Document 2q3mZ37N8NZ2mkoo5GgOjpae6

OCCUPATIONAL SAFETY & HEALTH REPORTER A weekly review of occupational safety and health developments Velumt 10, Number 6 THE BUREAU OF NATIONAL AFFAIRS, INC. July 10, 1980 U.S2euN*EMECOURT OfiOSJON IN INDUSTRIAL UNION DEPARTMENT, AFL-CtO v. AMERICAN PETROLEUM'INSTITUTE, MARSHALL v. API July 2; 1980 Part II I mportant Notice This opinion also will be printed in the next regular Decision* Supplement. Nos. 78-911 78-1039 Industrial - Union Department, AFL-CIO, ' Petitioner, 78-911, _ v, American Petroleum Institute et al. Hay Marshall, Secretary!' of ^hpr, Petitioner, On Writ of Certiorari to the United-States Court of Ap peals ft>r the Fifth Circuit. 78-1039 .. v. ... -, American Petroleum Institute et aL [July 2, 1980} ... . Syllabus The Occupational Safety and Health 'Art of 1970 fAct) detegnles broad authority to Ht Secretary of Labor (Secretary)' to promulgate .-tandurd? to ensuretitiifo and healthful working conditions for the Nation's workers (the Occti]t;iti*>iud Safely and Health AdminWtmtion (OSHA) bring the agency r^<|HXi^il*ii* for carrying out this authority), Section 3 (.S) of the Act define* no "ocriipiiriuii.il safety and limit la -lanilard" a * standard that it "rcn.-oiiahly necerenry and appropriate to provide safe and healthful cmplox tnenl." Where toxic material* or harmful physical agents arc roticertied. a standard must rImi crnnplv with fi (b)(5), which directs the Secretary to "set the standard whirli most adequately ruaires, to the extent feasible, on the btt.-ia of the best available evidence, that no employee will suffer itiatcriul inqiuirnvnt of health or functional capavily." When the tow matenal or harmful [hy-iesl Agent to be regulated is a carcinogen, the Secretary hart taken the ]>ueitii>ii rlmt no safe ex;ionre level can be determined and that 0(b)(5) require* him to set an cx|H>ure limit at the lowest Uxlinoh-tii-ally feasible level tluit will not impair the viability of itnhietrire rrguiafrd. ]n (lit* rase, after having dercmiinw] that there L a cuu-al conuuciion between benzene (a toxic aulwiimc? used in iiiaiiuf.ii-luriuc such products as motor fuels, solvents, derrr-ruts. and pc.-iicid'-) and leukemia (a cancer of the white blood rtHU). the Sccrrtny promulgated a -tand.ifd reducing I lie ijermusible cx|H>"iirr limit on airlvnu* iv-uc.ntraiHMu> of benzene from the consensus stamLrd of 10 parts benzene per miilioti iiarls of air (10 p|iui) to I |*i>i. and prohibiting dermal contact with solutions cuntaiii* ing bctizeue. On |>re-eiiforccmcnt review, ilw Court of ApjieaU held the standard invalid because it was tmml on finding* urMiji|iortfd by the administrative rvmrd. The <vhp <mnclndid tlwt OriH A had ex ceeded it standard-setting authority `-rxiisv it had not been shown that the 1 pptn vx|Nw>urn limit was "ftxiMi.^bly nvwsary or appropriate to provide safe ami lund'ldiil fiiiplm inch''' a* rrqnirid by 5 :) ($), and ihat 6 (b)(5) did not give OSHA tlic uffridlrd dis.ntioii !u ado|it sljtiderdi designed to ervute absolutely li-L-frix wurk]iiam regardless of amt. field: The judgment is affirmed. Mr. Justick Stkvbs*, joined by Mn. CtitKf Justice Buncen, Mr. Josticb Stkwskt, and Mu. .Justic* Poweu, concluded Hul the stand ard in (tuestiun is invalid. (a) The Court of Ap|>eals was correct in refusing to enforce the I ppm exposure limit on the groom! that it was not Mip|s>mri by appropriate findings. OSHAs rationale for lowering the {n-mii--iMr cxine-nre limit from 10 ]>pm to 1 ppm was based, not on any finding that leukemia lias ever been caused by exinzuire to 10 ppm of lienzixic and thaLit. will not be caused by ex|iosure to 1 pptn, but rather on a -eric- of a-suinpiions indicating that .-omc leukemia might- rreuk from rxj>w>ire to U> ppm and Hut the uimilivr of cases inight.be reduced by lowering the exjiosurc level to 1 pj**n. (b) Dy emjmwering the Secretary to promulgate standards .that are "reasonably necessary or appropriate to provide safe or healthful em ployment and places of 1`inpluyincnt" as required by d (X). rho Act implies that, before promulgating any standard, the Secretary must make a finding that the workplaces in question are not safe, link "g^tbat fcb. Qf'*`ffcSRff9k'> A workplace can hardly he considered "unsafe" unltre it threatens the workers with n signifirnnt risk of harm. Therefore, befure the Secretary can promulgate out/ permanent health or refety standard, he must make a tlirt-dioid finding that the place of employment is unsafe in the sense that significant risks are present and can be eliminated or lessened by a change in practice*. This requiremerit applies to ]iermanent standards promulgated pursuant to t)(b) (5). 3S ndl as to other tyjm of permanent standards, there being no reason why 5 "! (5>'s definition of a ntaiidard should not be 'Irv'ned incorpomted by reference into 0 (b){5). Moreover, requiring the Secretary to make a threshold finding of significant risk is cuiisistent with the scope of his regulatory ]x>wrr under (b)(5) to promulraie slandanls for "toxic cliemicaU" and "luitmjul phyaical agenu." Thu interpretation is Mnpmrted bv ntlier provi-nma of the Act, rich m I fi fe). whj-H minin'* the Secretary, in determiutnr ri-** nrioritv fur mtablhhin* xiaed*rils>. to ei^e due reeard to the unreoev %f the need for mi>dntnrv ! f*iv ml heelth etaodurds for pnrtintlnr l^Jusirie* or worknlaree. nd 5 fbWR). which requires the Secretary, when he siibetzntiillv altcre n exietinc ronseeiui* rtandard. to expkiir how the new pile will "better effectuate" the Act'- pnnxwM. (<f--ii--wwi Hi ii >nl liliiie-* 1 (d) Where the Secretary refimf nit n eiwetnl pnliry for rereinegees lht imivwuxi the hurdrti nn indu-tn- of pru*'i'*( the exisicfu-e of a Kite 1r>'d of exprettre. tlvuvtiv avniding hie thrrelioki rreiHineihititv of retal> ll-liittg the need fnr more vtringent standards, he exceeded his power. Mn. JusTtce Sncvtse. joined bv Mr. Cmir Justice Puwer and Mr. Jtnrn PtrwtKT. nlsn concluded thal: 1. The burden *** on OPHA tn show, on the b*sie of substantial pyidenee, that it is at lend more likedv than not that lonc-temi exty-nre to 10 ppm of benzene prreenle n i*i*nifirnfii riek of material healili ttu. pnirmenl, Here. OSHA did not even utlcmpt to carrv kucIi )tn)er> of proof. Impiwn* Mich a burden on OSHA will not strip it ef it- b liiv to regulate earcjnogeie*. nor will it require it tn wait fur deatlw *o wc-ur before taking any action. The requirement that a "signifi-aini" ri-k be Sacrfoet 1* Publiahgd by THE BUREAU OF NATIONAL AFFAIRS. INC.. WASHINGTON. D C 20037 MCD 000012801 162 ..OCCUPATIONAL SAFETY & HEALTH -REPOIT&R wlvv.li> T>f>t .1 mvl't-nvil'C.'l -<r:ii'irke1 : OSH\ ii i-gl f'nr*l 'o fupl'nrt it- RimIims ili.it i >i^niri<"int ri>t *11*1.* w<fh >--t* li'i-m.v-h. ii>C 'l i 'ti'ifir i<>rt.iinlv: ;ipiI the re- tint in tin* r;i*e ntKi own rii!i"?- on filler i--rri<'ni. imlir-ilt* tint t!>re ire i r ef w:ivs in wl.i.-li nH 1 n.in m;iLi* i ntinn.il judintfiit nliont the rri.ili''e Mgiiifi- r.mrr of the r-.-v.. wiili exposure lo a particular nreinogen. 2 O'H \ d -( no' tn-ilif i|\<* r*M'i<r**d fit-dira with rerpe-1 to the contii't I pi ii (!i it t I-k Im n >. "rt*:i,-utl;il>!<' nrrf.. i rv nuj a pi rypri i*e" lo r> mm e i -'euni nit i-i-V of harm from -urli rnpt.irt Sul rn h*-r .not <1 on * ! In -i- of :!n- :ih-*iliiii\ im-n-V imiI i< v t tint i! i |iptit~> to run Minima in i!i r i lie .i.-- hiiim iuii t lint not <i"lv i. Ih-|'Ji*ii- in -m.ill d >*. :i nr,-Inn- fi'i Inil il'O lliit it rin tin ali'orlnnl liirough lire -l(in in .-uflirinrt : i ....... Ill* 'n r- 11 , leenir r>V Tlir.a i *t in nf ior ;1fe not a p-upit -iih-'i'ni.- for ili.i fii,ilnigs of Mfrinfi-atit ri-k of li.irin required by fhr Art. IV Mh .ft'Tick Pomuli.. sameing tbit neither the airborne oonrenfra- tion j-tandird nor the derm.il contact standard satisfied the Act's require- mi-nt*, wnnM not huM th.il OSHA did not even attempt to crirrv its burd-n of pruaf on the* tlirr^lmlil fiieri-n whether exposure to bentene at 10 ppm pti~i.ii'* a i*riitfu'-rtit risk - Innn.iri liealrli. He cf'iiWinled lll.lt. -- *T ,Q6**.V boat mi-t be>Jie *be ArUln4iaM OSHA to drii-rmiw fhu tbe erumnui. i-fTr-u of it* standard bt*># m.-niwWe Its tk*e rxpn'ti'ri 'nrfHn A 'tainl ml ia neither ` rr:i.*riiial'lv ?n-rrv*rv" nor "fi*:iili,i\" a- n-qiiird hv tin* Art. it it rH* (nr iTf 'nfPnim nh4r ilWpfomrtMnlr t* tin* and -al^V letlilt: Hen*. iilllum-rh OSHA ilirl fieil fhal tin* ".'iih.-t.-iutiril in.K" nf (In* hiniian* n-enlaiii.111* wifi1 jn.'fifiinl, tin* rerun! rnnf-iii'? tu-i'lur :*lf(iialf i Inrimn'iil a I inn of this ronclii-inn nor ;mv eviilrcne that OPHA n.i^lnil I In* Tvli-vaiit c<si**ii.l--r:i1 i*i**< The a*<i>iv >irm>lv uniioinin rl if /iintilif of rnrt-jltslifirnlioil witliotlf l-\|il.lining rllf method by wliir-fi it di'i*rtmniil that the bemfils justified the coefa ami tlieir eroi'OMlic i-ffii't.*. Mm -TitaTto: lfrKNOt't>T ivnuhl invalidate, a constitntipg an invilid dcleentinn of legi.>lativr nnthoritv t the Secretarv, the relevant i>ortion of 5 fi fb) f5) nf tin* Act as it applies to any toxic substance or harmful phvMcnl agent for which a >afe h*vi*| U. nccording to the Secretary, iinktitiwn or oMienvi-e "itirea-iblo." In the c:i*e of such Mih-.fnncr!'. the hnBiner of fi i'bl(A) givo the Secret are aljMihitelv nu indienfion where on the confintnim of relative sifetv he .-liouhl set the standard. Nor is them finvfliin* in the teci'hitjve history, the statutory context, or sny other Miiirre tradi'ieii.iflv examined bv this Court to p*uvirte sjvcifieity to the feasibility criterion in G(bH5) Stevptns, J.. nniioiuicerl tlie judgment of the Court and delivered an opinion, in winch BtmutH. C. !.. and St>:wsht. J., joined, and in Parts T, II. 111 -- \ HI--n. III-C. and 1N-K. of wliirh Powr.Lt,. .1., joined. RtiHiiKft, C .1. filed a concurring "pinion. I'ow ki.l, .1 filed an opinion concurring m part in. I 4 on i nr ring m the jndgiiicnl. II eh J.. filed an opinion con curring in the judgment. Mshshslv J., filed a dissenting opinion, in wlikh IhiEN.vw, White, and Buckmv.v, JJ , joined. Mr. Jcstice Stev8N9 announced tlie judgment of the Court pud delivered an opinion in which The Chief Justice and Mn. Justice Stewakt join and in Parts I, II, III-A-C and E of which Mh, Justice Powell joins. The Occupational Safety and Health Act of 1970, 29 U. S. C. 651 et seq. (the Act), was enacted for the purpose of ensur ing safe and healthful working conditions for every working man and woman in the Nation. This case concerns a standard promulgated by the Secretary of Labor to regulate occupational exposure to benzene, a substance which has been shown to cause cancer at high exposure levels. The principal question is whether such a showing is a sufficient basis for a standard that places the most stringent limitation on expo sure to benzene that is technologically and economically possible. The Act delegates broad authority to the Secretary to promulgate different kinds of standards. The basic definition of on "occupational safety and health standard" is found in 3 (8), which provides: "The term 'occupational safety and health standard' means a standard which requires conditions, or the arioo- tion or use of one or more practices, means, methods, .operations, or processes, reaiu-.iably necessary' or appro priate to provide safe or healthful employment and'places of employment." 29 U. S. C. 652 ^Vhere toxic materials or harmful-physical agents are.c&ft- cerned, a standard must also comply with $6(b).<5), which provides: * .-* "The Secretary, in promulgating standards dealing' wrfh , toxic materials or harmful physical agents undeT'-'-thia subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of thCbest available evidence, that no employee will suffer-Material impairment of health or functional capacity even, if-such employee has regular exposure to the hazard dealt with..by such standard for the period of his working life. iDevelopment of standards under this subsection shall be based upon research, demonstrations, experiments, and.^auch other information as may be appropriate.- In addition to the attainment of the highest degree of heajth and safety protection for the employee, other considerations shall be the lat,est available scientific data in the held, the feasibility of the standards, and experience gained under this and other health and safety laws." 29. U. S. C. 655 (b)(5).1 Wherever the toxic material to be regulated is a cercipogen, the Secretary has taken the position that no safe .exposure level can be determined and that 5 6(b)(5) require* him to set an exposure limit at the lowest technologically feasible level that will not impair the viabdity of the industries reg ulated. In this cose, after having determined that there is a causal connection between benzeim and leukemia (a* cancer of the white blood cells), the Secretary set an exposure limit on airborne concentrations of benzene of one part benzene per million parts of air (1 ppm), regulated dermal and eye con tact with solutions containing benzene, and imposed complex monitoring and medical testing requirements on employers whose workplaces contain 0.5 ppm or more of benzene. 29 CFR 1910.1028. 43 Fed. Reg. 5918 (Feb. 10, 1978), as amended, 43 Fed. Reg. 27962 (June 27, 1978).- On pre-enforcement review pursuant to 29 U. S. Gu 655 (f), the United States Court of Appeals for the Fifth-Circuit held the regulation invalid. 581 F. 2d 493 (1978);- The court concluded that OSHA 1 had exceeded its standard-setting authority because it had not shown that the new benzene exposure limit was "reasonably necessary or appropriate to provide safe or healthful employment" as required by 3 `The second and third sentences of this section, which impose feasibility limits on the Secretary and allow him to take into account (he best avail able evidence in developing standards, may spplv to all health and safety standards. This conclusion follows if the term "subsection" used in the second sentence refers to the entire subsection 65S (h) (which sets out procedures for the adoption of all types of health and safety standards), rather than simply to the toxic materials subsection, 655 (b)(5). While Ms. Justice Makshill, post, at 7, and respondent* agree with this position, -ee Brief for Respondent?, at 39r see also Currie, "OSHA," 1978Arn. Bar Foundation IU-*ean-h J- 1107. 1137, n. 151, the Government dors not, see Brief for Federal Parties, at- 58; see nlso Berger k Riskin, "Eco nomic and Technological Feasibility in Regulating Toxic Substances under the Occupationul Safety and Health Act." 7 Ecol. L. Q. 285, 294 (1978). There i- no need for u* to decide this isaue in this case. `The Occupational Safely and Health Administration (OSHA) is the administrative agency wjihin (he Department of Labor that is mponaiblc for promulgating and enforcing standard? under the Act. In this opinion, *e refer to the "Secretary," "OSHA" and the "Agency" interchangeably. 7*10*80 Published by THE BUREAU OF NATIONAL AFFAIRS. INC.. WASHINGTON. D C 20037 MCD 000012802 CURRCNT/REPORT _______________________ _______ 163 (g)(` and because 6 (b)(5) does "not give OSHA the unbri dled discretion to adopt standards designed to create absolutely risk-free workplaces regardless of costa." 4 Reading the two provisions together, the Fifth Circuit held that the Secretary was under a duty to determine whether the benefits expected from the new standard bore & reasonable relationship to the costa' that it imposed. Id., at ov3. The court noted that OSHA had made an estimate of die costa of compliance, but that the record lacked substantial evidence of any discernible benefita.* We agree with the Fifth Circuit's holding that 13(8) requires the Secretary to find, as a threshold matter, that the toxic substance in question poses a significant health risk in the workplace and that a new, *ower standard is therefore ''reasonably necessary or appropriate to provide safe or healthful employment and place- of employment-" Unless and until such a finding is made, i:* is not necessary to address the further question whether the Court of Appeals correctly held'that there must be a reasonable correlation between costs and benefits, or whether, as the Government argues, the Sec retory1 Irthen required by G (b)(5) to promulgate & standard that goes'as fur os technologically and economically, possible to clirniftatd the risk. Because this is an unusually .Important case of first impres sion, we have reviewed the record with special care. In this opinion;, we (1) rk.-scribi.* (lie benzene xtmuforti. (2) analyze tire Agency's rationale for imposing a l ppm exposure limit, (3) dtscusa the controlling legal issues, and (4) comment briefly on the dermal contact limitation. I Benzene is a familiar and important commodity. It is a colorless, aromatic liquid that evaporates rapidly under ordinary atmospheric conditions. Approximately li billion '"The Act imposes on OSHA the obligation to enact only standard* that an; .reasonably necessary or appropriate to provide mte or healthful workplaces. If a standard docs not fit in this definition, it is not one that OSHA is authorised to enact." 581 F. 2d, at 502. * "Although 29, U. S. C. A. 035 (b)(5) requires the goal of attaining the highest degree of health and safety protection for the employee, it does not give OSHA the unbridled discretion to adopt standards designed to create absolutely risk-free workplaces regardless of cost. To the con trary, that 'section requires standards to be feasible, and it contains a cumber w pragmatic limitations in the form of specifie kinds of infor mation OSHA must consider in enacting standards dealing with tone mater-als. Theae include 'the best available evidence,' `research, demonmiiorj. -rpcnmenii, and such other information aa may be appropriate,' 'the latest available scientific data in the field,' and 'experience gained under this and other health and safety laws.' Moreover, in standards dealing with toxic materials, just aa with all other occupational safely and health standards, the conditions and other requirements imposed by the standard must be 'reasonably necessary or appropriate to provide safe or healthful employment and places of employment.' 