ELR Citation: ELR 21229
No(s). s. 89-7185 et al (11th Cir. Jul 7, 1992)

The court holds that the Occupational Safety and Health Administration's (OSHA's) revised air contaminants standard setting permissible workplace exposure limits (PELs) for 428 toxic substances is not supported by substantial record evidence. After passage of the Occupational Safety and Health Act of 1970 (OSH Act), OSHA promulgated start-up air contaminant standards in 1971 under §6(a) of the Act, which allowed promulgation of safety and health standards on an expedited basis without public hearing or comment. Before revising the air contaminants standard in 1989, OSHA had issued only 24 substance-specific and three generic health standards under §6(b) of the OSH Act. In this revised 1989 standard, OSHA grouped 428 substances into 18 categories according to primary health effects, including neuropathic effects, sensory irritation, and cancer. Industry and union groups challenged OSHA's use of generic findings to set PELs for 428 substances in a single rulemaking, reliance on recommendations by the American Conference of Governmental Industrial Hygienists (ACGIH), decision not to require exposure monitoring and medical surveillance, and the revised standard's four-year compliance period. The court initially finds that none of the OSH Act's procedural requirements prevent OSHA from addressing multiple substances in a single rulemaking, and in a footnote, the court declines to address the challenges to individual PELs. Turning to the merits, the court holds that the record supports OSHA's determination that the health effects from exposure to the 428 substances constitute "material impairments" under §6)b)(5) of the OSH Act, but OSHA has not sufficiently explained or supported its determination that exposure to these substances at the pre-rulemaking PELs poses a significant risk of material health impairments or that the new standard reduces that risk to the extent feasible. The court first holds that OSHA adequately supported its determination that minor irritation may become so severe as to impair functional capacity and thereby constitute a material impairment of health within the meaning of §6(b)(5) of the OSH Act, even though those effects may be transitory. The court next holds, however, that OSHA has not demonstrated how serious the risk is for any particular substance, or whether any workers will benefit from the new standard for any particular substance. If each of the 428 toxic substances had been addressed in separate rulemakings, OSHA would have been required to estimate the risk of harm for each substance. Mere conclusory statements made throughout the air contaminants standard, such as OSHA's generic finding that the new standard as a whole would prevent 55,000 occupational illnesses and 683 deaths annually, are inadequate to support a finding of significant risk of material health impairment. OSHA's discussions of individual substances generally contain no quantification or explanation of risk, and they do not indicate the level at which significant risk of harm is eliminated or reduced, even though in previous rules setting PELs for vinyl bromide and carbon tetrachloride, OSHA succeeded in determining residual risk levels. The court rejects OSHA's contention that quantitative risk analysis was impossible for this rulemaking because mathematical models like the ones developed for carcinogens do not exist for noncarcinogens. The court observes that in previous rulemakings for noncarcinogens, OSHA succeeded in determining how many workers were exposed to a particular substance and how much risk would be alleviated by a new standard. Despite the time and resource constraints of promulgating an air contaminants standard of this magnitude, the court holds that OSHA must provide an explanation or quantification for its standard to fall within a zone of reasonableness entitled to deference by the court. Similarly, although OSHA incorporated uncertainty or safety factors into many air contaminant PELs, the agency did not use a uniform safety factor or explain the method for determining the appropriate safety factor for each substance. The court observes that OSHA's limited rationale for using safety factors is akin to the "benefits are likely to be appreciable" rationale concerning OSHA's benzene standard rejected by the U.S. Supreme Court in Industrial Union Department, AFL-CIO v. American Petroleum Institute, 10 ELR 20489. The benzene decision allows OSHA to make assumptions in interpreting risk data, but if the agency is concerned that a standard should be more stringent than what the evidence supports, OSHA should use monitoring and medical testing to accumulate the additional evidence needed to support a more stringent limit. Additionally, OSHA's authority under §6(g) of the OSH Act to set priorities based on the urgency for safety and health standards does not allow OSHA to forgo detailed analysis and explanation when promulgating PELs. The court next holds that OSHA has established neither the technological nor economic feasibility of the 428 PELs in its revised air contaminants standard. OSHA organized its discussion of technological feasibility by industry sector using the standard industrial classification (SIC) groupings. The court concludes, however, that the concept of a general presumption of feasibility does not extend to OSHA's general description of how generic engineering controls might be used in a given sector. Similarly, OSHA failed to analyze all the affected industry sectors for some substances, and reliance on such tools as average cost estimates for determining economic feasibility can be misleading in assessing the impact of particular standards on individual industries. For example, OSHA took the costs of compliance with the new PEL air contaminants standard for perchloroethylene, which would be borne only by the dry cleaning industry, SIC subsector 7216, and compared those costs to the profits and sales of the entire personal services sector in SIC 72. Turning to the remaining issues, the court holds that OSHA's use of the list of ACGIH recommendations is a rational choice for limiting the total universe of substances needing regulation, because the ACGIH recommendations are well-known to the regulated community. The court concludes that OSHA is entitled to rely on the recommendations and documentation of the ACGIH, but the agency must make detailed findings based on the best available evidence. The court holds that OSHA's decision to defer issuing standards for monitoring and medical surveillance of the new PELs is a matter of regulatory priority and permissible under §6(g) of the OSH Act. Finally, the court holds that OSHA's decision to allow four years for industry to implement engineering and work practice controls, while in the interim allowing compliance through the use of respirators, is not adequately supported in the record. Unlike standards where OSHA has exercised its technology-forcing authority to require that industries develop the technology to achieve new standards, the agency based this standard on what could be achieved with standard off-the-shelf technology. The court holds that the four-year delay is not justified without adequate consideration of individual substances or the effect of the new PELs on individual industries.

Counsel for Petitioner
George H. Cohen
Bredhoff & Kaiser
1000 Connecticut Ave. NW, Ste. 1300, Washington DC 20036
(202) 833-9340

Counsel for Respondent
Barbara Worthmann
U.S. Department of Labor
200 Constitution Ave. NW, Washington DC 20210
(202) 523-6666

Before FAY and COX, Circuit Judges, and JOHNSON, Senior Circuit Judge.