Without regard to chapter 5 of title 5 or to the other subsections of this section, the Secretary shall, as soon as practicable during the period beginning with the effective date of this chapter and ending two years after such date, by rule promulgate as an occupational safety or health standard any national consensus standard, and any established Federal standard, unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees. In the event of conflict among any such standards, the Secretary shall promulgate the standard which assures the greatest protection of the safety or health of the affected employees.
The Secretary may by rule promulgate, modify, or revoke any occupational safety or health standard in the following manner:
A description of how employees have been informed shall be contained in the certification. The information to employees shall also inform them of their right to petition the Secretary for a hearing.
Any affected employer may apply to the Secretary for a rule or order for a variance from a standard promulgated under this section. Affected employees shall be given notice of each such application and an opportunity to participate in a hearing. The Secretary shall issue such rule or order if he determines on the record, after opportunity for an inspection where appropriate and a hearing, that the proponent of the variance has demonstrated by a preponderance of the evidence that the conditions, practices, means, methods, operations, or processes used or proposed to be used by an employer will provide employment and places of employment to his employees which are as safe and healthful as those which would prevail if he complied with the standard. The rule or order so issued shall prescribe the conditions the employer must maintain, and the practices, means, methods, operations, and processes which he must adopt and utilize to the extent they differ from the standard in question. Such a rule or order may be modified or revoked upon application by an employer, employees, or by the Secretary on his own motion, in the manner prescribed for its issuance under this subsection at any time after six months from its issuance.
Whenever the Secretary promulgates any standard, makes any rule, order, or decision, grants any exemption or extension of time, or compromises, mitigates, or settles any penalty assessed under this chapter, he shall include a statement of the reasons for such action, which shall be published in the Federal Register.
Any person who may be adversely affected by a standard issued under this section may at any time prior to the sixtieth day after such standard is promulgated file a petition challenging the validity of such standard with the United States court of appeals for the circuit wherein such person resides or has his principal place of business, for a judicial review of such standard. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary. The filing of such petition shall not, unless otherwise ordered by the court, operate as a stay of the standard. The determinations of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole.
In determining the priority for establishing standards under this section, the Secretary shall give due regard to the urgency of the need for mandatory safety and health standards for particular industries, trades, crafts, occupations, businesses, workplaces or work environments. The Secretary shall also give due regard to the recommendations of the Secretary of Health and Human Services regarding the need for mandatory standards in determining the priority for establishing such standards.
29 U.S.C. § 655
REFERENCES IN TEXTThe effective date of this chapter, referred to in subsec. (a), is the effective date of Pub. L. 91-596, Dec. 29, 1970, 84 Stat. 1590, which is 120 days after Dec. 29, 1970, see section 34 of Pub. L. 91-596 set out as an Effective Date note under section 651 of this title.
STATUTORY NOTES AND RELATED SUBSIDIARIES
CHANGE OF NAME"Secretary of Health and Human Services" substituted for "Secretary of Health, Education, and Welfare" in subsecs. (b)(1), (6)(C), (7), and (g) pursuant to section 509(b) of Pub. L. 96-88 which is classified to section 3508(b) of Title 20, Education.
TERMINATION OF ADVISORY COMMITTEES Advisory committees in existence on January 5, 1973, to terminate not later than the expiration of the 2-year period following January 5, 1973, unless, in the case of a committee established by the President or an officer of the Federal Government, such committee is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a committee established by the Congress, its duration is otherwise provided by law. See section 14 of Pub. L. 92-463, Oct. 6, 1972, 86 Stat. 776, set out in the Appendix to Title 5, Government Organization and Employees.