29 U. 3. C. A. 052 (S).'' 581 F. 2d, at 502. 1 ` The lack of substantial evidence of discernible benefits is highlighted when one considers that OSHA is unable to point to any empirical evidence documenting a leukemia risk at 10 ppm even though that has been the permissible exposure limit sinre 1971. OSHA's assertion that benefits from reducing the permi.-.-ible exposure limit from 10 ppm to 1 ppm are likely to he appreciable, an assumption based only on inferences drawn from studies involving much higher exposure levels rather than on studies in volving these levels or sound statistical projections front the high-level studies, does not satisfy the reasonably necessary requirement limiting OSHA's action. Aqua Slide requires OSHA to estimate the extent of expected benefits in order (o determine whether (hose benefits hear a reasonable relationship to the standard's demonstrably high costs." ld.r at 503-504. pounds of benzene were produced in the United States in 1976. Ninety-four percent of that total was produced by the petroleum and petrochemical industries, with the remainder produced by the steel industry as a byproduct of coking operations. Benzene is used in manufacturing a variety of products including motor fuels (which may contain as much as 2% benzene), solvents, detergents, pesticides, and other organic chemicals. 43 Fed. Reg., at 5918. The entire population of the United States is exposed to small quantities of benzene, ranging from a few parts per billion to 0.5 ppm, in the ambient air. Tr. 1030-1032. Over one million workers are subject to additional low-level ex posures as a consequence of their employment. The majority of these employees work in gasoline service stations, benzene production (petroleum refineries and coking operations), chemical processing, benzene transportation, rubber manu facturing and laboratory operation'.* Benzene is a toxic substanc- Although it could con ceivably cause harm to a person v.i.o swallowed or touched it, the principal risk of harm comes trom inhalation of benzene vapors. When these vapors are inhaled, the benzene diffuses through the lungs and is quickly absorbed into the blood. Exposure to high concentrations produces an almost immediate effect on the central nervous system. Inhalation of concen trations of 20.G00 ppni can be fal-` within minutes; exposures in the range of 250 to 500 ppm cm. cause vertigo, nausea, and other symptoms of mild poisoninz. 43 Fed. Reg., at 5921. Persistent exposures at levels alm-c 25--10 ppm may lead to blond deficiencies and disease* nf tiie bloml-fortning organs, including aplastic anemia, which l- generally fatal. Industrial health experts have long been aware that ex posure to benzene may lead to various types of nonmafignant diseases. By 1948 the evidence connecting high levels of benzene to serious blood disorders had become so strong that the Commonwealth of Massachusetts imposed a 35 ppm lim itation on workplaces within its jurisdiction. In 1969 the American National Standards Institute adopted a national OSHA's figures indicate that 795,000 service station employees have aoaie heightened exposure to benteoe as a result of their employment. See Economic Impart Statement, Vnl. II, D-7 (May, 1977). These em ployees are specifically excluded from the regulation at issue in this ease. See ui/ra, at 17. USHA stair* ih;r anotlnr u-J.Oi'O iniplovti^, who ;*re covered by the regulation, work in the other uuluMrire described. 1,3 Fed Reg., at 5935. It is not clear from the record or its explanation of the permanent standard how OSHA arrived at the estimate oT 029,(<00 exposed employ res. OSHA's consultant, Arthur D. Little Comjwny, estimated that there were 191.000 exposed employees, 30,000 of whom wi re exposed to 1 ppm or more of benzene. Economic Induct Statement, Vol. I, 7-1 In its ex planation of the permanent standard OSHA stated that there were 1,140 exposed employees who worked ui benunc plants, 9*,OCO m other petro leum refineries, 24,000 in coke n*ew, 4,000 in lijrht oii plants, 2.7G0 in the petrochemical industry, 52,345 who worked in bulk terminals, 23,171 drivers who loaded benzene from those terminals, 74,000 m oil and g.is production, 17.000 in pipeline work, 100 at tank car facilities, 200 at tank trunk facili ties, 480 on bargee, 11,400 in tipi-manufacturing plants, and 11,050 in other types of rubber production. 43 Fed. Re*, at 5935-5038 Although OSHA gave no estimate for laboratory workers, the A. D. Little study indicated that there were 25,000 exposed workers in that industry Tl>-* figures add up to 347,246 exposed employe**,--approximately 252,000 le** than the overall estimate of 029,000. It is possible that some or all of these employees work in the "other industries" briefly ur.-mbed in OSHA's explanation; there arc primarily small firms that manufacture .nlhrjives, paint and ink or that u-e benzene solvents. 43 Fed Re;;., at 5919 No estimate of the number of exposed employee* in those industries or the aggregate cost of compliance by those industries is given either by OSHA or by A. D. Little in its consulting report. 7-10*80 Published by THE BUREAU OF NATIONAL AFFAIRS. INC.. WASHINGTON. O C 20037 mod oooo 12*0,3 164 OCCUPATIONAL SAFETY & HEALTH RfeWfrTER consensus standard of 10 j-prn avoraaed over an eight-hour period with a cetlirs concfn'-ratton of 25 ppm for 10-minute prnerb or a maximum peak concentration of 50 ppin. 43 Fed Reg., at 5919. In 1071. after the Occupational Health and Safety Act u passed, the Secretary adopted this con sensus standard as the federal standard, pursuant to 29 U. S. C. 655 fa).' As early as 1928. some health experts theorized that there might also be a connection between benzene in the workplace and leukemia.1 Tn the late I960': and early 1970's a number of epidemiological studies were published indicating that workers exposed to high concentr.?'ion3 of benzene were sub ject to a significantly increased r;-'- of leukemia.' In a 1974 report recommending a permanent standard for benzene, the National Institute of Occupational Health and Safety (NIOSH), OSHA'3 research arm,1" noted that these studies raised the "distinct possibility" that benzene canned leuke mia. But, in light of the fact that all known ca.-es had occurred at very high exposure levels, NIOSH declined to recommend a change in the 10 pnin standard, which it con sidered sufficient to protect against nonmal.gaunt diseases. NIOSH suggested that further studies were necessary to 1 So-* ion Cm) of th Art, 25 U. S. C. 05-" (;i), provides that "Without r*ezrd to chapter 5 of Title 5 or to the other iO.bscctinns of this section, the Secretary ?hill, as soon as practicable daring the period beginning with the effective rl.Ue of this chapter and ending two years after such date, by rule promulgate as an occupational safety or health standard any nnttonil consensus standard, and any established Federal standard, unless he determines that th promulgation of such a standard would not result in improved safety or health for specifically designated employees. In the event of conflict among any st.md.nds, the Secretary shall promul gate the standard which assures the greatest protection of the safety or heulrh of the affected employees." In this case the Secretary complied with rhis directive to choose the most protecfiie standard by selecting Hie ANST standard of 10 ppm, rather than the 25 ppm standard adopted by the American Conference of Gov ernment Ind'i.-tnal ihgienuts. 43 Fed Reg. at 59l'J. Fee D^lorr ft IWpnrn.ino, "Leuremie anrue an fours de I'intoxirnticm bemeniciue. 5ur I'origine tgxirjue tie certaines leuccmies aiguee ct leura relations avee les enemies grAves," 9 -f. Med. Lyon 227 (192S). A transla tion of that document appears in the benzene administrative record. VoI II, !'\ 2'-s> Pm- d-o Ihirmr. tlnoiiu- l'\|^-un- lo ltoi*i-ne (Ben zol) !I The Clinical Efforts." 21 J Ind. k Tovieol. .111 (1939), Vol. II, Ex. 2-74, which refers to ' leucemia" as a side effect of chronic exposure to benrene. * Dr. Muznffer Aksoy, a Tiirki-h physirian who (edified at the hearing on the proposed benzene standard, did a number of studies concerning the effects of benzene exposure on Turkish shoemakers. The workers in Dr Aksoy's studies used solvents containing large percentages of benzene and were constantly exposed to high concentrations of bentene vapors (between 150 and 650 ppm) under puorlv ventilated end generally unhvgicnic condition*. See Aktoy, "Anile Leukemia Due to Chronic Exposure to Benzene," 52 Am. J. of Medicine 160 (1972), Vol. f. Ex. 2-29; Aksoy. "D-nzene (Benzol!: Its Toxicity and Effects on the Hematopoietic System'' (Monograph) (l'VO), Veil. It, Ex 2-55; Aksoy, "Leukemia in Shoe-'V rkers Exposed Chronically to Benzene," 44 Blood S37 (1974), Vol II, Ex. 2-51 (reporting <m 26 -hnrwnrkers whu had contracted leuke mia from 1267 to 1073- this represented an incidence of 11 per 100,(W0 ether than the 6 cases per 101,000 that would normally be expected). Dr Enrico Viglrani also repurted an c.xce?s number of leukemia cases nniong Italian shovfnakers cxpo.'-sl tn glues emit.lining n high percentage of benzene and workers in rotogra' ure pl.uits who had been exposed over tang period* rf time to inks and <`>lviiit.s mntaiuing a much *a G0% ben zene. See Vigliani, "Benzene A fenk-uma." 1004 N-w Fng. J. of Medicine 372-576, Vol I, Ex. 2-27; Furni .k Vigliani, 'fln-mical Leukemogrncsis in Man," 7 $*r. Haemat 211 (1071), Vnl. II, Ex. 2-60. "20 V. S. C. J649 (a)(1) requires HEW to develop "criteria" dealing with toxic materials and harmful physical agents that describe "exposure levels that are safe for various periods of employment." TTEW's obliga tions under this section have been delegated to NIOSH. 29 U S. C. 671. detc-rmup eonchsively v.li?:her there urns a h,ik between h-r.zen? and leukemia at:d. if so, what exposure levels were dangerous.'* Between 1974 and 1975 additional studies were published which tended to confirm the view that benzene can cause leukemia, at least when exposure levels are high.** In an August 1976 revision of Us earlier recommendation. NIOSH slated that these studies provided ``conclusive1 proof of a causal connection between benzene and leukemia. . Vol T, Ex. 2-5. Although it Acknowledged that none of the inter vening studies had provided the dose-response data it had found lacking two years earlier, id., at 9. NT03H neverthe less recommended that the exposure limit be set as low aa possible. As a result of this recommendation, OSHA con tracted with a consulting firm to do a study on the costs to industry of complying with the 10 ppm standard then in effect or, alternatively, with whatever standard would be the lowest feasible. Tr. 50S-506. In October 1976 NIOSH sent another memorandum to OSHA, seeking acceleration of the rulemaking process and "strongly" recommending the issuance of an emergent tem porary standard pursuant to 29 U. 3. C. 5 6.5.5 (c) ,J for zene and two other chemicals believed to be carcinogens. "See Criteria for a Recommended Stanuard.'O'f-vcatioru! Exonsure-to Benzen* i4--75, Vol. I, Ex. 2-3. In rosponj* to a lett-r from the Oirectsr of the Offire of Standards Divi.-ion, NIOSH that its JU ppm stu.d- ird was designed to protect against leukemia, us well as other health rjki NIOSH noted, however, that further research waa accessary in order 'o establish adequate doi^esponie data for benzene and ieukemia. Vol. XII Ex. 32a. 32B. l*Ak*oy published another study in 1978 roporin* on an addu^r <! e-ght leukemia cases uncovered after 1973. In that article, he also r-w*d that a 1969 ban on the use of benzene es a solvent had led to 1 d-;- in the number of reported leukemia cases betinning in 1974. Akwv "Types of Leukemia in Chronic Benzene Poisoning,"55 Acta Haemaro r 65 (1976), Vol. I, Ex. 2-30. Vigliani also noted a decline in leuk--- * cases in Italy after benzene was no longer used in glue* and inki Vigliani dr Forni, "Benzene and Leukemia," It Environmental Re* 1.2 (1976), Vol. I, Ex. 2-t5; Vigliani, "Leukemia Associated with Bert*-* Exposure," 271 Annals N. Y. Acad, of Sciences 143 (1979), Vol. il. E* 2-49. In the latter study Vigliani noted that in the past 100% pure ** zene solvents had been used and workers had been exposed on a basis to concentrations of 200-500 ppm. with peaks of up to'1500 rpci A number of epidemiological studies were also done among Ame<* rubber workers during this period. Dr. A. J. McMichaei's studies cated a nine-fold increase in the risk of contracting leukemia among * > < ers who were heavily exposed in the 1940's and 1950's to pure benz*n ,..* as a solvent. McMichael, "Solvent Exposure and Leukemia Among R*;,re work*rs: An Epidemiologie Study," 17 J of Occup. Med. 21* . ' (1975), Vol. II, Ex. 2-37. See ilea Andjelkovic, Taulbee <fc Symons. \ telity Experience of a Cohort of Rubber Workers. 1964-1973," 13 J Occup. Med. 367 (1976), Vol. II, Ex. 2-57 (slso indicating an e* * mortality rare from leukemia among rubber workers). ** Section 655(c) provides: "(1) The Secretary shall provide, without regard to the rryiirm-- chapter 5 of title 5, for an em*'gncy temporary st.irtrl.ird to take diate effect upon publication in the Federal Rccister if he di--- -(A) that employees are exposed to grave rianerr from exposure > stances or agents determined to be toxic or phvicaiiy harmful -* new hazards, and (B) that ?urh emergency standard is necessary i tert employees from such dinger. "(2) ?uch standard shall be effective until superseded bv ,1 ?**- promiils.ired in accordance wuh the procedures preerribed in p>*- (1) of this subsection. "(3) Upon publication of s*u*h standard in the Fed-ral Rej. Secretirv hall commence a pnvetdin* in acconf.ince with *ubi- of this fCction, and the standard as published shall .il*o serve * posed fix for the proceeding. The Secretary shall promulgate a under his paragraph no later than six month* after publication " emergency standard as provj-fed in paragraph (2) of this subaw--- 7-10-80 Published by THE BUREAU OF NATIONAL AFFAIRS. INC.. WASHINGTON. DC 20037 000012 804 HOP CURRENT REPORT 165 NIC5H recommended tu.u a. 1 ppm exposure limit te :mposL'ci for benzene" Vo!. I. E::. 2-G. Apparently beca-ad of the NIOSH recommendation, 1 .? 11A risked its consultant to determine the cost of comply u-i* uith a 1 ppm stnndarr! instead of with the `'minimum f`......ble" strmde.rd. Tr. jfiH507. It nbo issued voluntary gu r.:ries for benzene, recoinmM-ding that exposure levels be limited to l PPm 0,1 an 8-hour time-ueighted average Fasia \vhi.r?vrr possible. \ cl. II, Ex 2-44. In the spring of 1075 NIOSH had selected two Pliofilm plants in St. Marys and Akron, Ohio, for an epidemiological ?tud7 of the link between I* :kemii ami benzene exposure. In April, 1077 NIOSH forwarded an interim report to OSHA indicating at least a five-fold increase in the expected inci dence of leukemia for workers who had been exposed to ben zene "at the two plants from 1940 to 1949." The report sub mitted to CSHA erroneously suggested that exposures in the two plants had generally been between zero and 15 ppm dur ing the period in question.1'' As a result of this new evidence and the continued prodding of NIOSH, Vol. I, Ex. 2-7, OSHA "At the hearing on the permanent standard NK'SH representatives testified that they had selected 1 ppm iuiti.nilv in connection with the issuance of a propoi'-d standard for vinyl chloride. In that proceeding they had discovered that 1 ppm was approximately the lowet level detect able through the use of relatively iinsophisticatcd monitoring instruments. Wuh respect to benzene. they tl-o thought that I ppm was an appropriate standard berause any lower standard might require the elimination of the small amounts of benzene (in some places up to 0 > ppm) that are nor mally present in the atmosphere. Tr 11413-1143 NIOSH's recom mendation was not based on any evaluation of the feasibility, cither tech nological or economic, of eliminating all exposures above l ppm. Tr. 1156. "Seven fatalities from leukemia were ch-rovert-d out of the 74-1 worker? surveyor!. However, Dr. Infante, who conducted the study, stated that his statistical techniques had probably undcref imated the number of leukemia iwes that lurt actually occurred. Tr 7)7. The normal expected inridence of leukemia in such a population would be 1.4. Vol. 11, Ex. 2-51, at 6. "'The authors' statement with respect to expo-ure level? u-as based on o 1946 report by the Ohio Indu.-irtal O'omnii.^ion indicating that, after some new ventilation equipment had been installed, exposures at the St. Mary1* plant had been brought within "safe'' limbs, in most instances ranging from zero to 10 to 15 ppm. Vn] 11, Kx 2-51, at 3. As the authors later admitted, tin* level considered "safe" in 1948 was 100 ppm. Tr S14-SI5. Maremer, only one of tin- "even worker? who died of feuke- rnta had begun working at Sr. Mary's niter 1946. Five of the others had worked af "he Vkron plant, which employed 3lb of the 748 worker? stir- -.v-a. Tr. 2;.T7-2au'4. A iflIS report by the same Commission indicated -.rn-,i:- If. e.? at Akron plant of well over lOO ppm, with excursions o =n--:r ..reaj u-> f 1000 ppm. Vol XVII, Ex. 54A (App, A, Attach F). 5v--e\? *aker :n the intervening years, as well as testimony by St. Mary's emp'o-.-ees at the hearing on the proposed standard. Tr 3432-3437, indi* ra'-d mat both of the plants may have had relatively high exposures through the 1970's. Industry representatives argued at the hearing that this evidence indi cated that the expo<ur levels had been very high, as they had been in the other epidemmfncicnf tndir? conducted in the ra*t. See API (toet-hearing brief, Vol XXXI, Ex 217-33. at 23-37. NIOSH witnesses, however, sim ply sta'ed that actual exposure levels for the years in question could not be determined: they did agree, however, that their study should not be taken a? proof of a five-fold increase in leukemia risk at 10-15 ppm. Tr. 614-515 In it? explanation of the permanent standard, OFHA agreed wvh the NIO?H wirneste? that no dose-re?p''n.