102 
solid waste materials resulting from industrial, commercial, and agricultural 
operations.” 42 U.S.C. 3552(4). 
The Federal Hazardous Substances Act, 15 U.S.C. 1261 et seq. gives the Con- 
sumer Product Safety Commission authority to regulate labeling and interstate 
transportation of hazardous and toxic substances intended for household use. 
The household use condition undoubtedly limits the Act’s applicability in the 
DNA research situation. If the hazardous substance is intended by the manufac- 
turer or producer to be used for non-household commercial or industrial purposes, 
and is packaged and distributed for non-commercial purposes, it is outside the 
Act’s jurisdiction unless it is actually diverted for household use. Consumer 
Product Safety Commission Advisory Opinion No. 136 (October 9, 1974). Thus, 
while the definition of hazardous substance includes any toxic substance “ ( other 
than a radioactive substance) which has the capacity to produce personal injury 
or illness to man through ingestion, inhalation, or absorption through any body 
surface,” to be banned under the Act the substance must be “intended or pack- 
aged for use in the household.” 15 U.S.C. 1261 (g), (q) (1). 
Under the Hazardous Materials Transportation Control Act. IS U.S.C. S34 
et seq., the Department of Transportation has regulatory authority over the 
interstate transport of explosives, radioactive materials, etiologic agents, and 
other dangerous articles. The Department is entrusted with formulating regula- 
tions. which may be changed on its own motion or upon application by any inter- 
ested party, for the safe transportation of all listed hazardous materials. A 
wide-ranging list of materials presently subject to the Act's requirement may be 
found at 49 C.F.R. Part 17. While the authority of the Department of Transporta- 
tion does not go to direct regulation of the uses to which DNA products may he 
put. it may be used to limit and control the extent and manner of dissemination of 
those products by vehicles which are operated on land by “any for-liire carrier 
engaged in interstate or foreign commerce.” 18 U.S.C. 832(a). Again, as under 
many federal laws, the non-commercial, independent researcher conducting a 
private, local experimental facility may not come within the scope of the Act 
so long as he does not engage commercial vehicles to transport materials lie 
uses or produces. 
With respect to the Occupational Safety and Health Act (OSHA), 29 U.S.C. 
651 et seq., the Congress expressed, as the basic purpose of the Act. to assure 
“so far as possible every working man and woman in the Nation safe and health- 
ful working conditions” and provided for the Secretary of Labor to promulgate 
standards for places and conditions of employment which are free from “recog- 
nized hazards.” 29 U.S.C. 654. However, the Act specifically excludes State or 
political subdivision of a State from the definition of employer and while the Act 
brings within its orbit all employers engaged in a business which affects com- 
merce, it is questionable, here, as under other federal laws, whether OSHA's 
regulatory authority extends to private recombinant DNA research conducted 
by an individual with a few employees in a small, local laboratory. 
In Dekle v. Todd, a state court held that OSHA did not apply with respect to 
a two man farm roof repair job. 207 S.E. 654 (Ga. App. 1974). However, a federal 
court of appeals did apply the Act to a local building service maintenance 
supply company which supplied services to businesses engaged in interstate com- 
merce. Brennan v. Occupational Safety and Health Review Commission. *192 F. 
2d 1027 (1974). Thus. OSHA may very well be applicable to recombinant DNA 
research, generally, so long as there is at least a minimal contact with inter- 
state commerce. It is also probable that the Act will not be applicable to a 
private researcher conducting experimentation in a small, local research facility, 
even if he does have a few employees. The Act certainly will not apply absent 
an employer-employee relationship. 
Another aspect of the Act limits its potential utility for regulation of DNA 
products. Under OSHA, the authority of the Secretary of Labor is limited to 
recognized hazards and to the working environment. The courts have recognized 
that protection of the workplace under OSHA extends to those hazards which 
are identifiable by technical instruments. For instance, a federal court lias- 
upheld the use of air sampling pumps to collect contaminants in the air that 
an employee would normally breathe and the Commission's consequent order 
that action be taken to reduce the contaminant. American Smelting and Refining 
Company v. Occupational Safety and Health Review Commission, 501 F. 2d 504 
(1974). However, the contaminant in that case was airborne concentrations of 
lead and the regulatory requirements were based on a recognized national 
standard for airborne lead. Thus. American Smelting supports the concept that 
[Appendix B — 361] 