PROHIBITION ON EXPOSURE OF WORKERS TO CHEMICAL OR OTHER HAZARDS FOR PURPOSE OF CONDUCTING EXPERIMENTS Pub. L. 102-394, title I, §102, Oct. 6, 1992, 106 Stat. 1799, provided that: "None of the funds appropriated under this Act or subsequent Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Acts shall be used to grant variances, interim orders or letters of clarification to employers which will allow exposure of workers to chemicals or other workplace hazards in excess of existing Occupational Safety and Health Administration standards for the purpose of conducting experiments on workers' health or safety."Similar provisions were contained in the following prior appropriation acts: Pub. L. 102-170, title I, §102, Nov. 26, 1991, 105 Stat. 1114. Pub. L. 101-517, title I, §102, Nov. 5, 1990, 104 Stat. 2196. Pub. L. 101-166, title I, §102, Nov. 21, 1989, 103 Stat. 1165. Pub. L. 100-202, §101(h) [title I, §102], Dec. 22, 1987, 101 Stat. 1329-256, 1329-263. Pub. L. 99-500, §101(i) [H.R. 5233, title I, §102], Oct. 18, 1986, 100 Stat. 1783-287, and Pub. L. 99-591, §101(i) [H.R. 5233, title I, §102], Oct. 30, 1986, 100 Stat. 3341-287.Pub. L. 99-178, title I, §102, Dec. 12, 1985, 99 Stat. 1109.Pub. L. 98-619, title I, §102, Nov. 8, 1984, 98 Stat. 3311.
OCCUPATIONAL HEALTH STANDARD CONCERNING EXPOSURE TO BLOODBORNE PATHOGENS Pub. L. 102-170, title I, §100, Nov. 26, 1991, 105 Stat. 1113, provided that:"(a) Notwithstanding any other provision of law, on or before December 1, 1991, the Secretary of Labor, acting under the Occupational Safety and Health Act of 1970 [ 29 U.S.C. 651 et seq.], shall promulgate a final occupational health standard concerning occupational exposure to bloodborne pathogens. The final standard shall be based on the proposed standard as published in the Federal Register on May 30, 1989 (54 FR 23042), concerning occupational exposures to the hepatitis B virus, the human immunodeficiency virus and other bloodborne pathogens. "(b) In the event that the final standard referred to in subsection (a) is not promulgated by the date required under such subsection, the proposed standard on occupational exposure to bloodborne pathogens as published in the Federal Register on May 30, 1989 (54 FR 23042) shall become effective as if such proposed standard had been promulgated as a final standard by the Secretary of Labor, and remain in effect until the date on which such Secretary promulgates the final standard referred to in subsection (a). "(c) Nothing in this Act [enacting section 962 of Title 30, Mineral Lands and Mining, amending section 290b of Title 42, The Public Health and Welfare, enacting provisions set out as notes under section 1070a of Title 20, Education and section 1383 of Title 42, and amending provisions set out as notes under section 1255a of Title 8, Aliens and Nationality, and section 1221-1 of Title 20] shall be construed to require the Secretary of Labor (acting through the Occupational Safety and Health Administration) to revise the employment accident reporting regulations published at 29 C.F.R. 1904.8."
RETENTION OF MARKINGS AND PLACARDS Pub. L. 101-615, §29, Nov. 16, 1990, 104 Stat. 3277, provided that: "Not later than 18 months after the date of enactment of this Act [Nov. 16, 1990], the Secretary of Labor, in consultation with the Secretary of Transportation and the Secretary of the Treasury, shall issue under section 6(b) of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 655(b) ) standards requiring any employer who receives a package, container, motor vehicle, rail freight car, aircraft, or vessel which contains a hazardous material and which is required to be marked, placarded, or labeled in accordance with regulations issued under the Hazardous Materials Transportation Act [former 49 U.S.C. 1801 et seq.] to retain the markings, placards, and labels, and any other information as may be required by such regulations on the package, container, motor vehicle, rail freight car, aircraft, or vessel, until the hazardous materials have been removed therefrom."