-e relationship could be inferred from the study: `'Comment? at the hearieg demonstrated that here were area exposure* durug thi,- studv period exceeding th-sp level? f 10--15 ppml. at times reaching i.iluw of hundreds of parts per million. Pince no pe*aotal moni toring 'lata are available, any conclusion regarding the actual individual fimc-we'gJilcd average exposure i? speculative. tWv.ise 0f (he lack of definitive exposure ihva. 08H.\ cannot <|*rivr .uiv ronrl<L-i>n brking th" excess leukemia risk with any specific iwporim- lea-4." 43 red. Reg, at 5972. did issue an emergency standard elective May 21. I'j77, reducing the benzene exposure liirii from 10 ppm to 1 ppro, the ceiling for exposures of up to '0 minutes from 25 pprn to 5 ppm, and eliminating the authority for peak concentra tions of 59 ppm. 42 Feci Reg. 22718 (May 3, 1977). In it? explanation accompanying the vi tqr^cncy standard, OSHA 'tntc'l trmt Icn/ftic had Nun sit own to causr; Itt.kcuna at exposures below bo ppm and that, in light of itn consultants report, it was fca?:h;e to rc'luce tb-- exposure bunt to l i>pPa. 42 Fed Reg. at 22517, 22521. On May 19, 1977, the Court of Appeals for the Fifth Cir cuit entered r. temporary restrain mg erd^r preventing the emergency standard from taking "ITcct. Thereafter, OSHA abandoned its efforts to make the emergency standard cfT-ic.- live and instead Issued a proposal for a permanent standard patterned almost entirely .after the aborted emergency stand ard. 42 Fed. Reg. 27452 (May 27. 1977). In its published statement giving notice of the proposed permanent standard, OSHA did not ask for comments as to whether or rot benzene presented a significant health risk at exposures of 10 ppm or les. Rather, it asked for comments as to whether 1 ppm was the minimum feasible exposure limit." 42 Fed. Reg., at 27452. As OSHA's Deputy Director of Health Standards, Grover Wrenn, testifier! at the hear ing, this formulation of the issue to be considered by the Agency was consistent with OSHA's general policy with re spect to carcinogens.'1 Whenever a carcinogen is involved, OSHA will presume that no safe level of exposure exists in the absence of clear proof establishing such a level and will accordingly set the exposure limit at the lowest level feasi ble.1* The proposed I ppm exposure limit in this case thus was established not on the basr of a proven hazard at 10 ppm, but rather on the basis of "OSHA's best judgment at ,r OSHA also sought public comment a? to '.vhe'her certain imlu-siries should be exempt from compliance, whether ;r.e proposed compliance pro cedures and labeling technique* were adequj r. whit the environmental ant! economic consequences of the regulation wouM be. and whether it was feasible to replace benzene in solvents and other products of winch it con stituted more 'han 1%. `It became --lenr at the hearing that OSHA had not promulgated the proposed standard in response to any new concern about the nnnmallgnnut effevis of low-level benzene expn*ure. See Tr. 128-127: "Is it accurate to say that the reason why the--why OSHA has pro posed to reduce the exposure limits in the standard below the current levels is because of a perceived risk of leukemia, and nut because of any new evidence it has received that the current standard? are inadequate to protect against acute or chronic benzene toxicity, other than leukemia? "MR. WRENN: I think I will simply refer the part of mv statement you were referring to, in which it says, it is however benzene's leukemogtnirily which is of greater concern to OSHA. That is certainly the central i**ue within the 1-TS frmefgrnry 1eni|X>r:ry ?tiuul;ird| and the proposed standard." Mr. Wrenn testified that: ". . . The proposed standard requires that employee exposure to benzene in air be reduced to one part per million, with a five' part per million ceiling allowable over any fifteen minute period during an eight hour work shift, and prohibits eye or prolonged ekin contart with liquid benzene. "This airborne exposure limit is based on OSHA's established regulatory poliey, that in the absence of a demonstrated safe level, or u no effect level for a carcinogen, it will be assumed Ihut none exist, anti that the agency will attempt to limit employee exposure to the lowest level feasible." Tr. 20-10, See also: "MR. WARREN: Mr. Wrenn, in promulgating the emergency tem porary, and proposed permanent, benzene standards, OSHA relies heavily, and I am quoting from your testimony now, on the regulatory policy that 7-1080 Published by THE BUREAU OF NATIONAL AFFAIRS. INC . WASHINGTON. DC 20037 MCD 000012805 166 OCCUPATIONAL SAFETY & HEALTH REPORTER the time of the proposal of the f. liability of compliance with the proposed standard by the utTected induatriej." Tr. 30. Given OSHA's cancer policy, it wa3 in fact irrelevant whether there was any evidence ut all of a leukemia riak at 10 ppm. The important point was that there wa3 no evi dence that there unj nnf some lisk, however small, at that level. The Tact that OSHA d.d not ask for comments on whether there was a safe level :: exposure for benzene was indicative of its further view that a demonstration of such absolute safety simply could no: be made.** Public hearings were held on the proposed standard, com mencing on July 13, 1077. The final standard waa issued on February 10, 1073. 43 Fed. Keg. 5913." In its final form, the benzene standard is designed to protect workers from whatever hazards are associated with low-level benzene expo sures by requiting employers to monitor workplaces to deter mine the level of exposure, to provide medical examinations when the level rises above 0.5 ppm, and to institute whatever engineering or other controls are necessary to keep exposures at or below I ppm. In the standard as originally proposed by OSHA, the em ployer's duty to monitor, keep records and provide medical examinations arose whenever any benzene was present in a workplace covered by the rule.11 Because benzene is omuipre- there is no safe level for carcinogens at any--tor any exposed population, and the fact that leukemia, and a leukemogen la a carcinogen, u that lorrect ? ` MR. WnKNJT: I believe that I stated that rlightly differently in my ora! .summary of the statement than it is stated in the statement itself. I said that, in the absence of a known or demonstrated safe level or no effect lev-1, our policy m tu assume that none exists, and to regulate accordingly." Tr. 4fi--19. "MR. WRENM: I would prefer to state it as I have on couple of occasions already this morning, and that in the absence of a demon strated safe level of expo-inn*, we w.II assume that none exists for the pur pose of regulatory policy." Tr. 50, 'In answer to the question of what demonstration would suffice to estiuh-c. a "safe level," Mr. Wrenn stated' "I would like to draw a distinction, however, between what I have referred to as t h- demonstration that a safe level exists, and speculation or elaborate theories that one may make, and I think that the agency in its history and very likely its foluie regulatory policy, would, in the fae* of evidence demonstrating that a carcinogenic hazard does exist or did exist, in this particular set of nrcumtt.xncts, would be very reluctant to accept as tho basis for its regulatory decisions, a theoretical argument that a safe level may, in fact, exist for a pai ticular sub-Mante" Tr. 51-82. A NMOSH tej-rciwiijti ve who testified later put it more succinctly, stating that . . if benzene causes leukemia and if leukemia is a cancer, then exposure is almost moot." Tr. 1007. 11 An amendment to the standard was promulgated on June 27, 1973. <3 Fed Reg 27962 See n. 22, ir/ca. "Apart from it* exclusion of gasoline storage and distribution facilities (.in exchu-ton retained m the final rule, sec text, at n. 25, mfra), the pro posed rule also excluded from coverage work operations in which liquid mixtures containing one percent or less benzene were used. After a year this exclusion was to be narrowed to operations where 0.1% bentene solutions were used. The rauon.de for the exclusion was that airborne expesures from such liquids would generally be within the 1 ppm limit. However, testimony at the hearing on the prn|H>sed rule indicated that there w.xs no "consistent predictable relationship" between benaene con tent in .a liquid and the resulting airborne exposure. Therefore, OSHA abandoned the idv.i of a percentage exclusion for liquid benzene in Its final -taud.irci. 4.? Fori. IJtg. at 5042. OSHA later reconsidered its position and, in n amendment to the permanent standard, reinstated -m exclusion fur liquids, setting the level at 0 5%. to be reduced to 0 1% after three years, 43 Fed. Reg. 27563 (June 27, 1973). dent in small quantities, NT05H run] th" President's Counc.l on Waco and Price Stability r-"-'mir.eiuled the '.lie of an "action level" to trigger "ig and medical examina tion requirements. Tr. 1030-ir:'2; Vol. XIV, Ox. 41-23 OSHA accepted this recommendLiion, providing under the final standard that, if initial tnomiuring discloses benzene con centrations below 0.5 ppm averaged over an eight-hour work day, no further action is required unless there is a. change in the company's practices." If exposures are above the action li`\-'l but b"low tin- I I'pri > N|'(i'iii'C Hunt, riiij'lover? nr? required to monitor exposure levels on r. quarterly bass and to provide semiannual medical examinations for llieir exposed rmploveeM. Neither the concept of an action level, nor the specific level selected by O^HA, is challenged in this proceeding. Whenever Initial monitoring indicates that employees are suhject to airborne concentration' of benzene above I ppm averaged over an eight-hour workday, with a ceiling of n ppm for any 15-minute period, employers are required to modify their plants or institute work practice controls to reduce ex posures within permissible limits. Consistent with OSHA's general policy, the regulation does not allow respirators to be used if engineering modifications are technologically feasible.*1' F.mployers in this category are also required to porfoun monthly monitoring so long as their workplaces remain above 1 ppm, provide semiannual medical examinations to exposed workers,, post signs in and restrict access to "regulated areas" where the permissible exposure limit is exceeded, ar.d conduct emnloyee training programs where necessary. The standard also places strict limits on exposure to liquid benzene. As originally framed, the standard totally prohib ited any skin or eye Contact with any liquid containing any benzene. Ultimately, after the standard was challenged, OSHA modified this prohibition by excluding liquids contain ing less than 0.55> benzene. After three years, that exclusion will be narrowed to liquids containing less than (1.1% benzene. The permanent standard is expressly inapplicable to the storage, transportation, distribution, sale or use of gasoline or other fuels subsequent to discharge from bulk terminals." The exemption from the monitoring and medical testing portions of the standard for workplaces with benzene exposure levels below P.5 ppm was not predicated on any finding that regulation of such workpLiea was n.t feasible. OSHA* con-uli.itii, Arthur O Little LV, ruin'liulcd that I ppm was a feasible exposiue limit eon untuning tlmt there wjj no action level (or, to put it another way, assuming Unit the action lev*! was z:ro). Rather, it was, as S'I03H witnesses stated, a practical decision based on a determ.nation that, where benzene exposure* are below 05 ppm, they will be unlikely ever to rie above the permissible exposure level of 1 ppa. N103H was also concerned that, in the absence of an actioo level, employers who used sophisticated analytical equipment might be required to monitor and provide medical examinations simply because of the presence of benzene in the ambient air. Tr. U)3<M(Ki2, I l'13-l 134. * Indeed, in its explanation of the standard OSTIA states that an emp'eycr is required to institute engineering controls (for example, in stalling new ventilation hoods) even if those controls are insufficient, bv themselves, to achieve compliance and respirators must therefore be used as well. 4.1 Fed. Reg., at 5952. OSHA's prefrn-m*e for engineering modi fications is based on its opinion that respirators are rarrtv used proper!*- (because thev are uncomfortable, are often not properly fined, etc.) and therefore cannot be considered adequate protective measures. ** It is also inapplicable to work operations involving 0.5% liquid benzene (0.1% after three years), see n. 22. and to the handling of benzene in sealed containers or systems, except insofar as rmplnyers are required to provide cautionary notices and appropriate employee training. 7-10*80 Published by THE BUREAU OF NATIONAL AFFAIRS. INC. WASHINGTON. DC 20037 MCD 000012306 CURRENT REPORT "iim exception is particularly ii?ni5cart :n ligbt of the fact :hat over 795.CCG gas station rnp!cye*;;, a.-ho are exposed to an average oi 102,700 gallons of gasoline (containing op to 27c benzene) annually, are thus excluded from the protection of the standard.11 As presently formulated, the benzene standard is an expen sive wny of troviding some adJitiun.il protection for a rela tively small number of employees. According to OaH.Vs ngur-!, the standard will require capital investments in engi neering controls of approximately $2613 million, first-year operating costs (tor monitoring, medical testing, employee training and respirators) of 31S7 million to S205 million and rvcurrr.g annua! costa of 3ppru\inu!dy $34 million.,r 43 Fed. Rug., at 3034. Tim figures outlined in OSTfA's explanation of the cos* of compliance to various industries indicate that only 33,COO employees would gain any hen-fit from the regulation in terms of a i eduction in their exposure to benzene.** Over two-thirds of these workers (24 450) are employed in the rub ber manufacturing industry. Compliance costs in that indus try are estimated to he rather lo" with no capital custs and initial operating expenses cstimab-9 at only S.34 million ($1350 per employee); recurring annual .osts would also be rather low, totalling less than SI million. By contra.?!, the segment of the petroleum refining industry that produces benzene would be required to incur S24 million ia capital costa and 5600,000 in first-year operating expenses to provide additional protec tion for 300 workers (S82,000 per employee), while the petro chemical industry would be required to incur 520 9 million in capital costs and SI million in initial operating expenses for the benefit of 552 employees (539,673 per employee).*'* 43 Fed Reg., at .3936-5938. Although OSHA did not quantify the benefits to each category of worker in terms of decreased exposure to benzene, it appears from the economic impact study done at OSHA'a 14 Prior to the introduction of the action level concept, A. D. Little eimated rh.r rympli.iure co-tj fnr 'he >-rvire station industry might be as high as $4 billion. Tr. o0a-5d9 Moreover, ,V D. Little's Economic Impact Statement indicated that service s'ation employer.* were generally exposed to wry low level* of bent>m<. Vol. I, at 4-21. St'll, in its exphmaport arrompaming the permanent standard OSHA did not rule out regulation of this industry entirely, stating that it was in the i>roee?s of studying whether and to what extent it should regulate exposures to gasoline in general. 43 Fed. R-g, at 59->3. OSHA's estimate of recurring annual coats was based on the assump tion that the exposure levels it had projected would be confirmed by initial monitoring and that, after the first year, engineering controls would be successful in bringing tnort exposures within the 1 ppm limit. Under these circumstances, the need for monitoring, medical examinations and respira tors would, of course, be drastically reduced. ** Three hundred of tin's* employees work in benzene plants, 5,000 in other petroleum refineries, 4,000 io light oil plants, 552 in the petro chemical industry, I5fi in beniene transportation, 1250 in laboratories, 11.too in tire-manufariiiring plants and 13,050 in other nibber-manufac"ir:ae plants OSHA also estimated that another 1&.216 workers (5.000 r-rT-->:rr refineries. 1,104 in the petrochemical industry, 7,300 in bulk v ...:\i.<, 2'2 :n tynxem- transportation and 2,500 in laboratories) would b<- d *j u ? rr> 1 ppin of benjene and thus woutd receive a benefit n *-rrc.. oT more ccunprciicnuve medical examiiutiona. 43 Fed. Reg., St y" :* Th- high ccisi per employee in the latter two industries U attributable to OSH.Vs policy of requiring engineering controls rather than allowing respirators to be u!ed to reduce exposures to.the permissible limit. The relatively low estimated cost per employee in the rubber industry is ba.`ed on OSHA's assumption that other solvents and adhesives can b* substituted for those that contain beniene and that capital costs wjjr therefore Dot be required. 167 direction that those benefits may be relatively jn-.atl. Thus, although the current exposure limit is 10 ppm, the rictuaj exposures outlined in that study are often condcleraclv lower. For example, for the period 1970-1975 the petro chemical industry reported that, out of a total of 496 em ployees exposed to benzene, only 53 were exposed to le*. els between 1 and 5 ppm and only ?ev.-n (ad at the same plant) were exposed to between 5 and It: ppm. Economic Impact Study, Vol. r, table 4.2. See a!;:o tables 4.3--4.3 (indicating sample exposure levels in various industries). II The critical issue at this point in the litigation is whether the Court of Appeals was correct in refusing to enforce the 1 ppm exposure limit, on the ground that it was not supported by appropriate findings." Any (lis'U'--i<ni of tb" 1 ppm cxp'>?uf limi* of --'ur-e, begin with the \i;eur;, \ ratmi :i!