coal miners, but not metal miners, enjoyed Federal protection; and water pollution might be considered and administered largely distinct from air pollution. Former President Nixon underscored that situation when he proposed creation of EPA: Many agency missions, for example, are designed primarily In consequence Federal action tended to be shortsighted, even blindfolded to overall considerations. The consolidation efforts were an attempt to reverse that pattern, to have a single agency view the total problems in each of these fields. Centralized Federal attention directed to all household products, all workplaces, every aspect of the environment were the ideals that prompted the creation of CPSC, OSHA and EPA. C. RECENT LEGISLATIVE EFFORTS TO IMPROVE COORDINATION For various reasons those ideals were not fully realized at the outset. Each of those statutory consolidations, to one degree or another, allowed duplications to continue or imposed limitations on jurisdiction by granting exemptions for certain products or hazards. At least some of those exceptions were the result of political considerations. In addition, as with other areas of regulation, technological change typically moves far more rapidly than the government response to problems that come in the wake of new products which pose new risks. In certain instances, the government machinery, even in areas subject to consolidation, were found inadequate to address the new hazards. Further legislative refinement, therefore, was required. Sometimes it meant legislative clarification of an agency's jurisdiction. As previously noted, certain household products were exempt from CPSC authority. Some of those products, such as food and drugs, continued to be regulated by separate agencies. An apparent balancing of economic and health considerations led to the exemption of still other products, such as alcohol and tobacco, from effective regulation as health and safety hazards.50 In one case, Congress specifically noted a duplication, and allowed it to continue. That obvious conflict existed between the Poison Prevention Packaging Act, assigned to CPSC, and the Food, Drug and Cosmetic Act, which determined the jurisdiction of the FDA. Both acts authorized packaging standards for food, drugs and cosmetics. Though conceding that "dual regulation" would result, the House committee indicated its expectation that both agencies "will cooperate fully in coordination any overlapping statutory requirements. " 51 In still other cases, the extent of the statutory exemption was not clear. In 1976 the CPSC sought and received legislative 49 Ibid. 50 See testimony of Frank J. Rauscher. Director, National Cancer Institute, in Hearings, Committee on Appropriations, U.S. House of Representatives, 94th Cong., 1st sess., 140 (1976). It has also been noted that even moderate drinking may pose health hazards. See Journal of the American Medical Association, June 13, 1977, pp. 2585-87. 51 See House Report, fn. 4 supra, p. 52. clarification concerning its jurisdiction over pesticides, tobacco products and ammunition. As a result of the Consumer Product Safety Improvements Act of 1976, the agency now has no authority with respect to those products, thus eliminating some potential conflicts.52 In the 1970's, technological advance also prompted Congressional action to clarify agency powers. As is so often the case, the existence of certain hazards created by scientific developments have only recently been recognized. That was the situation with medical devices. As the House Interstate and Foreign Commerce Committee last year noted The post-war revolution in biomedical technology had resulted in the introduction of a wide variety of sophisticated devices. New developments in this electronic, plastic, metallurgy, and ceramics industries, coupled with progress in design engineering, led to invention of the heart pacemaker, the kidney dialysis machine, defibrillators, cardiac and renal catheters, surgical implants, artificial vessels and heart valves, intensive care monitoring units, and a wide spectrum of other diagnostic and therapeutic devices.53 That vast number of new products was subject only to limited and hesitant regulatory authority, and involved some conflict between the FTC and FDA.5+ Certain of those issues were addresed last year by Congress in the Medical Device Amendments Act.55 Jurisdictional conflicts were also to be expected with the Occupational Safety and Health Administration-even though the act that created OSHA was intended "to avoid duplication of regulatory effort by the various Federal agencies." 56 Yet the statute all but guaranteed that situation: the act precluded OSHA from establishing working conditions standards in areas where other federal agencies exercised "statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health." 57 The provision was framed, as the Fifth Circuit Court of Appeals would later state, in "Delphic terms"; 58 it raised many more questions than it answered. What if another agency had legal authority, but failed to act? Could OSHA then intervene? What if other agency action addressed only certain hazards or covered only certain classes of workers? Could OSHA establish standards for those risks or employees not included within coverage? So, too, with millions of workers and thousands of occupations, who could state definitively what workers were under the jurisdiction of what agency? Other conflicts naturally resulted from the kinds of hazards involved. In other words, some hazards-such 52 Public Law 94-284. 