103 
The regulatory authority of the Secretary of Labor under OSHA extends to air- 
borne contaminants known to be dangerous, but whether OSHA’s authority 
extends to unquantifiable and speculative dangers is certainly questionable. 
Another federal court relied on the legislative history of the Act in determining 
that a recognized hazard is one which is known to safety experts in the 
industry : 
An activity may be a “recognized hazard" even if the defendant employer is 
ignorant of the activity’s existence or its potential for harm. The term received 
a concise definition in a floor speech by Representative Daniels when he proposed 
an amendment which became the present version of the general duty clause : 
"A recognized hazard is a condition that is known to be hazardous, and is known 
not necessarily by each and every individual employer but is known taking into 
account the standard of knowledge in the industry. In other words, whether or 
not a hazard is ‘recognized’ is a matter for objective determination ; it does 
not depend on whether the particular employer is aware of it.” 116 Cong. Rec. 
(Part 28) 3877 (1970). The standard would be the common knowledge of safety 
experts who are familiar with the circumstances of the industry or activity 
in question — National Realty and Construction Company, Inc. 489 F. 2d 1257 
(D.C. Cir. 1973). 
It is dubious as to whether a court would uphold authority of the Secretary 
to promulgate and enforce standards for unknown dangers or hazards so as to 
prevent the inadvertent escape of an organism with a combination of unknown 
genetic characteristics. No specific authority was found to support the concept 
that the Secretary of Labor has authority to issue and enforce standards which 
would provide protection beyond the immediate working environment, or which 
would regulate, control, limit or possibly prohibit DNA research or use of its 
products. Under OSHA, it appears that the authority of the Secretary would be 
limited to the regulation of working conditions and the environment of em- 
ployees engaged in such research where there is some relationship to commerce 
and then that such regulations could extend only to known or recognized hazards. 
Presently, the National Environmental Policy Act (NEPA), 42 U.S.C. 4331 
ct scq., may in effect, have the most far reaching applicability to the initiation 
and monitoring of DNA experiments. While the Act only requires environmental 
impact statements (EIS) for federal projects and work conducted with federal 
grants or loans (40 C.F.R. 1500.5(a)(2)) the requirement does apply to any 
major federal project with the potential to significantly affect the environment. 
(40 C.F.R. 1500.6(a)). Currently all National Institutes of Health sponsored 
DNA research projects are required to submit an EIS assessing: 
( i ) the environmental impact of the proposed action. 
(ii) any adverse environmental effects which cannot be avoided should the 
proposal be implemented, 
(iii) alternatives to the proposed action, 
(iv) the relationship between local short-term uses of man's environment 
and the maintenance and enhancement of long-term productivity, and 
(v) any irreversible and irretrievable commitments of resources which 
would be involved in the proposed action should it be implemented. 42 U.S.C. 
4332(2) (C) (i)-(v). 
In addition, the regulations require submission of a draft EIS for comment 
and review by the Council on Environmental Quality (CEQ) and other outside 
reviewers (including other agencies). While the preparation of an EIS is gen- 
erally a pro forma exercise and review is usually cursory, the regulations do 
provide a basis for careful and meaningful monitoring of the proposed activity. 
To further assure safety of NIII funded DNA experiments, where there appear 
fundamental risks, the CEQ has authority to issue supplemental guidelines 
for EIS preparation as are necessary, 40 C.F.R. 1500.14. 
Currently, according to a recent newspaper report, virtually all DNA research, 
some $10 million worth this year, is NIH funded. The Washington Post, Friday, 
November 18, 1977, p. A-8. Thus, the regulatory potential under NEPA may be 
one of the most comprehensive means of monitoring, indirectly, the uses to which 
DNA products are put. 
The Public Health Service Act, 42 U.S.C. 264, provides for the promulgation of 
regulations to prevent the introduction, transmission, or spread of communicable 
diseases from abroad or from one State into another. Under the Act, the Secre- 
tary of Health, Education and Welfare (HEW) is authorized to provide for 
“such inspection, fumigation, disinfection, sanitation . . . destruction of animals 
or articles found to be so infected or contaminated as to be sources of dangerous 
[Appendix B — 362] 