<" 9>r ii"i-"'ing thel 1 Tie- written explanation of the stand,md fib- 1^4 |.,t2e- of tr print' 11 apnembx'. Much of it i> devoted ir, a d:scu-->irin d r!sC voluminous evidence of the adverse effects of expos' rn to benzene at Icvd- of concentration w.dl above 10 ppm. This discussion demonstrates that there is ample justification fur regulating occupational exposure to bpnzene am] that the prior limit of 19 ppm, with a ccihrq of 25 ppm for a peak of 59 ppm) was reasonable. It do :s ' ot, however, provide direct support for the Agency's coi.clusi. that the limit should be reduced from 10 ppm to 1 ppm. The evidence in the administrative record of adverse effects of benzene exposure at 10 ppm is sketchy at best. 0>li\ noted that there was "no dispute" that certain nonmal.g-out blood disorders, evidenced by a reduction in the lev el of r I or white cells or platelets in the blood, could result exposures of 23-40 ppm. It then stated that several -t . had indicated that relatively slight changes in normal values could result from exposures below 25 ppm and -** haps below 10 ppm. 0?HA did not attempt to mak* i . estimate based on these studies of how significant tb* r * of nnumalignnut disease would be at exposures of 19 or less.** Rather, it stated thnt because of the lack r.f ' concerning the linkage between low.level exposures n< I ` abnormalities, it was imnnssible tn construct a do;e-r* 'The other i?Mir before a* is whether the Court of Appeals -- refused to enforce the dermal contact ban. That issue i* d*- i Part IV, infrj. In tlie ernrt helow n-pomh-il:. n'so rhMIorsed the moni-- medical teslirg requirements, arguing that certain industries sh- ' * * ben totally exempt from them and that, as to other irulw................ Agency had not. demonrtrned th.it all the reqnircm-nts -.vc r- - neee-j.ary to ensure worker health .ami safety. They uLo . OSHA's requirement that the pernri*uhte exposure limit be i- engireerii'g crnrrHs rather than through re-ihrnturs was ro' neeea*ary tinder the Act. Reeatise it inx nlMl.at -d the 1 ppm - limit, the Fif'h Cifuif had no occasion ty deal with these i-*u-- are not now before this Court. J` A.* we Iwtf oJ'tcii livid, rlir valulity of an agvnry's determ be jiulgial on tin* ha-i* of the iwnrv'- jt.iivd re.i-'ni* for m determination. 5kv SRC v. Chrmri/ Corft. ;; l S U. S. SO, 0^ . miuUtpilive order eaunot be uplivid mile-? the grouii'1- u|->-. .agemy aeteil in exerriMiig iti power? were tlmw upon win * ran be emtained"); FPC v. Texaco. lc., 417 U. S. 3AO, 7* Sperry <t //utc/ujp Co., 405 U. 3. 233. 249. * As OfiHA ii*elf notetl, nim blond ahi'ormiditii** eait.-4 *. expesure mov not have any diaeerr.ihle health rffeet*. wh *+ lead to -i'-iuftcaiit unpin mint and even ihailli. 43 Ki-l 11 - 7-1080 Published by THE BUREAU OF NATIONAL AFFAIRS, INC , WASHINCTCN. DC 20037 MCO 000012807 168 curve jt thi7* tirnn." O-HA A-i : r.i.11.rjo however that the flfiTHf'ctratv'l that the 'urrvit 10 ;.ptn -`xii'tyum limit nas in.vlequ.Ge to f'lFiire that no uorkrr uoiih! s'-ftT u nonms';J"i:H blood cu*iorder a? a r***'ili of '-enzc.'i** exposure. Noting u-.-vt. i.c is ''customary" ta a y.vr-'A'.j^Ailv exposure limit by applying a safety fae'-'T j.;_:.N,> t0 lowest, level at which adverse elect? had K--i. i vr.Kl. the Agency stated that the pvii'piipp supported :l,p cor'du<i.that the limit should he at a point, 'Aur\=t;.e;,a.;v than 10 ppm" evert if hpii/'p-re s 'euk^ii'h; `".i`r'~ ver- considered. 45 Fed. Reg., at 5024--5925. OSHA did : : A.iie. however, that the nor.mahsr.aat effects of benzene exposure justified a. reduc- ticn in the permissible exposure limit to I ppm.14 CSHA also noted some studies indicating an increase in chromosomal aberrations in workers oluanicftlly exposed to concentrations of b-m:mne "pmbnbly Ic-'S than 25 ppm."11 Howevr'r the .Agency took r<> definitive position as to what these aberrations meant in terms of demoirntrable health effects and stated that no quantitative dose-response relation ship hod yet been established. Under these ciicurnstanc^s, chromosomal effects were categorized by OSIfA us an "ad verse biological event of serious concern which may pn*e or reflect a potential health risk ar.d as such, must be considered in the larger n'Tview of adverse health effects associated with bvrwene." 43 Fed. Reg., at 5032-5934. tt'ith respect to leukemia, evidence of an increased risk ft. e., a risk greater than that borne by the genera! population) due to benzene exposures at or below 10 ppm was even sketchier. Once 03HA acknowledged that the NTOSH study it had relied upon in promulgating the emergency standard did not support its earlier view that benzene had L-en shown to cause leuke mia at concentrations below 25 ppm, see n. 12, supra, there was only one study that provided any evidence of such an increased risk. That study, conducted by the Dow Chemical Co., uncovered three leukemia deaths, versus 0.2 expected deaths, out of a population of 594 workers; it appeared that the three workers had never ben exposed to more than 2 to 9 ppm of benzene. The author? c-f the study, however, con cluded that it could not be viewed as proof of a relationship between low-level benzene exposure and leukemia because all three workers had probably been occupationally exposed to a OCCUPATIONAL SAFETY & HEALTH REPORTER ri;n-:her of other potentially carcir.ugenic c ien.ica'.s at other point? in their carv-rs and because no leukemia deaths bad been uncovered jrTM? w irkvrs who had been exposed to much higher level* benzene. In its explanation of the permanent standard. stated li nt the pos.=ibi'ntv that theJe three leuki-imas nad )c-n c:iu>*<I by benzene exposure cotiitl Jiot be r tied out and that the study, although not evidence of an increased risk of leukemia at U) ppm. was ther-fore "consist ent with the fiiuliiu.:? of mnuy studies that there is an excess 1- ukfinia n*k am.mi; bvnxciu- c-xpu-vd viiiplnvci.s.M 43 Ferj. Reg., at 5925. The Agency inmle no finding that the Dow studv tinv other empirical evirHucc or any opininh testimony derronstrated that exposure to henzene at or below the 10 npm level had ever in fact caused leukemia. Fee 581 F. 2d, at. 503. where the Court of Appeal? noted that OS HA was "unable to point to any empirical evidence documenting a leukemia risk at 10 ppm. . . ." In the end OSH.Vs rationale for lowering the permissible pxpn?ure limit to 1 ppm was based, not on any finding that leukemia has ever been caused by exposure to 10 ppm of ben zene and that it will not be caused by exposure to 1 ppm, but rather on a series of assumptions indicating that some leuke mias might result from exposure to 10 ppm and that the num ber of cases might be reduced by reducing the exposure level to 1 ppm. In reaching that result. t'..a Agency first unequivocally concluded that licn/cnc is a luim.m c;u,vi:ii)geii.J" Second, *tt concluded that industry had fail-d to prove that there is & safe threshold level of exposure lo benzene below which no excess leukemia cases would occur. In reaching this cunclus;*n OSHA rejected industry contentious that certain epide miological studies indicating no excess risk of leukemia among workers exposed at Wel.-s below 10 ppm were sufficient tu ostab- Lsh that the threshold level of soife exposure was at or above 10 ppm.1' It also rejected an i niustry witness.' testimony that a dose-response curve could be constructed on the basis of the reported epidemiologic?.! studies and that this curve indicated that reducing the permissible exposure limit from IQ to I ppm would prevent at most ore luukemia and one other cancer d'-atli every six years.J1 *J "A ilose-rc.-pnn-e nin e* li;*w - ilic rH:in"ii.-lup l>c*\t,-iii f!.tfrrrr nnifiirc lew-1* ;ill (lie ri.-k nf r:mcif for ;mv oilier 'li.-wt-t-l :i.*-oei-iUd mill fhit-c evpa-urc level*. Gem rallv. r\|M.iir*' fo liiirlt'-r level* rarrie* with it ;i lusher ri-k. .mil expo-ure to Umer level- i.* jrromp.'iuxl bv a redmed r\`k " 541 F. 2il, at 504, n 2|. 05K V* fnimuein* v\ith fr-pert to th* insutFriencv of the data were nld'-e--t*tl primarilv to the l.uk i>f <|.-iri ,il |nw cx|m-urr level? 0f|\ did mu rti-ru** whether it mis [wiMiltl* ,c nv.ke a rimifli i-*tnii:le, h,-~fi on (lie morv tom|>1 ,-f- <-[>irl<-miul'ixi .mil atiiimil '11- at Iiii'ln-r e\po-ere >w!*. nf rhe r-igmfiejme# of the n-ks attributable to tluv-e levels, nor did it whether if war jvie-ilile ro r\cr-i|i*l;itc from such esti mates to derive a rt-k i^lmule for low-level c\j*,.-ure*. '* O'5!! 4 did not invoke (he automatic rule nf reclnein cxpn'ire* to the lowet limit feasible that it apphe* to eatmer rL-ks. Instead, the Secretary reasoned that prudent hr.il'h ;n>ltov merely required that th* perTtvyiblft exposure limit be *et , . rufTiriently below the level.? at whirh adverse tffer's have beert observed to nssitr? .'d''i|*nte protection for all exposed Cfiiplovrv- " 43 Fvtl [{no., at 5*3Ua. While f'.^U.V eonnlnrlml that appli<ation nf this mle wunlil lend tn an expo-nre limit "#nht.iiitiully le- than 10 pjim." it did not -late eith-r wh.it erpu-iire level it i-rnisidiTed rn pre^rnt a ?-!t;ri(ant risk of harm or what sift-iv fm-tnr <h.'nlJ be applwd to (hat level to e-tahk.di a p:ri:j>jtb!e exjio.-nre limit. "Whale ri'ii'a ih*`*e shulies OiallA al.-o noted that other Alurlie* of similarly expostnl workers lud not indii.ated any increased level of ehro* rrosome damage. J* ` Th- i-v iilfiti-,- in Mi,* rvcnnl nun Im.-ivcIv r-l.iMt-lu-- lit.if Kriir.'iit* is l human c.ircifl*:(frn. The dctermin.-*ti/'n of hmj"ne'j li*ukcfnefi';iicifv i* <l"- riv fd from the evnlu ttion of nil the evidence in totality and u nnt b'"f on anv one particular OS HA ri'ccgniaes, as iniJi<\n:~l iibove that in dividual report.* varv conuderihlv in quality, and that vtie investigations have i(pifieant methodological deficiencies. While recogniting t.w `trengths and weaknesses in individual studies, OSHA nevertheless conclude? that tha b-ni*ne record as a whole dearly establishes x c.au'jl r'laticnjliip between btnr-ne mid k-ikeinra." 1.3 Kv**l Heg, at 5031. 11 In n-jeciiim the-e miuiii**, (3HA elau-d iluit- `Although the vpidemiolcfrical method can provide strong evidence of a causal relationship between exposure and disexxe in the case of positive findings, it is by its very nature relatively crude and an insensitive measure." After noting a number of specific ways in which such studies are often defective, the Agency stated that it ia . . OSH.Vs policy when evaluating negative -tiii11. to held thriti in :i l.izln-r Umd.ird >,f int-iliod'iingii ,3 :.rnir,irv.'' 43 Foil. lli-z,, -it Wtl-503'2. \'iev>in ilit* iiidutry in thi- light, OSHA comindvd tluit cadi of Them had mfiicwni m.*lu,lf>tr>gtcil d-fn t? lo ni.ik.- iIwui unrcluible mdicjUirs of the iitfety of [ciw-le*el e\i'0.-'irii to bvnrenei i: tAsHA rejected this testimony ii; part bccan>e- it beiic* ed ihe -\iBure data in the epidemiological studies to be inadequate `o formulate a defespons* curve. It also indicated that even if ;hc *.-v imony was accepted-- indeed as long aa there-was any increase in `he rik c,j -nnerr--the agency was- under an ohlipition to "select the level nf exposure which is most proler'ive of exposed employee? " 43 Fed. llvu . at 5041. 7-10-80 Published by THE BUREAU OF NATIONAL AFFAIRS, INC.. WASHINGTON. OC. 20037 CURRENT REPORT 169 Third, tli? Ager.cy a.;'p 1 e.1 iU stj.ml-j.rd policy with ro-pec`. (ino^r'll'- " ! ;. : ! r t l.c l.l . --r t-* -jf definitive pro'.'f 'tf il ?rfe !o"p1. it = t La ;i"':ir.ed that c.n>j level above zero ijmr Li.th.:s*--.! r;.-L of c.mcer.*' As the Cov en- man t pointa out i:i its 1 -r.ef, there are a number of scientists and public health speculists who subscribe to this view, theorizing that a susceptible person may contract cancer from the absorption of evert one molecule of a carcinogen like ben zene. Brief for Fed-ral Partus, at IS--10." Fourth, the A.rency r'tern Ml vs view of the Act, atntinj' that it \V8 3 required by G (b)('-) to set die standard i-ttlmt at the level that lias been demm -irnted to be safe or at the lowest level feasible, whichc-er i- higher. If no safe level is established, as in this case, the Secretary's interpretation cf the statute automatically loads to the selection of on* 10 ll 1' In hi - ill Mh .1U -1 ir-i-. \! xn m t;.c i:im - 1 li.U 1 lie \cenrv did not fell- ``htinuiv OJj .-onii- dran-iii.in r:i n-ie.oijvil 'm-lnv' " in .-rllintj a pertni--d>le f\'|in^urc limit fur In-incetie Hr Ui :lie larse number of v-itnesua tli** Ajioni-y he^rd ami iln- \ulnniin>ai- n-i.-in! it co*ti <1 in cvitl'-r.i r lh.il il relit-i in-lr,nt fin (In- |iirfnu|ir !;ict< .omrr'ung lienwrur. With all clue- ri-pi-rt, xvr cti-:i urm- uitli Mil .ICM'ICK T li- II * interpre tation n/ the Aiitntp'> rationale fur il> <l*t-iiyn. \fn-r hrinntf the evi dence. tlu.- Asi n< v n lied on ihe -.ntie p-lii-v view n hud -Taleil at the O'U'f*, -cr |ip 13-15, wpi-<i. n.unit' llial. in t In* jh-viice of dear e* nlewe 10 t lir contrary, it must lie . i--i i m-* l t lx.it no safe level exist* for cxpo-nri; to a i art iinijjvn. The .Ajj-.-uey .ii.-o reariied ilir ini irely predictable con- clarion flint iiidii-fry hnl not c.iinnl it. runce-i. die impu-- ihlr* burden, Mi ll 11, infrit, frf prm inu (li.il a -.ilV |ii el of c-'in.i-nfi- f \U- for iion/Mii; As tin- .Aip'licy Hindi.- ilrar later in it- pl>'pr>.-cd eillfrir cancer pulley. see n. 51, ixf'n. if frl' i fiin| lli il n> .dluw ituhirirv winn-M-- In --o over the jaine ground in each re-sulalioti dealing with ,t an iimiti'n. di-pile it-- |Kxliry \aew. Tin- generic pnliry, which ha- not \ ei gom- into rltnl, 'n.- -jnHififnlh' fftf'lgiicd To rliinnuli' llij- (fujitn iliun of rlVorl in iiuti cn-r h>' forrc!u-iny itiiiu-irr from .iigmng that iloic i< a vifr loxa-i for tin* icirimil.ir carniiogtn boing ri-giilaiifl. 42 FH fl'-g., -'>4154-.">4i,>,5. "As stated above, ti,e ixo-itive >iudic- on ijet'ime detnotislnife th causal relationship o( benzene ta the induction of leukemia. Although these studies, for the most part involve high exposure levels, it is OSHA's view that once the carcinogenicity of a substance has been established qualitatively, anv exposure must be considered to be attended by risk when considering any given population. 06HA therefore believes that occupation! exposure to benzene at low levels poses a carcinogenic risk lo workers." 43 Fed. Reg., at 5932. > The so-called "one !ut" thi-ory i- hu-wd nn Inlvinfory ehidio-- intlirat- ing that ore molecule of. carcinogen may react in the test tube with one molecule of DNA to pmdnc* a mutation, The theory is that, if this occurred in the human body, the mutated molecule rnnUl replicate over a period of vrars and eventu.dlv develop into a cancerous lumor. See OSH.Vj Proposed Rule on the Identification, Classification and ncgulatirm of Toxic Siihslanc-a Posing a Potential Carcinogenic Risk. 42 Fed. Reg. 5414?, 541'V>-54157 (Oct. 4, 1'J77), Industry witnr-sos rli.illencod thw theorv. .arguing that the presence of several iliiferent drfens^ mct iiani^me in the human body make it unliktlv that k person would actually con tract L-.-.nrer as a result of nbsorbing one carcinogenic molecule. Thus, the molecu'e might be detoxifierl before reaching a critical site, damage to a DNA molecule might be repaired, or a mutated DNA molecule might be destroyed by the bndv'j immunological defenses before it could develop into a cancer. Tr. 2S3fi. In light of the improbability of a person contracting caneer as a result of a single hit. a number of the scientists testifying on both sides of the U'i* ngreed that every individual j>mlvbty does have a threshold e*posur*- limit below which he or she will not contract cancer. See, c. 9, Tr. 1170-- 11SI. The problem, however, is that individual susceptibility ap pear? to vary greatly and there is at present no way to calculate each anil every person s thre-hnltf, Tims, even industry witnesses agreed (hat if the standard must ensure with absolute certainty that every single worker is protected from any nsk of leukemia, only a zero exposure limit would nifiice. Tr. 2492. 2S30. c\;v>= hru; that, .i '.Lo !o'>-'=t 5>? vf zev.Fj importance to the econctoy, no eve hai ever va^st*; i that it tvou'.J be feasible to eliii.i-.3tc ita use ci-.t.i'.-ly, or t.> try to limit exposures to the sir,,,:i amounts that ere omni present. Father, the Agency sehltnd I ppm as a workable evposuvr. love), sDc n. II. svpr'j -nd tlmn dt-torminej that contpl anre ^vith tliat level was * dmolcElcally feasible tnj that 'the `"-onornic impact of . . . [compliance] will not be s-jrh as to threaten the financial welfare of the affects fiems or the general economy." 4" Fed Reg., nt 5f>3n. It there fore heM that 1 p;->ni vvas the miriinium Ra.-ikle exposure level within fhe meaning of r>(b)i"51 of tlie Act. Finally, although the Agency did not refer in its discussion of the pertinent legal authority to any duty to identify the anticipated benefits of the new standard, it did conclude that some benefits were likely to result from reducing the exposure limit from in ppm to 1 ppm. This conclusion was based, again, not on evidence, but rather on the assumption that the risk of leukemia will decrease as exposure lewis decrease. Although the Agency had found it Impossible to construct a doe-respon.*e curve that would predict with any accuracy the number of leukemias that could be expected fo result from exposures at 10 ppm. at 1 ppm, or at any intermediate level, it nevertheless "determined that the benefits of the proposed standard are likely to be appreciable." 43 Fed. Reg., at 5941. In light of the Agency's disavowal of any ability to determina the numbers of employees likely to be adversely affected by exposures of 10 ppm, the Court of Appeals held this finding to be unsupported b.- the record. 