CHEMICAL PROCESS SAFETY MANAGEMENT Pub. L. 101-549, title III, §304, Nov. 15, 1990, 104 Stat. 2576, provided that:"(a) CHEMICAL PROCESS SAFETY STANDARD.-The Secretary of Labor shall act under the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 653 ) [ 29 U.S.C. 651 et seq.] to prevent accidental releases of chemicals which could pose a threat to employees. Not later than 12 months after the date of enactment of the Clean Air Act Amendments of 1990 [Nov. 15, 1990], the Secretary of Labor, in coordination with the Administrator of the Environmental Protection Agency, shall promulgate, pursuant to the Occupational Safety and Health Act, a chemical process safety standard designed to protect employees from hazards associated with accidental releases of highly hazardous chemicals in the workplace."(b) LIST OF HIGHLY HAZARDOUS CHEMICALS.-The Secretary shall include as part of such standard a list of highly hazardous chemicals, which include toxic, flammable, highly reactive and explosive substances. The list of such chemicals may include those chemicals listed by the Administrator under section 302 of the Emergency Planning and Community Right to Know Act of 1986 [ 42 U.S.C. 11002 ]. The Secretary may make additions to such list when a substance is found to pose a threat of serious injury or fatality in the event of an accidental release in the workplace."(c) ELEMENTS OF SAFETY STANDARD.-Such standard shall, at minimum, require employers to-"(1) develop and maintain written safety information identifying workplace chemical and process hazards, equipment used in the processes, and technology used in the processes;"(2) perform a workplace hazard assessment, including, as appropriate, identification of potential sources of accidental releases, an identification of any previous release within the facility which had a likely potential for catastrophic consequences in the workplace, estimation of workplace effects of a range of releases, estimation of the health and safety effects of such range on employees;"(3) consult with employees and their representatives on the development and conduct of hazard assessments and the development of chemical accident prevention plans and provide access to these and other records required under the standard;"(4) establish a system to respond to the workplace hazard assessment findings, which shall address prevention, mitigation, and emergency responses;"(5) periodically review the workplace hazard assessment and response system;"(6) develop and implement written operating procedures for the chemical process including procedures for each operating phase, operating limitations, and safety and health considerations;"(7) provide written safety and operating information to employees and train employees in operating procedures, emphasizing hazards and safe practices;"(8) ensure contractors and contract employees are provided appropriate information and training;"(9) train and educate employees and contractors in emergency response in a manner as comprehensive and effective as that required by the regulation promulgated pursuant to section 126(d) of the Superfund Amendments and Reauthorization Act [of 1986] [ Pub. L. 99-499 set out in a note below];"(10) establish a quality assurance program to ensure that initial process related equipment, maintenance materials, and spare parts are fabricated and installed consistent with design specifications; "(11) establish maintenance systems for critical process related equipment including written procedures, employee training, appropriate inspections, and testing of such equipment to ensure ongoing mechanical integrity;"(12) conduct pre-start-up safety reviews of all newly installed or modified equipment;"(13) establish and implement written procedures to manage change to process chemicals, technology, equipment and facilities; and"(14) investigate every incident which results in or could have resulted in a major accident in the workplace, with any findings to be reviewed by operating personnel and modifications made if appropriate."(d) STATE AUTHORITY.-Nothing in this section may be construed to diminish the authority of the States and political subdivisions thereof as described in section 112(r)(11) of the Clean Air Act [ 42 U.S.C. 7412(r)(11) ]."
WORKER PROTECTION STANDARDSPub. L. 99-499, title I, §126(a)-(f), Oct. 17, 1986, 100 Stat. 1690-1692, as amended by Pub. L. 100-202, §101(f) [title II, §201], Dec. 22, 1987, 101 Stat. 1329-187, 1329-198, provided:"(a) PROMULGATION.-Within one year after the date of the enactment of this section [Oct. 17, 1986], the Secretary of Labor shall, pursuant to section 6 of the Occupational Safety and Health Act of 1970 [ 29 U.S.C. 655 ], promulgate standards for the health and safety protection of employees engaged in hazardous waste operations."(b) PROPOSED STANDARDS.-The Secretary of Labor shall issue proposed regulations on such standards which shall include, but need not be limited to, the following worker protection provisions:"(1) SITE ANALYSIS.-Requirements for a formal hazard analysis of the site and development of a site specific plan for worker protection."(2) TRAINING.-Requirements for contractors to provide initial and routine training of workers before such workers are permitted to engage in hazardous waste operations which would expose them to toxic substances."(3) MEDICAL SURVEILLANCE.