. 1973,
Rutgers Law School, Newark, New Jersey.
The opinions in the Article are solely those of the authors and should not be attributed to
the Department of Labor or any other government entity. The authors gratefully acknowledge
the editorial assistance of editors David Doniger and Robert Whalen of the Ecology Law
Quarterly in the preparation of this Article.
1. Pub. L. No. 91-596, 84 Stat. 1590 (codified at 29 U.S.C. §§ 651-678 (1970)).
2. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 831 (1961) defines the term
feasibility as [t]he quality of being feasible, i.e., -[c]apable of being done.
3. OSH Act § 6(b)(5), 29 U.S.C. § 655(b)(5) (1970).](ViewImageLocal?handle=hein.journals/eclawq7&div=17&collection=&method=preview&ext=.png&size=3)
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Economic and Technological Feasibility in Regulating Toxic Substances under the Occupational Safety and Health Act
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