591 F. 2d, at 503." It is note-worthy that at no po nt in ifs lengthy explanation Hid the Agency quote or even ciU 3 (S) of the Act. It made no finding that any of the provisions of the new standard were "reasonably necessary or appropriate to provide safe or heultii- ful employment and places of employment." Nor did it nlhido to the possibility that any such finding might have been appropriate. '* "There ij no doubt that bonz*nr u a carcinogen and must, for 'he rai>*r:mt asd safety 0f workers, be regulated ,is such. Given the in- :*y `n cfTTv-.rrTn'e a threshold or eef.iblish a safe level, it i.< appropriate -"ii OSdA presc-ioe that the pemussiblc exposure to bcnze-ie be reduced ij -.ae loweei le*rl feasible." 43 Fed. Reg., at 5932. ' V an esrfxcr pr>int in il? esrbunfinn, OSHA slated; "There is aeneral agreement that benzene exposure caurei leukemia as well as other fatal diseases of the bloodformlrg organs. In spite of the eertnintv of this conclusion, there does not exist an adequate scientific basis for establishing the quantitative dose ren'onse relationship between exposure to benzene and the induction of leukemia and other blood diseases. The uncertainty in both the actual magnitude of expected death? nd in the theory or extrapolation from existinff data to the OSHA expo sure levels places the estimation nf benefits on `th* frontiers of scientific knowledge.' While the actual estimation of the number of cancers to be prevented is highly uncertain, the evidence indicates that the number mav be appreciable. Thre i* general agreement that even it* the absenceof the ability to establish a `threshold* or 'safe' level for benz-r.e and other carcinogens, t dose response rel.itiorsliip is likely to exist; that i, exposure to ImeIiit do^v? c.irrir? wi'li it a higher risk of c.im-cr. and i'in versely, exposure to loner levels ia accompanied hy a rertnred risk, evea though a precise quantitative ivlalioiL-inji cannot be established " 41 Fed Rr-js., at 5D40. " Tin- xMirt tlid. however, IrnM that tin; .Ajz**iu->other corti lu-iim--- that there i? some risk of leukemia at 10 ppm and that the ri-k w-'-iM de-.rei-e by deereasing the cv|KN>urv limit lo 1 ppm--wvte siii-p'-t'e-l by jubi'.mtijl evixlence. 561 F. 2d., at 50A. 7-10-80 Published by THE BUREAU OF NATIONAL AFFAIRS. INC.. WASHINGTON. DC. 20037 170 OCCUPATIONAL SAFETY & HEALTH REPORTER HI Our resolution of the i^ues in thus inso turns, to .1 fnrjre rx'-cnt, on the niraniug of and the relationship between 3 (S). which defines a !tcn11f 1 and :ufety standard as a -tan-lard th;.`. is "reasonably nrcosavy and appropriate to pro\;d? sate or healthful employment." and 0(b)(5). which directs the Secretary n, promulgating a he nth and safety standard for toxic ir.atcrm'.s to "set the standard which incut adequately assures, to the extent feasible. on the basis of the best avail able evidence, that no employee will suffer material impair ment of htudi,h or functional capacity. . . In the Government's view, iS)' definition of the term "standard" has no legal significance ur at best merely requires that a standard not be totally irrational, ft takes the position that 6 (b)(5) is controlling and that it requires OSHA to promulgate a standard that cither gives an absolute assurance of safety for each and every wck -- nr that reduces exposures to the lowest level feasible. Tl-- Government interprets "feasible" as meaning technologicuhv achievable at a cost that would riot impair the viability of 0 industries subject to the regulation. The respondent indi:- -/ representatives, on the other hand argue that the Conn .f Appeals wa correct in bolding that the ''reasonably i.i-e-^arv and appropriate'' language of S'3 (8), a'ong with t'su feasibility requirement of 6 (b)(5). requires the Agency to quantify both the costs and the benefits of a proposed rule and to `onchide that they are roughly commensurate. In our view, it is not necessary to decide whether either the Government or industry is entirely I'ci'rrct. For we think it is clear that $ 3 (8) does apply to all permanent standards promulgated under the Act ami that it requires the Secre tary, before issuing any standard, to determine that it is reasonably necessary and appropriate to rmwlv a significant risk of material health impairment. Only after the Secretary has made the threshold di tei'mination that such a risk exists with respect to a toxic substance, would it be iieecsnry to de cide whether 6 (b)(5) requires him to select the most pro tective standard he can consistent with economic and tech nological feasibility, or whether, as respondent** argue, the benefits of the regulation must be commensurate with the costs of its implementation. Because the Secretary did not make the required threshold finding in thin case, wc have no occasion to determine whether cents must he weighed against benefits in an appropriate case. A I'nHer the Government's view. ?3fS). if it has nnv sub stantive content at all." merely requires OSHA to issue stand- gr-.'i mat are reasonably calimhaH m pr-duce ?. suf-c or rm r? h"x!thy werk environment. Tr. <d Oral Arg. ]R. CO Apart from this mi.-.i:- al requirement of , jtiot.ahiy, dm Government LiZ'h-% that 3 (8) imposes no yu the Agency's power, and thus would n it prevent it ftom requiring employers to do wTat<".-fcp would be "reasonably necessary" to eliminate nil risks of any harm from their workplaces.'11 With respect to toxic substances and harmful physical agents, the Government takes an even more extreme position. Relying cm 5 0 (b)(5)'3 d.rectiou to set a standard "which must adequately assures . .. that no employee will suffer ma<e-ial jtnpsii men t of health or functioned capacity," the Cow. ument contends that the Secretary is required to impose standards that cither guarantee workplaces that are free from any risk of material health impairment, however small, or that come as close as posable to doing so without ruining entire industries. If the* purpose of the statute were to eliminate completely and with absolute certainty any risk of serious harm, we would agrpe that it would be proper for the Secretary to interpret 5 3 (S) and fi (b)(5) in this fashion. Dut we think it ia clear that the statute was not designed to require employers to provide absolutely risk-free workplaces whenever it is tech nologically feasible to do 50. so long ns the cost is not great enough to destroy an entire industry. Rather, both the lan guage and structure of the Act. as well as its legislative history, indicate that it was intended to require the elimination, .as far a> feasible, of -'.gnifiamt risks of harm. B By empowering the Secretary to promulgate standards that are "reasonably neces^arv or appropriate to provide safe or healthful employment tuid places of employment" the Act implies that, before promulgating any standard, the Secretary mii-t- make a finding that tin* workplaces in question are not safe. But `Safe" i.- n.t fli* equivalent of "risk-free." There are many activities that we engage iti every day--such as driving a ear or even breathing eity nil--that entail some risk of iwcid-ht or material health iiupttit ment: iievertliele?-* few people would cop.idee the'-c activities "unsafe.'' Similarly, a workplace can hardlv U* considered "uu>nfe" unless it threat en* the marker* wifi* a significant risk of harm. Therefore, before he ran promulgate on/ permanent health or safety standard, thu Secretary is required to make a thresh old finding that a plare of employment is unsafe--in the sense that significant risks arc ptese:'. and can be eliminated or lessened by a change in practif- This requirement applies to permanent standards promuL- led pursuant to 3 6 (b)(5), *' V\> cannot arrepf the argument that 3{S) ij tntnHv m<\inmlo*s The Act aiulioriifx the Secretary tu promulgate three il.ficreM kind* of standards--national concert*!** xtnrnlard*, permanent standard* and tem porary rinergenry *t;inhrd* T1m- *nlv -nlt-lnrlivc rriferia given for two of thr*e--intinnal rnnseri-us -l.inil.tnl* u.d permam'iit -tainlards for *,af''tv h.i.taril* not rmi'fM lie 5 d --.ire -it nut!i in .'I. While it j* true that $3 i.i entitled ,`dc/initiiiii'," tint fait <J<v* not drain each definition of snh'Mntiec conteiu. For miImtsum*, th'-n- wmiM In* n ptir|inc in dc- fining the critical term* of tin- ft.initc. Mnrruver, if the ilrfimlimm were ignored, there would h** m> tattnry crhVri 1 at all to guide the Secretary in promulgating either nalimed rcrwiisr* standard* or permanent !>f:inri* .aril* o'her than tho.-e dealing with toxic materials and harmful physical ngrotj. \V> mae not expect Congress to di.-pl.iy perfect rrutmaiiship, but it is unmli.-Mc to .muuiii* that it intended to give no direction whatso ever to the Secretary in promul^ nina mo-d of his standard!. The structure of the separate sub-cnion de-rrihmg emergency temporary standard.*, 2D U. S. C- 5 fIM (c). quoted tupra. ti. 13. .u|i|>orfs this concht- ion. It authorizes the Sim-tary to bypass the normal pi-whire.* for setting permanent standard* if In- tn:ika> two findings: (A) that cinpl.iyer* art cxjtned in "grave danger" from exposure to toxie -iib-ranee* wiJ (B) that an emergency .<tntid.ird w "ruTewry1' tu prntvvt the enaplovees from that d.- rci r Thnxe findiiigs are In? reniparixi w iili tlm-e that are hnphridy rtqiiind bv the (UTmirk'R nf the pcrncnwxtt slamlard--(.A) that there t>e a sigmaeant--a* to a ` grave"--nek, and (B) that aldi- tional fignl.iiion i; "rea-ouahly nect---ary nr apprnpriat?"--aj nptwd to "necessan*." Ir would he aii<mialisi- for Gungn-'S to require specific fintl- ing.* for temponrv standard* but to give the Secretary a curfp htunrhe for permanent srandarde. , `Tin* Government doi-* not voncfnl.- that the fea-ih-lin- rt-qv.iremrnt in the second Kntence of ,ipj.P* to health ami eafetv .n.indard* Other dun toxu- -'ib-l.iiiix** standard*. Fee n. 1, *rpvi Howeier, even if if did, the Gn.erwn*-tn'* inl.i-prwatinn of tin* tenn `'feasible,*' uhn -f*-i f uidi it- iiia <.| J.Wi. would -1 ill .ilhm* tin- Ajp-ivv tn r*-< j>ri rc' the elimination of even irwnrnfioant risks at grwt eo^t, so long aj an entire industry"* viability would not be j-mpardued. 7-10*80 Published by THE BUREAU OF NATIONAL AFFAIRS. INC.. WASHINGTON. DC 20037 MCD 000012809 CURRENT REPORT q; wo! 1 ns to ritluT tvn-j c: . i rn`.ii:*:t* stuiidards. For there is r.o ren-on why ; .3 ,8 ; (.h'fiiiiihm uf n >tnndanl shoV'l rot be deemed mcr r(.< t .fed by ref'-rrece in!.) ; 0 (Mi,'). The -tand.inl.' proiMul^ateii pursuant to $ H (b) f ol an; just ei.e r;>r'-ii'5 of the genu* of htauchnala governed by the br.fic reqe'ii'inent. That section p'|ipate'!i>' u*cs tno term without snpso^tia^ any exception from, or quali fier/.' a: cd the c'-'iieial >b (mil-on: on the contrary, it ci.recta r< pit to select 'h'hr -rot:^i.4r.f"--tfir*.t is to say, one of various faiio .il'crn.'ih'.i's that satisfv the basic definition in 3 i'S) -- that is most juuu-i u.e.*r Moreover. requiring the Secretary to make R threshold finding of significant- risk is consistent with the scope of the r gulaU'ry power granted to him by s r> (biff)), uliirli cnip<i,\;-r.s the fiecreUry to promul gate standards, not for chmiucfit- and physical agents gen erally. but for "toxic chemical?*'* and "harmful physical .agents."*4 This interpretation of 5 3 f8) and fi fH>t'fi) is supported by the other provisions of the Act. Thus, for example, 6 (g) provides in part that "In determining the priority for establishing standards under this section, the Secretary shall give due re gard to the urgency of the need for mandatory safety and health standards for particular industries, trades, crafts, occupations, businesses, workplaces or work environments." The Government has expro*-1y acknowledged that this section requires the Secretory to undertake some eo?*f-b*nrfit analysis before he promulgates any standard, requiring the elimination of the most serious hazards fir.'-t."' If suci. an analysis must precede the promulgation of any standard, it seems manifest that Congress intended, at a bare minimum, that the Secretary find a significant risk of harm a".i therefore a probability of significant benefits before esbibh-'di'g a new standard. 'Section 6(b'(.*l pr.nllcb 50 fa) in thi roquet. Srvtion a fa) re quire* the Serrebirv. when hired will) a rhni.c h. iwrvn two national enn- M H-.il- -t:i h*!:i *< |-, >n Hci-i- I in- iiii-C' ' ! *>l i . i it? , m |:i rd. -n- 11, > < 7. .<(<; tr Juat as 0 fa) do*s net sugie^f that this mere protective etaed.in} need not meet the definition of a national ronwtmis t u/ard set forth in 3 (9>, so 16 (b)(5) does nol suggest that the mast protective toxic material stand ard need not conform to the definition of :v "standard" in 3(8). ** The ref of fi (b)(5), while requiring ihv FerrHmv to promulgate the standard that "most adequately assure* . . . that no employee will suffer material impairment ot health or functional cap.ieit ,** iljn contains phrases implying that the Secretary dicnlii r^nvidcr differences in degrees of significance rather than smifilv a lot.il ehminatiun of all ri?*ks. Thus, the standard to be selected is one that adequately assures, to the extent feasible, on the ba.-i* t<( the hi-*t available evidence," that no Such harm will result. The Secretary is al*o directed to lake into account '`rpa^rch, demonstration!, experiments and such other information as may be sppmpnate" and to consider "bln .addition to the attainment of the highest degree of health and safety proterti<<n for the employee . . . the tatest available scientific data in the field, the feasibility of the standardt, and experience gained under this and other health anti safety laws." Mn. b -TicK Mui-Mtii. -ta<-* thirl ..nr vi*w of $ (M would make the fir-' -ituvii'i- n> 0 (h)(5) rllnoii- MV di-ncr-v T1* Itwl m-iiIi-ihc oi 0 (b)(5) rt-|uir-- the SvcM.iiy to select a Hiulily pro'i-dive .-t.md.ml mice fio Im- fle'cnin'liffl Hint a -taiofiini should Iw* proniulspi*is|. The thf-li-dd tii>iPti that then- i- .< ui-*l for -mb a .standard in tin..... . that there i- a -imiifimnt ri-k in tin- workplace i- not unlike tin* flirvclinhl finilin" that a <-1nmnril i tt>\i<* or a pln-ical aemit i harmful, Ouro the Sn ret ire In- mi,i|i- i In- n-qui-ilr (Iim-IoI.I liuditur. <* (M f a) ihnvt* liiui to rbiNi-v *h- nm-i pr>l.stive -taudinl that -till im-H- tin- ili linilion of a stand ml under 3fS), cnn-i-hsit with fu-iblitv. 49 "First, 29 V. S. C. 5 fv>5 (?) r-*|iirj-?* the S.vtvtrv to e*lal|i-b priori- tjc* in setting occupational hcalrli and s.ifvlv standard* so that tho moro serious haiarris are addressed first. In setting e-ich priorities the Seere- ury must, of course, mneid-r the rvlafi* ro-t., benefits and risks." 171 Section G (b)i.?) ler'b ccldit,,;;,..! support !o tliio n tiy-ia. Thnt subjection requires tbut. '.vhcr. t!:i* ^^cretjry substantially niters an existing consensus lie must explain how th- new rule will ,'bettfir r ~ ctuate" tin* ptirpo*es of the Act.'* T: tins requirement uns ir.ton.'!'! lo be more than a meoning- l-'-s- furmality, it m :st be rearf to ir'jios<* up<-'i (be .'mcretary t!-e fluty (o fin'l that on existing national f'nri-tn<*v:s standori.I 'S not adfquute to protect v-irkers from a coMtimiing anil sizuifirant risk of harm. Tlui-. in this case, thp Secretary was required to find that e\po-urcs at 11:o current permissible expo-urf hwvl of 10 ppm pie-`uit :i "imisfii-unt risk of harm in the workplace. In the absence of a cb*ar mandate in the Act. it is unreason able to assume that Congress mtendpei to give the Sevretnry the unprecedented power over American industry that would result from the Government's view of 5s 3 (8) and 6 fb)(5), coupled with OSHA's cancer policy. Expert testimony that, a substance i* probably a human carcinogen--either because it has caiised rnnrpr in animals or because individuals have con tracted cancer follow ing extremely high exposures--would jus tify the conclusion that the substance poses some risk of serious harm no matter how minute the exposure and no mat ter how many experts testified that they regarded the rick as insignificant. That conclusion would in turn justify pervasive regulation limited only by the constraint of feasibility. In light of the fact that there are literally thousands of substances used in the workplace that have been identified as carcinogens or suspect carcinogens, the Government's theory would give OSHA power to impose enormous costs that might produce littl. if any. ilmrerniblf iHumtit/' If the Government were correct in arguing that neither 3(8) nor 56(b)(5) requires that the risk from a toxic substance be quantified sufficiently to enable the Secretary to characterize it as significant in an understandable way, tin* *tatuU* would iniikv -urh h ``sweeping delegation of legis lative power'' that it might lx? uunni-titutioiKil under the Reply Brief, at 13. TJ* Om-mum-nt aran*-- ilmt Pie Swo-tary'- H-ttmc of priorities uiiJt thi* section i not -uhject to judicial review. Tr of Of.il Arg. 23 While wp agree that -i rourt ramiot ti-'l the Secretary which of two admi't<x|K- siffnificnnt ri-k* he sli.ml.J net to regulate firt, tlii* s**ction. .il'Ui? mill ,GI <s) :md 0 (b) (.'). indicolc* ih:il the AH dn-- limit die Swreury's power to requiring the elimination of rigniftr.ml risks. ^^mnAlU) 29 I' S r. fi.5.i (bl(9l, provides: "*.**?*ver a n,! *"c.n,c:ite<l In- ihr Svretjirv ili(T-r* jnfHt.-inti.illy from sn eii-xiea n.-ir^.-e-,; -an-.-c-ii.- -t.irid irrl. !)? fVerHarv ,1mIJ. at the same lyr p':hi>h in the >*e??er-il nrci-t<-r n *(;ilrment of the ren^ms whv the m! a* adopted will b-t*er HI--'tiinie the |nirjx>s of this chapter than the sarienaf eonjen-u* jiandard." `OFH.A'J proposal cmcrie e.incvr policy, 42 Fed Hr*. 5411S (Oct 4, 1077), indi.-.iiej tint ihi< (nv--iliilify is nrt merely liypothetie.il. Under i proj'Osil, whene'er tfi.-o* i- a vertain qwiniinn of proof--ekher from expcriniffit*. or. Ion* frequently, from epi<liiui<ili>jie:il studies-- (hi* .a nhst;ince cau-os c.meer at any expu-tire level, an enn-raecry tempor irv staodaril would b* pfotiiulgiiisi iinnu-di.ilely, requiring emplover? to provide monitories .tnd medical ixuiniiiatitub and to rwlm-e expu.-ure* to '),- l-we-r f.-.-iM.- ! \ 1 I A pr,.|..,^-i| rill.- would di.