ELR Citation: ELR 20736
No(s). 92-3057 (11th Cir. Mar 22, 1994)

The court holds that the Occupational Safety and Health Administration (OSHA) failed to rely on substantial evidence in determining that it was technologically and economically feasible for the dry color formulator industry to meet a permissible exposure limit (PEL) of five micrograms per cubic meter for occupational exposure to cadmium, absent a separate engineering control air limit (SECAL). The court first holds that substantial evidence exists to support OSHA's decision to include cadmium pigments in the PEL. Although it is not definite that cadmium pigments are as toxic and carcinogenic as other cadmium compounds, sufficient evidence exists, at least implicitly, of the dangers of cadmium pigments and the serious potential health risks present if cadmium exposure is as great in pigment form as in other compounds. The court holds, however, that substantial evidence does not exist that it is technologically feasible for the dry color formulator industry to meet the PEL, absent a SECAL, because OSHA's grouping of the dry color formulator industry with other users of cadmium pigments and its failure to study any particular dry color formulators show that OSHA proceeded generically, rather than making the requisite specific findings for this identifiable industry segment. The court also holds that substantial evidence does not exist to support OSHA's determination that it is economically feasible for the industry to meet the PEL, absent a SECAL, because OSHA incorrectly determined the industry's prestandard exposure levels. Also, data show that the industry consists of many small concerns with minimum ability to absorb significant capital outlays, and with even less ability to spread such expenditures among its customers in the form of price increases. Additionally, there is evidence of a 35 percent decrease in the market for cadmium pigment-based colors, which will make the distribution of any capital outlays through cost increases significantly less feasible. The court remands to OSHA for a specific inquiry into the technological and economic feasibility of the dry color formulator industry's meeting the PEL and the possible need for a SECAL.

Counsel for Petitioner
Harold Fitzpatrick
1400 Plaza Dr., P.O. Box 3159, Secaucus NJ 07096
(201) 865-9100

Counsel for Respondents
Barbara Worthman
U.S. Department of Labor
Occupational Safety & Health Administration
200 Constitution Ave. NW, Rm. S4004, Washington DC 20210
(202) 219-6824

Before BIRCH, Circuit Judge, RONEY^* and CLARK, Senior Circuit Judges.