The Winter 2017 edition of the American Bar Association’s SciTech Lawyer contains an article, Peering Through the Celestial Looking Glass: The Legal State of Play for Working in Space, by two lawyers with Bigelow Aerospace, Christopher M. Hearsey and Ryan T. Noble. They report that the Occupational Safety and Health Administration applied its radiation exposure regulations to NASA astronauts, and had to grant NASA a waiver because OSHA never intended its radiation limits to apply in the space environment. Noting that the Commercial Space Launch Act addresses crew and occupant safety, the authors suggest that the CSLA preempts the OSHA statute for crew on board a launch or reentry vehicle.
OSHA limits its applicability to working conditions that are not otherwise regulated by other federal agencies affecting occupational safety or health. 26 Because FAA/AST exercises statutory authority to proscribe and enforce regulations affecting the occupational safety and health of space vehicle crew, OSHA would likely be preempted in so far as it applies to licensed or permit ted launches. The necessity of vesting workplace health and safety authority in an agency with specialized expertise in space flight becomes self-evident considering that ionizing radiation is only one of many hazards unique to the space environment. Crew and occupants will also incur physiological and psychological stressors from launch and reentry, prolonged exposure to microgravity, temperature extremes, risks posed by orbital debris and micrometeorites, prepackaged food, recycled water, odors, etc.27 If you plan to work in space, you are definitely on notice that your workplace is on the frontier of both safety and exploration.
This interesting conclusion differs from how the FAA treats OSHA regulations on the ground. For the safety of the public from the launch itself, the CSLA gives the FAA authority over public safety, not worker safety. Accordingly, the FAA regulations do not apply to the safety of workers on the ground, such as those fueling a launch vehicle or testing it before flight. For them OSHA rules apply.
The authors close by recommending that the FAA’s Office of Commercial Space Transportation promote a new way of conducting space flight rather than merely copying and codifying NASA’s approach. The FAA certainly relied heavily on the public safety requirements of the U.S. Air Force when it issued its own regulations. The authors encourage a different approach for human space flight.