-n U- iv,,l ,ln-,c the tame lino*, with olijiTticg employers rfTcHivHy foreclo-c<l from presenting evidence (h:i th>'ro i.- littIt* or im risk a.s.-ociatnj with current e.Ypo-nre levels. 42 Fid Itojj>:d 54154-5 (J.ifi, S4184. The scope c*f th<* propHcd rutulalion h indicated by the fact that N10SH has published :i list of 2415 jHilciitial occiip.ition.il nremoe^nj, Ni(>*H ?iwpt`ctxl rarviju gens: A Subfile of tin* N108H nqtuln.- o( Tone IAIcc's uf ChcmitMl Snh-tanr*-?*, HK\V l'uh No 77-149 iPcc. lOTij). OSH A has tentatively rpnchnlcd that 2fifl of these* sub*tani*e* lm? I torn pro\ i le lx carcinogens and tlwrc/orv should be subject to full regulation. See OSHA Prv Relvase, USDL 73-025 iJnly U, 1973). 7-IO-fiO Published by THE BUREAU OF NATIONAL AFFAIRS. INC.. WASHINGTON. DC. 20037 172 Cl nil t I i'.'c-i m 11 Hi in ''l ^ * 1t' r !*< `a 1 `''/ ( v. ( n ilfd .Sfftffc'.X. 2'i`, l', S. 4'l'>. .".>!*. iiihI liijintKtj Co. v. if'jOo, 2H3 l S. dSS A -<ii i-1 rn* T :"i: m! r J it* >t:i t u t**(St)hat :u ci'ls till? kliKl (>]' i >| in i -cm !< I ur:i 111 -In iul` I fi i I j 111 iy In* fav ort-d, c Tl;- n ln-rnyv n!.o support? the conchi: ion th.it Ci'i ur.'.-s a.-i-i roiii'crue'l imt uith alixnluto safely, hut with tl t- 'i ti11:imrion of vi|tf111tlinj11 harm The examples nf inrluj- trial h.i/.'iriif ref*rr^-'l to in tin3 n>rmnit ti'O ! mariner and debates all involved sit uni inns :n t h < * risk was unquestionably ic;iifir.int. Fur cxampl-*, tl.-; f'-i:;itf* Committee on Labor anT Cubin' Welfare noted that b; -si'iosis. a dbabling lung fiiS'.M?tv caused by breathing cnt-iv- <lust, affected as many as uO'/f uf tiif workers in fat'dmg or j>"i ninjj i <jo in> ui -nmt* Ameri can cotton mills anti tluit. a.s many a- 100 000 uctivu or retired uorkcis were thru iuiJtVrin^ from the tlis^asu. It also noted that statistics indicated that 20.0U!,' out of 50,000 workers who had performed insulation work were likely to die nf asbestosls, lun* cancer or tnesothelyioma as a result of breathing asbestos fibers. Another example give t of an occupational health hazard that would be controlled by the Act was beUmaphthyiamine, a "chemical toxic that any exposure at all is likely to cause the development of liftdrier cancer over a period of years." S. Rep. No. 91-12S2, at 3-4 (9I ?t Cong., 2d Ses ). Legislative History, Occupational Health arid Safety Act of 1070, pp. 143-- 144 (1971) (Comm. Print). Moreover, Congress specifically amended 6 (b)(3) to make it perfectly clear that it does not require the Secretary to promulgate standards that would assure an absolutely rtslc-free workplace. Section 6(b)(5) of the initial Committee bill provided that "The Secretary in promulgating standards under this sub section, shall set the standard which most adequately and feasibly assures, on the basis of the best available evi dence, that no employee will suffer any impairment of health or functional capacity, or diminished life expect ancy even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life." (Emphasis supplied.) S. 2193, 91st Cong.. 2d Sess.. at -10; Legis. Hist., at 243. On the door of the Senate, Senator Dominick questioned the wisdom of this provision, stating "How Li the world are w* ever going to live up to that? What are we going to do about a place in Florida where mosquitoes are getting at the employee--perish the thought that there may be mosquitoes in Florida? But there are black flies in Minnesota and Wisconsin. Are we going to say that if entpln; ees get bitten by those for the rest of their lives they will not have been done any harm at all? Probably they will not be, but do we know?" Legis. Hist., at 345. He then offered an amendment deleting the entire subsection." After discussions with the sponsors of the Committee bill, ** In criticizing the Committee hill, Senator Dominick also made the oltowing observations: "It is unrealistic to attempt, a* thi* section apparently Hoes, to establish h utopia free from any biennis. Absolute safety is an impossibility and it will only create confusion in the administration of this art for the Con gress to set clearly unattainable goals." Legis. Hist., at 4t50. OCCUPATIONAL SAFETY & HEALTH REPORTER Senator Dominick revised hia amendment. Instead of delet ing the first sentence of 6 (b) (5) entirely, his new amend ment limited the application of that subsection to toxic materials and harmful physical agents and changed "any" imp iinm-ht of health to "mate! iuP impairment." In dis- Cjssitig this change. Senator Dominick noted that the Com mittee's bill r-ad ns if a standard had to "assure that, no matter what anybody wn? doing, the standard would protect h:m for the rvxt of his life again.-t any foreseeable hazard." Such an "unrealistic standard,'' l.j stated, had not been in tended by the sponsors of the bill. Rather, he explained that the intention of the bill, as implemented by the amendment, was to require the Secretary ", . . to use his best efforts to promulgate the best avail able standards, and in so doing, ... he should take into account that anyone working in toxic agents and physical agents which might be harmful may be subjected to such conditions for the rest of hi3 working life, so that we can get at something which might not be toxic now, if he w-orks in it a short time, but if he works in it the rest of his life might be very dangerous; and we want to make sure that such things are taken into consideration in establishing standards." Legis. Hist., at 502-503." Senator Williams, one of the sponsors of the Committee bill, agreed with the interpretation, and the amendment was adopted. In its reply brief the Government argues that the Dominick amendment simply means that tL-- Secretary is not required "But I ask, Mr. Pre-ident, just thinking about that language let us take a fellow who U a streetcar conductor or a bus conductor at the present time. How in the world, in the process of the automobile accidents that we have all during a working day of any one driving a bus or trolley car, or whatever it may be. can we >et standards that will make sure he will not have any risk to his life for the rest of his life? It is totally impossible for tlii.- to be put in a bill; nitd yet it is in the couumiteu bill." Legis. Hist., at 42.1. As an opjjonent of the U-^hlaiion, ?*nator Dominick may have exag gerated the significance of the problem since the language in $1fSl already was -ufhcwnl to prrvmt Ihe Secretary from trying "to cM.iblijh a utopia free from any hazards." Nevertheless, tlnr fact that Congress amended the bill to allay Senator Dominicks concern dcm<'M->tf:itcs that it did not intend ihe -t.itute to achieve "denrlv unattainable goals." " Senator Dominick had also been concerned that the placement of *he word "feasibly" could be rend to require the Secretary to ` ban all occu pation* in which there remains some risk of injury, impair'd health, or life cxi' i-tam y," since 1 lie way to moat "adequately" and "feasibly" assure absolute protection might well be to prohibit the occuimtion entirely. Legis. Hist.. at 3Gf-dG". In hie final amendment, he attempt**! to cure this problem hy relocating (lie feasibility requirement, changing "the stand ard which m&-t adequately and fcu.-ibly a~rnres" to "the standard which most mltqiiHidy .muriK, to the extent feasible." J Mu JcsTtCK Mahshaui, argur- Hint Congress could not hnve thought $ 1 (SI had any .-utv-lantivc meaning inasmuch as $ 6 (b)(5), ns originally drafted, applied in alt -landnrds and not simply to standards for toxic material- and harmful physical substances. However, as this legislative hi-tort iudicati-, it aptwars (hat the* omission of the words "toxic sub stance-" and 'harmful physical agents" from the origin.il draft of 6 (b) (S) wa- entirely inadvertent. A.- Senator Dominick noted, the Committee had .ilu.os Intended ilust sub-cctiou to apply only to that limited category of Mib-taiites. The* reason that Congress drafted a .-iweinl section for these substances wae not, a* Mn. JuiTict Maii.-hall .-uggesls, bec:m-e it thought that there was a ni**d fur ?|>eeml protection in thoo areas. Itather, it was bec.iu.-c Cougres- recognized I lust there were -|hxu;i| problem.- in n-gulating health risks as opposed tu safety risks. In the latter <%<*, the risks arc generally immediate and obvious, while in the former, the ri-ks nitty not he evident until a worker Inis hcru exposed for long periods of time to particular sutetanrea. It wax to ensure that the Secretary took account of these lougdcrm risk- that Congress enacted |6 (b)(5). 7*10*80 Published by THE BUREAU OF NATIONAL AFFAIRS. INC.. WASHINGTON. D.C. 20037 MOD 000012811 CURRENT REPORT 173 to eliminate threats 0/ ii'5igr-.ifu..nt harm; it argues that 0(b)(5) stiii requires the Secretary to set standards that ensure that not even one employee will be subject to any risk of serious harm--no matter how small that rir-k n:uy be.5' This interpretation is at odds with Congress' expr,<v3 recogni tion of the futility of trying to make all workplaces totally Uk-frep. Moreover, not even OSHA follows this interpreta tion of 6 (b)(5) to its logical conclusion. Thus, if OSHA is correct that the only no-risk level for leukemia due to benzene exposure is zero ,11.d if its interpretation of b to) (5) is correct, OSHA should have set ths* exposure limit as clew: to rero as feasible. But OSHA did not go about its task in Jiafc way. Rather, it began with a 1 ppm level, selected at least in part to ensure that employers would not be required to eliminate benzene concentrations that were little greater than the so-called "background" exposures experienced by the population at large. See n. 11 supra. Then, despite sugges tions by some labor unions that it was feasible for at least some industries to reduce exposures to veil below 1 ppm/'' OSHA decided to apply the same limit to all, largely 03 a matter of administrative convenience. 43 Fed. Pkeg., at 5947. OSHA also deviated from its own interpretation of 6 (b) (5) in adopting an action level of r.,5 ppm below which moni toring and medical examinations ..rc not required. In light of OSHA'a cancer policy, it must have assumed that some employees would be at risk because of exposures below 0.5 ppm. These employees would thus presumably benefit from medical examinations, which night uncover any benzene-re lated problems. OSHA's consultant advised the Agency that it was technologically and economically feasible to require that such examinations be provided. Nevertheless, OSHA adopted an action levet, largely because the insignificant ben efits of srivin* such examinations and performing the necessary monitoring did not justify the substantial cost.4' OSHA's concessions to practicality in beginning with a 1 pnm exposure limit and using an action level concept im plicitly adopt an interpretation of the statute as nut requiring regulation of insignificant risks.'* It is entirely consistent with 'Reply Brief, at ?)-20. Whilr it b tme that mine of Senator Dominick's comments were co'uerned with the relative unimportance of minor injuries (10c his "fK" example quoted Ht p. 34, ivpr<i), it is clear that he was also concerned with the remote possibility of major .njuriw, see n 52, supra. ''One union -ugswed n 0 5 ppn pcrtnivibl* exprvire limit for oil refineries and a 1 ppm ceiling (rather than a time-weighted avenge) exposure for all other industries, with no use of an action level, Tr. 1250, 1257. Another wanted a 1 ppm ceiling limit for all industries, Tr. 3378. r*'A ne-d for nn action WH ie also 'iisgr-h-d hv the record evidence that some minimal expomira to benzene occurs naturally from animal and plant matter (TR. 744-750: 750-760). Naturally occurring benzene con centrations, it appears, may range from fl 02 to 15 parts jvr billion (EX. 117. p. I). Additionally, it was mifieeted hy certain employers that their oneratinna be exempted from the requirements of the standard becau fh<* operations involve only intermittent and low level exposures to benzene. The use of the action level concept should Accommodate these concerns in all cases where exposures are indeed extremely low since it snb*tan*inllv reduces* the monitoring of employee* who are below the action level and removes for these employees the requirements for medical surveillance. At the same time, employee* with mgnifiennt overexposure are afforded the full protection of the standard." (Emphasis added.) 43 Fed. Rrg, at 5942. u The Government al-o -tat** that it i* OBHA'a |K)lirv to attempt to quantify benefits wherever po-ible. While this is rortuMv ft rraaooaWe position, it is not consistent with OSHA'9 own view of its dutv under ? (b)(5)- In light of the inronstoenritii in OSHVs p-witiim and the lexislative history of the Act, we decline to defer to the Agency's interpretation. this interpretation to hold that the Act also requires -.he Agency to limit its endeavor', it'. :he atai.dard-setr.ng -area to eliminating significant risks of ti.-rm. Finally, with respect to the Ipg-siative history, it is im portant to note that Congress n?pp*.ed[y expressed .ts concern about allowing the Secretary to have too much power over American industry. Thus. Congress refused to give the Sec retary the power lo shut down plants un.laterally because of ?n imminent danger, see Whirlpool Co~p. v. Marshall, ----U. S. ----- , and narrowly circumscrbcd the Secretary's power to issue temporary emergent v standards.This effort by Congress to limit the Secretary's power is not consistent with a view that the mere possibility that .-rune employee some where in the country may confront ;onv risk of cancer is a sufficient basis for the exercise of the Secretary's power to require the expenditure of hundreds of millions of dollars to minimize that risk. D Given the conclusion that the Act empowers the Secretary to promulgate health and safety standards only where a significant risk of harm exists, the critical issue becomes how to define and allocate the burden of proving the significance of the risk in a case such as thU, where scientific knowledge is imperfect and the precise quantifi* ation of risks is therefore impossible. The Agency's position is that there is substantial evidence in the record to support :f* conclusion that therlPns no absolutely safe level for a cwcinoi--11 and that, therefore, the burden is properly on industry to Prove. apparently b-yoncl a shadow of a doubt, that there is a safe level for benzene expo sure. The Agency argues that, because of the uncertainties in this area, any other approach would render it helpless, forcing it to wait for the leukemia deaths that it believes are likely to occur *u before taking any regulatory action. We disagree. As we read the statute, the burden was on the Agency to show, on the basis of substantial evidence, that it is at least more likely than not that long-term exposure to 10 ppm of benzene presents a significant risk of material health impairment. Ordinarily, it i * the proponent of a rule or order who has the burden of proof in administrative proceed ings. See 5 U. S. C. 55fi (d). In some cases involving toxic substances. Congress has shifted the burden of proving that a particular substance is safe onto the party opposing the pro- -a !' tlori-ta Pearh Grmrm Atm., Irtr v. Drpt. nf Labor, ISO F 2d 120, 130, and n. 16 (CAS 1974), the court not^d that Cnngre-x intended lo restrict the ns* of emergency standards, which are promulgated without ny notice or hearing. It held that. In promulgating an emergency standard. OSHA must find not only a (linger of exposure or even some danger from exposure, hut a grove danger from exposure nece-.-rf.ifing emergency nctinn. Accord. Dry Cofort Sftri. Assn , />rc v Dept, of Labor. 4$d F- 2d PS. IOO (CA3 1973) (jn emergency standard trust be supported by somerhmg more than a pcu.-ibility that u substance may cause cancer in man). Congress also carefully circumscribed the Peiw<*i:iry' enforcement power* by creating a new, independent hoard to hand!? appeal* from -ua'inri issued bv the Secretary for noncompliance with health and safety stand ards. See 29 U. S.C. $639-661. *"A nolitl above, OSHA acknowledged that there was no empirical evidence to support the conclusion that there was any risk whatsoever of death* due to exposures at 10 ppm. \Vh.l OSHA relied upon was ft theory that, because leukemia death* had occurred at much higher exposures, some (althnugh fewer) were also likely to occur at relatively low exposure*. The Court of Appeals specifically Md that its conclusion that the number was "likely" to be appreciable win* unsupported by the record. See p 27, supra. 7-10-80 Published by THE BUREAU OF NATIONAL AFFAIRS. INC.. WASHINGTON. DC 20037 MOD 000012812 174 OCCUPATIONAL SAFETY & HEALTH REPORTER po.-H'i rn|t*. 1 The f.u-t that, O'junre?* not follow th;s cO'ii in enacting OSHA indicates that it intended the Agency to bear the normal burden of establishing the need for a proposed standard. In this case OSHA did not even attempt to carry its burden of proof. The desist it came to rocking a finding that benzene presented a sier.if.cant risk of harm in the workplace waA its statement that the benefits to be derived from lowering the oermissible exposure level from 10 to 1 ppm were "likely" to be "apprrcinhie." The Court of Appeals held that this finding was not supported bv substantial evidence. Of greater importance, even if it were supported by substantial evidence, such a finding would not hn sufficient to satisfy the Agency's obligations under the Art, The inadequacy of the Agency's findings can perhaps be ilhitrated best by its rejection of. industry testimony that a dose-response curve can be formulated on the basis of current epidemiological evidence and that, even under the most con servative extrapolation theory, current exposure levels would cause at most two deaths out of a population of about HO,COO *v-,r\*er* tverv six years. See n, 38, supra. In rejecting this test mony, OSHA made the following statement: "la the face of the record evidence of numerous actual deaths attributable to benzene-induced leukemia and other fatal blood diseases, OSHA is unwilling to rely on the hypothesis that fit most tun cuifvr- ''very six years would bv prevented by the nropo-cd standard. By wav of example, the Infinite study dis.bwud seven cxce-s leu kemia deaths in a populatio i of about OHO people over a 20-year period. While the Infante study involved higher exposures then thos*: currently encountered, the incidence rates found by Infante, together with the numerous other cases reported in the litcratme of hnuzene leukemia and oilier fatal blood diseases, makes it difficult for OSHA to rely on the f witness'] hypothesis to assure that statutorily mandated protection for employees. lit any event, due to the fact that there is no safe level of exposure to ben zene and that it is impossible to precisely quantify (he anticipated benefits, OSHA must select the level of ex posure which is most protective of exposed employees.'' 