53 Committee on Interstate and Foreign Commerce, U.S. House of Representatives, 94th Cong., 2d sess., H.R. No. 94-853, p. 7 (Feb. 1976). Teresa M. Schwartz, "Protecting Consumer Health and Safety: The Need for Coordinated Regulation Among Federal Agencies," 43 Geo. Wash. L. Rev. 1031, 1050 (1975). 55 Public Law 94-295. Southern Ry. Co. v. OSHRC, 539 F.2d 335, 339 (4 Cir. 1976). Public Law 91-596, sec. 4 (b) (1). Southern Pac. Transp. Co. v. Usery, 539 F.2d 386, 389 (5 Cir. 1976). as noxious air pollutants-conceivably could be of concern to OSHA as well as other agencies. The Senate Labor and Public Welfare Committee noted that "some questions may arise after enactment" concerning jurisdictional duplication.59 The laws creating OSHA, CPSC and EPA all contained provisions addressed to organizational conflicts between agencies. The Consumer Product Safety Act provided that the CPSC and "other departments and agencies engaged in administering programs related to product safety shall, to the maximum extent practicable, cooperate and consult in order to insure fully coordinated efforts." 60 In similar salutory fashion, former President Nixon, in his message proposing EPA, expressed his expectation that the new agency "would, of course, work closely with and draw upon the expertise and assistance of other agencies having experience in the environmental area." 61 Finally, Congressional concern regarding OSHA jurisdiction is reflected by several provisions in that act. One section authorizes the Secretary of Labor to use, with the consent of any Federal agency, the services, facilities, and personnel of that agency, thereby allowing employees of another agency to function as agents for OSHA for workplace inspection and other purposes.62 More specifically, the statute also required that, within 3 years, the Secretary of Labor submit a report to the Congress containing any legislative recommendations "to avoid unnecessary duplication and to achieve coordination between" OSHA and other Federal agencies.63 A large number of Federal agencies are involved, directly or indirectly, in occupational safety and health concerns. In 1974 the Secretary of Labor identified no fewer than 40 Federal agencies, whose mandates potentially overlapped with that of OSHA.64 Some of them, such as the various agencies grouped within the Department of Transportation, consider their primary responsibility to be the general public safety; and regulations designed broadly to protect the public welfare can have an important if incidental impact on worker safety. Numerous Federal agencies, though having no express statutory responsibility in this area, do issue occupational safety and health standards as part of their authority to let government contracts. Yet there was only one Federal agency, aside from OSHA, which administered statutes designed primarily and exclusively to assure safe working conditions. And that agency, Mining Enforcement and Safety Administration (MESA) located within the Interior Department, was a source of some continuing jurisdictional conflict during the first years of OSHA's existence. MESA, among other statutes, was responsible for enforcement of the Metal and Non-Metallic Mine Safety Act, 1970 U.S. Code Cong. and Admin. News, p. 5199. Public Law 92-573, sec. 29 (c). 61 Message of the President, Reorganization Plan No. 3 of 1970, July 9, 1970. 2 Public Law 91-596, sec. 7(c) (1). * Id., sec. 4(b) (3). 4 Secretary of Labor's Proposed Report to Congress, as printed in BNA-OSHA Rept., Oct. 24, 1974, pp. 608, 611. a measure which reached beyond extraction of ore into milling operations.65 In consequence, both MESA and OSHA for several years jointly inspected operations in the cement industry. For the industry that meant interruptions by dual sets of inspectors conducting dual sets of inspections, as well as separate sometimes conflicting enforcement procedures, and recordkeeping and reporting requirements. In one case, when a worker fell to his death from a silo located in a cement plant, both agencies intervened; after deliberation, it was decided that the incident involved some 40 percent of OSHA, and 60 percent of MESA, jurisdiction. In 1974 an attempt was made to resolve the conflict through an OSHA-MESA agreement of understanding, which delineated and divided agency responsibility over milling operations. At least initially, the Interior Department was not pleased with the results of that agreement: within months of its execution, the Department reported that it "had not been entirely satisfactory." 