-A program of regular medical examination, monitoring, and surveillance of workers engaged in hazardous waste operations which would expose them to toxic substances."(4) PROTECTIVE EQUIPMENT.-Requirements for appropriate personal protective equipment, clothing, and respirators for work in hazardous waste operations."(5) ENGINEERING CONTROLS.-Requirements for engineering controls concerning the use of equipment and exposure of workers engaged in hazardous waste operations. "(6) MAXIMUM EXPOSURE LIMITS.-Requirements for maximum exposure limitations for workers engaged in hazardous waste operations, including necessary monitoring and assessment procedures."(7) INFORMATIONAL PROGRAM.-A program to inform workers engaged in hazardous waste operations of the nature and degree of toxic exposure likely as a result of such hazardous waste operations."(8) HANDLING.-Requirements for the handling, transporting, labeling, and disposing of hazardous wastes."(9) NEW TECHNOLOGY PROGRAM.-A program for the introduction of new equipment or technologies that will maintain worker protections."(10) DECONTAMINATION PROCEDURES.-Procedures for decontamination."(11) EMERGENCY RESPONSE.-Requirements for emergency response and protection of workers engaged in hazardous waste operations."(c) FINAL REGULATIONS.-Final regulations under subsection (a) shall take effect one year after the date they are promulgated. In promulgating final regulations on standards under subsection (a), the Secretary of Labor shall include each of the provisions listed in paragraphs (1) through (11) of subsection (b) unless the Secretary determines that the evidence in the public record considered as a whole does not support inclusion of any such provision."(d) SPECIFIC TRAINING STANDARDS.-"(1) OFFSITE INSTRUCTION; FIELD EXPERIENCE.-Standards promulgated under subsection (a) shall include training standards requiring that general site workers (such as equipment operators, general laborers, and other supervised personnel) engaged in hazardous substance removal or other activities which expose or potentially expose such workers to hazardous substances receive a minimum of 40 hours of initial instruction off the site, and a minimum of three days of actual field experience under the direct supervision of a trained, experienced supervisor, at the time of assignment. The requirements of the preceding sentence shall not apply to any general site worker who has received the equivalent of such training. Workers who may be exposed to unique or special hazards shall be provided additional training."(2) TRAINING OF SUPERVISORS.-Standards promulgated under subsection (a) shall include training standards requiring that onsite managers and supervisors directly responsible for the hazardous waste operations (such as foremen) receive the same training as general site workers set forth in paragraph (1) of this subsection and at least eight additional hours of specialized training on managing hazardous waste operations. The requirements of the preceding sentence shall not apply to any person who has received the equivalent of such training. "(3) CERTIFICATION; ENFORCEMENT.-Such training standards shall contain provisions for certifying that general site workers, onsite managers, and supervisors have received the specified training and shall prohibit any individual who has not received the specified training from engaging in hazardous waste operations covered by the standard. The certification procedures shall be no less comprehensive than those adopted by the Environmental Protection Agency in its Model Accreditation Plan for Asbestos Abatement Training as required under the Asbestos Hazard Emergency Response Act of 1986 [ Pub. L. 99-519 see Short Title of 1986 Amendment note, set out under section 2601 of Title 15, Commerce and Trade]."(4) TRAINING OF EMERGENCY RESPONSE PERSONNEL.-Such training standards shall set forth requirements for the training of workers who are responsible for responding to hazardous emergency situations who may be exposed to toxic substances in carrying out their responsibilities."(e) INTERIM REGULATIONS.-The Secretary of Labor shall issue interim final regulations under this section within 60 days after the enactment of this section [Oct. 17, 1986] which shall provide no less protection under this section for workers employed by contractors and emergency response workers than the protections contained in the Environmental Protection Agency Manual (1981) 'Health and Safety Requirements for Employees Engaged in Field Activities' and existing standards under the Occupational Safety and Health Act of 1970 [ 29 U.S.C. 651 et seq.] found in subpart C of part 1926 of title 29 of the Code of Federal Regulations. Such interim final regulations shall take effect upon issuance and shall apply until final regulations become effective under subsection (c). "(f) COVERAGE OF CERTAIN STATE AND LOCAL EMPLOYEES.-Not later than 90 days after the promulgation of final regulations under subsection (a), the Administrator shall promulgate standards identical to those promulgated by the Secretary of Labor under subsection (a). Standards promulgated under this subsection shall apply to employees of State and local governments in each State which does not have in effect an approved State plan under section 18 of the Occupational Safety and Health Act of 1970 [ 29 U.S.C. 667 ] providing for standards for the health and safety protection of employees engaged in hazardous waste operations."