43 Fed, Reg., at 5041. There are three possible interpretations of 03H.V* stated reason for rejecting the witness' testimony: (1] Q?H.\ con sidered it probable that a greater number of lives would be saved by lowering the standard from 10 ppm; (2) OSHA thought that saving two lives every six yours in a work force of 30,000 persons is a significant savings that makes it reasonaide and appropriate to adopt a new standard; or (3) even if the small number is not significant and even if the savings may be even smaller, the Agency nevertheless believed it had a statutory duty to select the level of exposure that is most protective the exposed employees if it is economically and technologically feasible to do so. Even if the Secretary .lid not intend to rely entirely on this third theory, his construc tion of the statute would make it prun-.r for him to do so. r' ,'*isi>'om*>liw D'frmr Fuuil, h<r. v EP.i, 170 H S, A;>p. D. C. 43, 548 P. 2d 508, 1004. 1012-1018 (1977). eert. ritniwl, 43! U. S. 923. where the rourt n*;*ct"d the argument that the l\PA Ka the byrdeu of proving that a pesticide is unsafe in order to suspend its registration under the Federal Insecticide, Fungicide and nodenticidr* Act. The court noted that Corgtrss had dvhfeentely shifted the ordinary burden of proof under the APA, requiring manufacturers to establish th.* continued safety bf tbeir predjet*. Moreover. trade r.o evpms< r.n-h - :-,s .... i port his 1 ppm standard on an- Iris :rr>.-t,c theory l'n ; - these eircum-Unces, we can har'dv -with the Cu--;r.- meat th.il 'ThffA discharged it.* -irfio Contrary to the Covvruniei t'i r on,'.!. t,ra:< i n,U''1-' ' ? a burden oil th- Agency of demo r.a(i a siiirifeant r.'-k of harm will :v>t drip it of its ahilitv to o'Z'b.-P.--' rirrini'gi'i's. imr will it requ.re the Agency to unit, for death'! to occur ' -fore taking anv action. First, th re.-piireun.-nt tht a "significant ' risk be identified i not a inathematica] srraitj.acket. It is the Agency's responsibility to determine, in the fir.-t instance, what it considers to be a "significant" risk. Some n.-ks are plainly acceptable and others are plainly unacceptable If, for example, the odds are one in a billion that a person will die from cancer by taking a drink of chlorinated water, the risk clearly could not be considered significant. On the o'h-r hand, if the odds are one in a thousand that regular inhnlatimi of gasoline vapors that are two percent benzene will he fatal, ft reasonable person might well c.-'-ider the risk significant and take appropriate steps to ikwrea.-* or eliminate it. Although the .Agency lia no duty to calculate the exact probability of harm, it does have an obligation to find that a significant r-k is present before it can characterize a place of employment as "un-afe." 0 Second, OSHA is not required to support its finding that i significant risk exists with anything approaching scientific cer tainty. Although the Agency'3 findings must be supported bv Mibstan tial cv idence, 29 U. S. C. if 055 (i), !j G (h)(5) specifi cally allows the Secretary to regulate on the basis of the "best available evidence." As several courts of appeals have held, this provision requires a reviewing court to give OSHA some lccwav where its findings mint be made on the frontier? of scientific knowledge. Sec Industrial Union Dept., v. Hodgson,----- l*. S. App. T). C. ------- , 490 F, 2d 467, S~`' (1974); .Society o/ the Plastics Industry, Inc. v. OSH.i, ` F. 2d 1301, lSOS (CA2 1975). cert, denied, 421 U. S. ' Thus, so long as they ore supported by a body of reputv.'+ scientific thought, the Agency is free to use conservut, .* assumptions in interpreting the data with respect to cilt- - gens, risking error on the side of over-protection rather *.h *- under-protection." tIln hi* dissenting opinion, at t'r, Mu .fi'<Tirs Mr-- stall-' thiil "when the que-iien ionilve* rletfnniii.viufi nt flu- all!,. I^vel of ri-lr, the ultunit* deii-iim mn-t la. '-*:trily Ik- !>-- coiutdvritintu of policy wrll :n ''mpirii'ully verituMe (w'.s I Ji'tiTmin.iiiuni cur .it mewl define tlie rl-k in -om- .-r.,ii-1m-:I w > judgment whether that n.*k i.t tolerable ramml In- bii-ed ndeiy uu . lutinii of the f.utj.'' We agree. Thtia, whiV die Aguitv mad - it# finding that a certain lev.I of ri-k by sub-t:mti.d e id. <> rot'r-ijrizf that it* cfrtennimlioli that a p.ftirular level of ri>V nifient" mil hr? bn.*er| largely on policy ton-iiler.it ion.-. At tin* (><> have nn n*?cl to finch the iv-nc of wh.it level of scrutiny a r*" remit! ,-bouhl .ipplv to the latter type of il<'lrnjiiiiition. Mh Justice Mn#duU. sute* that, tindrr our upproiirli, the ,s- iu*l idir Wi.ii for death* to oernr or mu.-t "dr*>-eive the pnUir" !. ii*j a li.i-irrilly nieiuiini'le-- ilH-rniiimtuu* of 'i'zrnlie.iiu e h;i-eil oi> Itl.rdeqn.ire i-i jili'iii e. Mlt. Jl'M'ICK M.VKH\LL's view, Iiowvut. T- the eriiiiu (in- t-i> rni-- rli.it (lit- only ri-r-i>n O.-H A di.l nut .i* f qua lit ilA* tuiu fit In tlii- i-:i>e Im'imiiko it routil iiiilitu >u in :inv al.le niaiiniT. A- the iL*eii.--iun uf f1m* Ajjenei'> r*j<Ttn>n of an ..... attempt at fuiimilating a i|iiM -n-.|nn!rt*- enrvr ihamui-trifi-*, Inm. . ]ip. 42-4A su/hh th*' A<-t'iir\ reiei'limi of *u*lvU -io-Ii ;ir itn-i,-r- uir\i> ;> I>.--( at lea.*r in |uirt on it* vm'w that imiliiui' I. ab-olnle -iifely Wi.ulll >ITi<-e. 7-1080 Published by THE BUREAU OP NATIONAL AFFAIRS. INC.. WASHINGTON. DC 20037 MCI) 000012813 CURRENT REPORT F;nr\U/, the record in this cose arid GSH.Vs own r'jlir.zs on other carcinogens indicate that th*-e ire a number of ways m which the Agency can make a 'c'ional judgment about the relative significance of the risks n.-ociated with exposure to a particular carcinogen.'* It should also be noted that, in setting a permissible expo sure level in reliance on less-tha '.-perfect methods, 0?HA '.vonld have the benefit of a backrr-p in the form of monitor ing and medical m-ting. T!uh. ;f '>HA properly determined that the pet tn i -- ,ide cxpr.-m e 'i: i h i io-; 1.1 be sr-t at 5 ppm, it could *tdl require monitor:'- j and m*-ii'-ai test nig fnj- em- ployer-^ expci'T-d `olnM.ni Ic'-'-l'. ` By doing so. ;t nooid keep a.-t iot 'Im'-k iiM tin* v.i:i'ity of the .I'-m q,tium-. math* in 'urn the p!,r:iO'S|l)i:' c\p'-i-uif- L'ivjug it ,n sound c > hint:1i ary 1 nt -is for dr; r a - ing tin* 1 unit if it \\ n- in it .all v set l<"> liign `" Moi-i o\ i-r. in lli.oi.r. ii. c'indd i,;.-tw> that- worker>* oi * Vnr i.A;iiti| mi-, in ill*- mki orn < iiii'.-inn- -tin'linl. n.'HA h.id n.'cM- Ln.-il Ul.il Ut.nnu i-\[iij..ti{ men w<irk"ri il.nl 'll -Hii::iI CMi--- lilor- r .i I,t <. n| ovi-r ami hoi 'hr tunjuurfl > ami.i r! mu'1.' w c-i 1 dmiiiniie ihc ri-k rntirilv -11 K'-d. lha: 41 <74Ct. ImSO iiVt. C'J 1 '*7*1), npli`l<i m .tfi-pTf/n frnn iV `'(if !><! v. OSffA. 377 F 21 x_\3 (CAll I97SI. !-rt. jirii'fii"'. No l.'U.'U'i Iii li'orniii mi ilit- ..nkr oven 'niiM-iuti- ?-t uul.iret, ,hc Cmiik'iI on tV;ir(. t I'nc-r Slai'tlily oil im.ill <1 lli.il S to .13 !ivis w rinfd Ih- - i' mI r:u h i car. out of an i'Iini.>ii ll i-.(ml.11ion ui 14 MOO work er'. ,i> ;i rii-ult of tin- j.rnjKi.-i-il -laiidari. .Mtliouglt not ins that the raiize of Inin Pit- woiihl vary rlrjn'iuliius on tin- a-_.iimiiii.in- u.-tal. IV HA did lint iiuhr a finding a- to uiicilnT il- own -hdT i-iaiui- or CWl'S's wns correct, on 'he artiMinl ih.it it wo- not required to r|n.miifv the expected binrfit- of tin- -tan.lard or to uni'll tho.-r lmii-tit agaiiot the projected C'O'tl. In nllur pr>ir<--<iittu.-, the Aji-my ha> hail a Six'll di-il of data from animal i\pcnini ti' nil ulmh II oiohl ha-i- a cnin lll.-inll Oil ifie > ii'llihi'a I ice of the ru-h. Fur ov..<inj*l<-, tin.- rnord yu ilm \inv| iht.inile stand.iril in- ili' atrd ill it a -iitlilfii ant liiillihiT of animal- h nl dr\i Igpi-d flit!|ir* of the liver, long and -kin alien Ihrv acre c\|n>-i d tn 30 ;>[im uf vinvl ihljritle oi er :i peri'id nf 11 tmnil )i.. t 'no lininlri-il mil nf Unit aaiuial-i died during that i-irii.il .m Fol. R>TM. lUVHi, :uv>t Vt. 4. lf*77>. Similarly, in a I'tT4 -t.iiid.ird rnu'il.iuiig t4 r;irrinngi n<. (ISflA found tli.il. one of (lie suh-t.iiin s h ai ( .in-ni him' rann-i' ill ii.nr nr f.il' at 1 jipnt and C'Vtl 0 1 vi'in. u hih- anudii-r had i.ni-id Inuim- .ti HKf' nf the aiiiit:at.< siib- jectvd to high iIom-*. 3y Fc-il Hcg. riT.-.r (r.m. Uy, 1974), upheld iti Si/iitfietii Ontai-.r ('!/, u,u 'il ,V/r.i A -mi V /iiviiii'in, 5U|i F. '2d HAS (CAJ 1<)7*>. i-cit ihn.i-il. JI> l'. S liTli. ami ;MHi gd JS', (CAa lP74), ccrt. cli lii*ai, -id.i U. S. ^I't In (Iii* im.-c1 I hi* tgriii-y did uni Iiivh the ln-m-lit nf atiitn.il >t'idii~, be- can-r si ii-iiti-'- Ii.iu- hivti nn.dilr a- yi-t to itnhim li-ukctm:i ;it (-Xiieratirnt.il aiimi.d.' a.- a n--*ill uf l>rt,/itn- i-'('n'uri- Tt did. Iiuwvcr, haii* a fair .lltlmml nf I |i(ifi-:if|r'l''i;i/-;r) "i n) -m i-. un h|ilillj In-th i\ *e ntid tn-cjlin* Studies. Al'hmigh the Atri'ln V -talul that tht-i iw tlli-n. e Ma iii.-nltii'lclit to coi'*tnn t a prit i*i- 'nrrrtaiinii LiKverii fXposiiTf level* mu! i-.mcrr rt'ks, it nmdd at li-a-t lx- fnft'f'd 'i lU'lertnitiinjf wlirilmr il is 111010 likely than not 'h.it Mi.m i- a -ii'niticaid ri-k at 10 |iptn. "^.i- n.yy c.r,. v. oshrc. isn n. s. App d c. 20, 'jui f. 2d on (1977), where the Court upheld the a.be-t<M standard insofar ttj it re quired employers to provide medicat examinations for employees exposed to any asheatoe fibers, even if they were exposed to concentrations below the permisetbfe exposure limit. The respondent industry representative have never di?r,*l,r^ 0?HA's power to require monitoring and nt-<hi' il examinations in gi-nerRl, although they did object to some of th sporifir n-q'iircments impo*ed in this ca-e. See n. 30, *vj>rn. Uoranse of our dispneitiou of the ra.-e. we have no occasion to pn on rhee siH'cific objevtiott* or to determine what cosf- b'-nefit coniiclentinns, if any, should gvm-rn flu? Ageniy's impo-uton of surh recpiiremcntj. MT1ti- i> prai-t-!y the type of infurin.ittiiti-^.illii-riiisf fuui-tioti that 0't** grew had in mind when it enartnl | 6 f.t) (7), which eni)*nwrr. the Secre tary to require medical examinaiinns to be furnidied tn emplovee? expo.-cii to certain hatards and potential hai.irds "m orrW to moat etfpctjvcly dv- termin- w hether the hv.dlth of sti'h < tijiloyen is arlivr.tely nlfecteii hv >n- h exjtosure.'' See Legis. Hist., p. 147. 175 fli'ln C l Ulll^i'. ' brfC't>- t:.:-y 1:;! -.iduTei p-.y K BriMurO our re,.".T,'v of tins case !.a< invob'ccj a tuore detadcc! o\ar;i;.a;:.-n cf th* record ila\ is cuitvinary. it m.;-` be c..- tn.t?;cc-1"! tint, wo have nc.ti -r at\y factual niin.it'u:;-- <f cur i uii. t;oc have t`'j'-tftv] pay factual fiu'l- injs tn.:,..!? by tb.- ?pcretary. W- expr-ss no ojiinion on what factual t:tvi.:i2.r this rpcoitl mikld -upiiort. citlu-r on die basis of empirical OMupnce or on the l .i.-ns of expert t-stiiuonv; nor do u-w exp.r^y# any opinion on the more difficult question of "'bat factual determinattons wonbj warrant a conclusion that significant risks are present which make promulgation of a new standard reasonably noce\ary or appiopnate. The standard must, of course, be supported by the findings actually made by the Secretary, not merely by findings that we believe he might have made. In this case the record makes it perfectly clear that the Secretory relied squarely on a special policy for carcinogens that unpo=ed the burden on industry of prnviitjc the exigence of a safe level of exposure, thereby avoiding the Secretary's threshold responsibility of establish ing the need (or more stringent standards. In so interpreting his statutory author ity, the Secretary exceeded his power. IV Throughout the administrative proce-dir.gs, the dermal con tact issue received relatively litlle attention. In its proposed rule 05HA recommended a total bun un skin anti eye contact with liquid benzene on the basis of its policy that "in dealing with a carcinogen, all potenti-d routes of exposure (t. e., inhalation, ingestion, and skin aB--rption) [should] be limited to the extent feasible." 43 Fed. Reg., at 594A. Them was little opposition to this requirement at the hearing on the proposed rule, apparently bec*n*e the proposed rule also excluded from both the permissible exposure level and the dermal contact ban work operations involving liquid mixtures containing 1/1> (and after one year. 0.17O or less benzene. In its final standard, however, OSHA eliminated the per centage exclusioii for liquid benzene, on the ground that there was no predictable correlation between the percentage of ben zene in a liquid and the airborne exposure arising from it. See n. 18. supra. Although the extent to which liquid benzene is absorbed through the skirt is conrrd<*dly unknown, OSHA also refused to exempt any liquids, no matter how little ben zene they contained, from the ban on dermal contact. In support of this position it stated that there was no evidence to "suggest that the absorption rate depends on the amount of benzene present in the liquid." 43 Fed. Rug., at 59485949. After the permanent standard was promulgated, OSHA received a number of requests from various industries that the percentage exclusion for liquids containing small amounts of benzene be reinstated. Those concerned with airborne exposures argued that they should not be required to monitor workplaces simply because they handled petroleum-based In i- <-.vf>I:rn,itin of tlir final latliril OFHA nnli-4 tlr.it Mu-re was jeme leMimonv that bloctl .xbr"rmaliiie wowM rit.*.ippr,iT -'fter e*pn-nrn had rea-eH. 4-> F*d 394ft. Again, linnever, 05II-V !c*'n-'xl f" n-/>- cn tin* hyjK>ih*'ii flt.if rhi* ivooM .iJwny* occur. Yrt, in rrqurtcjt mi-m al fvunm.ation* of cmjiloyw* exp-40*! to between OS pum mnl 1 ppm, O.^HA w*s csjviitially providing itwlf wjtb the f.arae kind of haikrtnp. 7-1080 Published by THE BUREAU OF NATIONAL AFFAIRS. INC . WASHINGTON. DC. 20037 MCI) 000012814 1/fi OCCUPATIONAL SAFETY & HEALTH REPORTER products in which bcrizpnc is an urAVi/'dafcle contaminant. Others concerned tvi+K the Jerniil contact ban made similar arguments. In particular, tire manufacturers ar^icd that it was impossible for them to comply with the ban because g'.ovra cannot be worn during certain tire-building operations in which solvents are used and solvents containing absolutely no benzene are not commercially available. Because of these requests, OSHA held a new series of hear ings and promulgated an amendment to the rule, reinstating the percentage exclusion, but lowering it from the proposed l'Jc to O.oTe. The .Agency did. h..uover, provide for a three* jur grace period before the e\cl;;. ,rm dnij^a-d to 9.1 r,c, rather than the ore year that had originally been proposed. In explaining its amendment, OSH.- reiterated its policy with respect to carcinoger.3, stating that, because there is no abso lutely safe level for any type of exposure, exposures by what ever route must be limited to the extent feasible. For air borne exposures, a zero permissible exposure limit had not been feasible. However, in most industries a ban on any der mal contact was feasible since compliance could be achieved simply by the use of protective clothing, such as impermeable gloves. The Agenev recognized that the dermal contact ban could present a problem for tire manufacturers, but stated that the percentage exclusion would alleviate the problem, be cause solvents containing 0.59c or less benzene were available in sufficient quantities. Although it noted that solvents con taining 0 1% or less benzene were not then available in quan tity, the Agency stated that a three-year grace period would be sufficient to "allow time for increased production of solvent containing lower amounts of benzene and for development and evaluation of alternative methods of compliance with the standard's dermal provision." 43 Fed. Reg., at 27968-27969. The Court of Appeals struck down the dermal con tact prohibition on two grounds. First, it held that the record did not support a finding that the ban would result in quantifiable benefits in terms of a reduced leukemia risk; therefor*, it ws3 not "reasonably necessary1* within the meati.rg ;.f | 3 ;5) cr the Act. Second, the court held that the .Agenev'* conci sion that benzene may be absorbed through the skin was not based on the best available evidence a re quired by 6 (b)(5). 5St F. 2d. at 505-506. On the second ground, the court noted that the evidence on the issue of absorption of benzene through the skin was equivocal, with some studies indicating that it could be absorbed and some indicating that it could not. All of these studies were rela tively old and the only expert who had testified on the issue stated that a simple test was now available to determine, with a great deal of accuracy, whether and to what extent absorption will result. In light- of 5 6(b)(5), which re quires the Agency to promulgate standards on the basis of the "best available evidence" and "the latest ivailable scien tific data in the field," the court held that where there is uncontradicted testimony that a simple test will resolve the issue, the Agency is required to acquire that information before "promulgating regulations which would require an established industry to change long-followed work processes that are not demonstrably unsafe." 