67 The understanding, and subsequent clarifications favoring MESA jurisdiction, were certainly unacceptable to the miners' unions. To them, inclusion under OSHA standards and powers was far preferable to the comparatively weak provisions of MESA's Metal Safety Act. A representative of the United Cement, Lime and Gypsum Workers International Union outlined the consequences of that transfer: What did our members lose? They lost the right to a formal complaint and inspection procedure. MESA does not have that. They lost their legal right to walk around with the inspector. MESA does not have that. They lost the right to seek administrative and judicial review of inspections. The Metal Act does not provide this to employees, only to employers. They lost the right to contest abatement periods. They were forced to give up specific and enforceable OSHA standards for vague standards promulgated by MESA, many of which are advisory and not mandatory. What have our members gained? Nothing....68 That problem, coupled with the presence of other unresolved disputes between OSHA and MESA, was one reason which, in October 1977, prompted Congress to transfer the mine safety functions from Interior to the Department of Labor. It was not the principal reason: as previously noted, there had been longstanding disagreement over the location of mine safety administration within a department whose primary mission was promotion of ore and coal production." All the same jurisdictional overlap did play a significant role in that decision; assigning all occupational safety functions to a single department would, it was thought, "solve the remaining problems" of overlap and duplication." MESA was abolished, but mine safety was not, as might Public Law 89-577. See Hearings, Education and Labor Committee, U.S. House of Representatives, 94th Cong., 1st sess., pp. 264-5 (1975). James Clark, Assistant Secretary, Department of Interior to Roy L. Ash, Director, Office of Management and Budget, Dec. 6, 1974. Copy provided to the Committee by OSHA. 68 Hearings, Federal Mine Safety and Health Amendments Act of 1977, Committee on Human Resources, U.S. Senate, 95th Cong., 1st sess., p. 430 (March 1977). See Committee on Human Resources, U.S. Senate, 95th Cong., 1st sess., S.R. 95–181. p. 5 (May 1977). Also, see ch. 3 of this volume. 70 See ibid., Hearings, fn. 66, supra, pp. 111, 207; and Committee on Education and Labor, U.S. House of Representatives, 95th Cong., 1st sess.. H.R. 95–312, p. 16 (May 1977). be expected, transferred to OSHA. Instead the Federal Mine Safety and Health Amendments Act of 1977 established in the Labor Department a new Assistant Secretary, equal in status to that of OSHA, to administer a separate agency charged with all mining safety programs."1 The mining unions, in particular, were concerned about the possible consequences of being swallowed up within the larger concerns of OSHA. They argued that the particularly dangerous aspects of their occupation merited special Federal attention. So too, the general performance record of OSHA in its first years did not, in the final analysis, persuade mining representatives that inclusion there would be preferable to separate status in the same department.72 Thus the recent legislation triply benefited miners with a transfer to a department historically concerned with worker safety, separate status within that organization, and new powers, comparable to that of OSHA, to assure safe working conditions in all mining operations. In the future, whatever conflicts may arise between OSHA and its new counterparts will at least be resolved within a single department by officials directly responsible to the Secretary of Labor. Thus this year's mine safety enactment may be counted as another important step by Congress in the 1970's toward improving coordination in occupational safety. D. TOXIC SUBSTANCES LEGISLATION: THE LEAD AGENCY APPROACH Congressional action to coordinate Federal regulatory controls of toxic substances is still another instance of improving coordination in the health and safety field. The Toxic Substances Control Act,73 which took effect early in 1977, represents a major effort to assure concerted Federal regulation in an area critically important to the public welfare. Perhaps the most effective tools, and certainly the most innovative solutions to date, for organizational and jurisdictional conflicts on the Federal level are contained in this legislation. The act is a recognition of the serious nature of the problems posed by widespread use of chemicals in today's society. As the House report on this measure declared: Chemicals have become a pervasive and enduring part of our environment. They are in our air, our water, and our soil. They are used in our manufacturing processes, and they are essential components for consumer and industrial goods. Production and use of chemicals have surged in the recent past. For example, in the past ten years, the production of synthetic organic chemicals have expanded by 233 percent, and over 9,000 synthetic chemical compounds are each now in commercial use annually in amounts in excess of 1,000 pounds each. In 1973, production of the top 50 chemicals alone totaled 410 billion pounds." "Public Law 95-164. Whether mine safety should be accorded independent status within the Labor Department is a question which, we believe, should be reviewed by a future Congress. See Hearings, fn. 66, supra, p. 449. 78 Public Law 94-469. 74 Committee on Interstate and Foreign Commerce. U.S. House of Representatives, Legislative History of the Toxic Substances Act, p. 411 (1976). |