581 F. 2d, at 508. While the court below may have been correct in holding that, under the peculiar cireum dances of this cose, OSHA was required to obtain nacre information, there is no need for us to reach that issue. For, in order to justify a ban on dermal contact, the Agency must find that such a ban is "reasonably necessary and appropriate" to remove a significant risk of harm from such contact. The Agency did not make such a finding, but rather acted on the basis of the absolute, no-risk policy th.it ;t applies to carcinogens. Indeed, on this :.':ue Agency's posirion is evttn more untenable, inasmuch ei it was required to aj-jume not only that benzene in small d'*-s is <k carcinogen, but also that A car. be absorbed through the -kin in sufheicnc amounts to nreseit a carcinogenic risk. These assumptions are not a proper substitute for the findings of a S- Smficant n.* of harm required hy the Act. 1 he judgment of the (Yurt of Appeals remanding the peti tion for review to the Secretary for furth-T proceedings is affirmed. /1 is jo ordered. Mh Chief Justice Buhcfih, concurring. Th;s case presses upon the Court difficult unanswered ques tions on the frontiers of science and medicine. The statute and the legislative history give ambiguous signals a* to how the Secretary is directed to operate in this area. The opinion by Mh. Justice Stevens takes on a difficult task to decode the message of the statute as to guidelines for administrative action. To comply with statutory requirements, the Secretary must bear the burden of "finding" that a proposed health and safety standard is "reasonably uf-t.vs.-ajy or appropriate to provide osie or healthful employment uud places of employ ment." This policy judgment entails the subsidiary finding that the pre-existing standard presents a ' significant risk" of material health impairment fur a worker who spends his entire employment life in a working environment where ex posure remains at maximum permissible levels. The SecretHry'x factual finding of "risk" must be "quantified sufficiently to enable the Secretary to characterize it as significant in an understandable way." Ante, at 35. Precisely what this means is difficult to say. But because these mandated find ings were not made by the Secretary. I agree that the 1 ppm benzene standard must be invalidated. However, I would stress the differing functions of the courts and the administra tive agency with respect to such health and safety regulation. The Congress is the ultimate regulator and the narrow func tion of the courts is to discern the meaning of the statute and the implementing regulations with the objective of ensuring that in promulgating health and safety standards the Secretary "has given reasoned consideration to each of the pertinent fac tors" and ha.i complied with statutory commands. Perminn Busin Aren Rnte Case*, 390 U. S. 747, 792 (1908). Our hold ing that the Secretary muet retrace his steps with greater rare and consideration is not to be taken in derrngatum of the scop? of legitimate agency discretion. When the facts and argu ments have been presented and duly considered, the Secretary must make a policy judgment as to whether a specific risk of health impairment is significant in terms of the policy objec tives of the statute. When he arts in this capacity, pursuant to the legislative authority delegated by Congress. he exercises the prerogatives of the legislature--to focus on only one aspect of A larger problem, or to promulgate regulations that, to some, may appear ns imprudent policy or inefficient alloca tion of resources. The judicial function does not extend to substantive revision of regulatory policy. That function lien elsewhere--in Congressional ami Executive oversight or amendatory legislation; although to bo sure the boundaries are often ill defined and indistinct. Nevertheless, when discharging his duties under the stat ute, the Secretary is well admonished to remember that a heavy responsibility burdens his Authority. Inherent in this 7-1080 Published by THE BUREAU OF NATIONAL AFFAIRS. INC.. WASHINGTON. DC 20037 MCD 000012815 CURRENT REPORT st.itjtorv schem** is authority to r<_-f;ai11 from regulation of insignificant or dr ntlinnus risks. So" Al,:b'ir>n /`uuer Co. v. KPA, -- U. 3. App. D. C. --,----- F. 2d --, No. 78-1006, HKj> op.. At 41-44 (Dec. 14, 1670) (opinion of I.tventhal, J.). When the administrative rtcur-i re\euU cmly scant or minimal ri-k of material health impairment, responsible administration ca)U for avoidance of extravagant, comprehensive regulation. Perfect safety is a chimera; regulation must not strangle human activity in the search for the impossible. Mn. Jt>TtcB Powell, concurring iu part and in the judgment. I join Parts I, It, III A-C, ami III-E of the plurality opinion.*1 The Occupational Safety and Health Agency relied m Urge part on its "carcinogen policy'1--which had not been adopted formally--in promulgating the benzene exposure and dermal contact regulation at isue in this cased For the rea sons stated by the plurality. I agree that 6 (b) ( j) and 3 (8) of the Occupational Safety and Health Act of 1070. 29 U. 3. C. >> Go3 (b )1 5 i. 652 (Sj. must be read together. They require OSH A to make a threshold finding that proposed occupa tional health standards ate iHnsonably r.ec*v<iry to provide safe workplaces. When 03HA acts to reduce existing na tional consensus standards, therefore, it must find that (i) currently |n?rmiasible exposure levels create a significant risk of material health impairment; and (ii) a reduction of those levels would significantly reduce the hazard. Although I would not rule out the possibility that the necessary findings could rest in part on generic policies prop erly adopted by 03HA. see McGarity, ?ub.*{antive and Proce dural Discretion in Administrative Resolution of Science Policy Questions: Regulating Carcinogens in EPA and 0?H.\. 07 Geo. L. J. 729. 77>4~759 (1079), no properly sup ported agency policies are before us in this care.' I therefore agree with the plurality that the regulation is invalid to the extent it rests upon the assumption that exposure to known carcinogens always should be reduced to a level proven to he safe or. if nu such level is found, to the lowest level that the affected industry ran achieve with available technology. 1 Tlu*** ot itw> 'iLirnUty o|iuun primarily j'.tdrrsii OSHVs pe dal v.min'-'ra policy, railwr than OSH.Vs argument that it also made cvir| nmry fimtin^.-. [ do not nwe*s.rily agree with every observation in the" jilurulirv i>|immii cdiirenuiiiz Hu* pro-awe or ahtteace of such find ings. I jl.-o expre-* no view on (he qurMion whether n iliiTerent inter- prrtjoon of rh*r -t.uiite wmM violate (he noiuirlcgation dortnrw of Schtchtt? Po'illru Corf/, v. ( /idri/ xfotej. 205 U. S. ->95 (19.15), and H-'fiiifi} Cu. v. Hijoh, -hJ.I l'. S. S'-bS (19i)5). See pvt, at -- ( |{km NoL'i> r, .1, cinmirrin^). 'Tin* H.ir-firy uf Ld-or pmmnl'.'.iiol the relevant mm.l.mi pursuant ! In> -t.m'H'ry I'i'hurity. Sine-.* U.-HA i.s the :*nwy rcqtoiiMhle for ik-velopinij -u--i, re^ul.itnms utukr the Secretary's turret inn, this opinion ri-fT- to OSH f or ' tin- agrtscy" as de J.-ri-iouni-ikcr ni.wl directly vutu -mnl, JOSHA lii* nluptul ,i fi.rtn.il jt.lirv Tar n-unlating r:ire*n,,gr...i,, effective April 21, I'isti i;, Ki,t Wi-g .<'*>'2 (.),m 22, mmi put no *uch policy 1'J< hi It.'-' a(i.ii 'In- agi'tuy |ii>intn!-z.iiitl i'* In-uzem- r.ytlation. More* /i\pt m i'h-r '!! l.iit'i.l (leti-riini).iiinn. ii)>r (lie ;i>iiiniii.xlr:itiv* jmliz'iiectr l!]ep|> which III.* policy rc-ld ate >ii|>|poi p-.j .uh--|tMtHy OH (his record aU'lic. Aci .irihnalv. w> h .ve m> ........... to coh-idrv tin* c.\U-n* to which valid agp-nny j.ipIh i-- rn.iv 'tpply a In-I.- |..r a fouling thiil health ri*L< exist in particular ra.xr?. 177 I If the d:-jpidd ri'c-:h:`,on wore based cvr'usbidv -n this "car:- ! iijfrti p(.i!;<-i- I ul-o vw.tid agree that we r.-,l rC" <-:< 1 - r whu'l!i.-r the A< 1 rffpiiccs OsHA to detorndne that lh> I>c:s>-fit5 of r'ropc,*,'d 'hmdurd nr? irasonabty rcirtteci to tm- ci.i-t- >*l i't:iu|hiuf1 civ .l/p.'e. til -*j. A* the Court of Appeals fu the Fifth Circuit t <i. huwrviT. (l.'HA takes t!ie fipdl-l'.Hik ;><isit,.p|, that ;t* : eg i kt t ion i< ru-tifted hv spet.fic fitidmas I'.LM-d upon tin* vulumi mils rvi.leutiarv rccurd com- I>.K.1 in thi- r:w>. ,>S1 F 2d V-i. 70:p fbHA found, for example that the nuinh-r of c.iuters pre%eiitel by reducing permis-ihle expuMire IrveU from 1U iipm to 1 ppm ` iiif,y he appi eciiiblf*.' tfiat "the bem fits ,,f rlie* proposed stiuulard are likely to be appreciable." and that the "subjtfuitiul costs [of the m-w tamlard] are imtified m light of the hazards." 43 led. Heg.. at ifi4*'-.i! 141. I hits OSH A found----at least gen erally--that the liazards of ben/enc exposure at currently permissible level*, are serum* enough tu iustifv an expenditure of hundreds of millions of dollars. For me. that finding nec essarily subsumes the conclusion that the h"uUh risk i? "sig nificant.' If OSHA .* coochisfon is sU(>(>orted liv substantial evifleoce, the tlirt'ilmld rripiuenu'itt diseiiNje-d in the plurality opinion would be *<tte*fie'l. As T read its opinion, the plurality does not consider whether the agency's finding* are supported by substantial evidence. Tin* Court of Appeals found th-mr insufficient because OfiHA failed "to estimate the extent of expected benefits. . . ." 581 F. 2d. at ">l)4. That court ap|arendy woubj have required 0?HA to supply a specific Numerical "-innate of benefits derived through mathematical techniques for ``risk quant.fi* cation' or ''c<i*t-cfi'ectivfiM'.v( iinyh'sj.v'' at 5b4. n. 21: see id., at *104-50,5. \ <!n not agree with t'ne Court of \|*- peals' poucIumou that the statute require- quantification ri*k in every case. The statutory preference for the "best available p\id.-t>c " 20 l . S. C\ 5 d.5." t ft)t*51. implies that OSffA must u-- r'>+ best known techniques for the accurate estimation of r *g, and b-nefits when such technique- :u> available. Rut o*-i,v-f the statute nor the legislative history suggest* that OjH v httinla are titrfl when reasonahl quantification cannot b< r complishcd by any known methotla. Set* pout, at ----- t M shall. J , dissenting). In this case. 03HA found that * is impossible to precisely quantify the anticipated fits. . . 43 Fed. Reg., at 5941. If this finding i ported by substantial evidence, the statute does not pr- -' : the Secretary from finding a significant health hazanj o.. t * basis of the weiglit of expert testimony ami opinion I > not understand the plurality to hold otherwise. i ' at 49. For the foregoing reasons, I would not hold that < dui not oven attempt to carry its burden of proof <> thresliolil question whether exposure to benzene at in presents a significant risk to human health. .4n> In my view, the question is whether OSH-A succe^f ried its burden ou the basis of record evidence. Th lion in turn retfuces to two principal issues. First * substantial evidence supporting OSHA's determine available qmmtificatitm teclmi(|Ues are too impren*^ niit a reasonable mnnerical estimate of risks? If ' OSH A has failed to show that its regulation re?* "best available evidence." Seomid. is OSHA's ft sigtiificant risks ut current exjK*sure levels support-l stantinl evidence? If not, then ObHA has failed to w >. * 7*1080 Published by THE BUREAU OF NATIONAL AFFAIRS. INC. WASHINGTON. DC 20037 000012816 178 OCCUPATIONAL SAFETY & HEALTH REPORTER lliH i.hw i-> n-i i-a-nry fu ;m>v:d" safe and healthful wurkp'itcvs It Although t regard tJi' que-tim, ns rlu't;, I Jo u<>t discitfrve w i(li Uir plurality-- view tliat OF HA luia failed. o:i this ruConl. tf> curry ils hurtle'' of proof on the thri'slmhl '.'stir? mjmii:iOi i/M<] above Hut even if mm as.-u i n*-s that OSHA properly met this burden. st-e fw*l, at---- f M \h.?h \r.r.. J , rli.ss^rHtng). [ uoeehiilt* tint the statute aim require? the a^ncy to (le'ermiiie* that the <Y('i"'mic eif'-et.- of i's s'nt'dnrd hear a reasonable relationship to the (Xpect'-d benefit'- An oe.cup-uional her.lth standard is neith' r "rea-maMy necosary" nor `feasi ble.1' as required by statute, if it calls for expenditures wholly disproportionate to the expected health and jufety benefits. 03HA contends that SliHOfj) not only permits hut ac tually requires it to promulgate standards that reduce health risks without regard to economic effects, unless those effects would cause widespread dislocation throughout an entire in dustry.4 Under the threshold test adopted by the plurality todiy, this authority will exist only with respect to "sig nificant'' risks. But the plurality does not reject OSHA's claim that it must reduce such risks without considering eco nomic consequences less serious than massive dislocation. In my view, that claim is untenable. Although one might wish that Congress had spoken with greater clarity, the legislative history and purposes of the statute do not support OSHA's interpretation of the Act.* It is simply unreasonable to believe that Congress intended OSHA to pursue the desirable goat of risk-free workplaces to the extent that the economic viability of particular indus tries-- or significant segments thereof--is threatened. As the plurality observes. OFHA itself lias not chosen to carry out 4 OSHA argue? di.ii fi (M (5) tvfju*ri-? it to prnmu'gate 4;iud;ifde that arc "f<\i.-ililti" onlv in tin that they art* "callable of aelitevemmr"; that ii. achievable "at lx-.irihh- ct-.-t with iiviil.ible foehiKilcgy." Brief fur flic FnliTal Rinc 57. The Inwer vmtrt? have indicated that a t:iihl.ir<l i.-t not "itifc.i.-iblc" umliT (X^HA* ic?t mile?.' it would prccipi- (ale ' in.i.'.-icc I'tciimiiic di.-locnlivn" in the alTivtvd imln.Urv. See, e. y , tun iVfln fVilriiifciM nf Lobur v. Urrm.im, 5.50 }'. 2d I0*>, liM (C.43 l!i75). In tlii' iai, Or* HA -imply a-kiil a ciin-'iltinu firm to nwcrtam the curls of eoniplving with a I |ipin -i.iiidard. Jy-c mile, at II. OSHA then con- thidetl flint `the ccntnunic iiii|ic< of f<vinpli:incc] will not . . . threaten fin* fmanri.il welfare uf the alTevletl !inti. or the general economy.'1 P Kcd. ICcg.. at aUd'l The en.'l of rtnnjiiyiitg with a standard tuny bo li'Mr.iUle'' and Mill not cca-vn.ilik rel.Uitl to (be Iwtiefif* ev|iei (nl. A uiain'f.iv'urmg uunpaiiv. IW cNatiipIc. tn:iy have fiiianei.il n^ottrcee that inalile it to |mv flic Or*HA-t>rdcrcd iu'i'. lint i-qwiuliturr- for unpri^ dih'five |nir[K>Hi' itiav bum xrioii-lv it' litiatvtal ability to remain coni|>oliItvc and pnwillc pd *- * I w ill nut roju-al t he detailed -tnnmafy vf die Inrblative history con tained in flu* |Hiir.ili'y opinion. Autr. at HA--40. Matty of (he <-ouirtrr- uon.- that the phir.iliiv reli>?> tipmi to .4mw C<Jhgrv>n' cufte-nt with signifi* i-.mt li.inn,' jer-n.iili- m,- iltat t'tingn*e dil mil intend OSHA to mhn-e each t'Kifirniit. h.it.ird wifln.iit nictnl tu cevivttti* riteet|>irm-e. Senator A'l'ifinx* a .-lein-er uf the h^'i-hlmn, stated tbnlr "Our bill is fair and ri.- -;.fr* H )* ,i gu<*l-i.nth offnrt to Ixil.iin'e the iMX-d of workers to ltn' -.<[ f11- healtliy work cnvirmiinrn* .iRaiital the rtt|iiirenirt>l of in.hi'-'v -o ............. wit!<ml ttti*hit- interfen'iice." Su'viinuuittec on I.ihi.r of rhe Senate ('mitiuiiree nn Lal*>r and Public Welfare, Lcgtal.t- Mv- ^li'liin* Ijf file Oeni|>.-ilnilial PafetV .iimI Hmlili Act nf 1370, Wd Cong., let Fe-c. |t. 4ISA (Cntimt. Prim IPTH. There could b# ro such "balance" if (b*ll.\ were amhnriird in ini|Mt-e .'laudanle witlmul regard to economic con.Mijiniu'v.' .-Imrt nf .-crimi.* .b.'I'X ifion. Fcnator Domimi V ilocribcd a |in*liniiuary ver.-ioti of jt> (h)(5) as flllll v ? 'What we were trving to dr* itt th* Inll . . . wn to ^nv that when w* are deahrii; with fovie aio'iif* or pin -ival aci-nl', tee ovtrhf lit lake eitch jtejn aj arc fnixil'le omt f>rnr!i<nl In provide an atinopliere within which a jtef lon's health or sifety wmM nut t afT.^tml, Unfortunately, we had Midi h .('!f-i!rfi a111pi.ltr-y iu all in.-t.mr^ Ante, r.t d'.l If it did. CVEfA rcgiilatiuut wi>',M napair the ability cf American ii.du.'trios to roinpetc effectively with forpigu busi'^'v-os .and to provide employment for Ann-ru-an workpr.': I tharefore would not lightly ft.ssi.tme that Congress in tended OSHA to require reduction of health risks found to be significant u.-/i*n?vr it also finds that the affected indus(ry can bpar the costs. Fee supra, nt 5, u. 4. Perhaps more significantly, however. OSHA's interpretation of SCfblf.'O would force it to regulate m a manner inconsistent with the important health and safety purposes of the legislation we construe tuday. Thousands of toxic substances present risks that fairly could be dinractemed as "significant.1' Cf. nr.te, tit J3, n. 51. Even if OSHA succeeded in selecting the grav est risks for earliest regulation, a standard-setting process that ignored economic considerations would rpsnlt in a serious misalloeauon of resources and a lower effective level of safety than could S>e achieved under standards set with reference to the comparative benefits available at a lower cost.' I would not attribute such an irrational intention to Congress. In this case, OSHA did find that the "substantial costs" of the benzene regulations are justified. See supra, at 3. But the record before us contains neither adequate documen tation of this conclusion, nor any evidence that OSHA weighed the relevant considerations. The agency simply an nounced its finding of cost-justification without explaining the method by which it determines that the benefits justify the costs and their economic effects. Xo rational system of regulation can permit its administrators to make policy judg ments without explaining how their decisions effectuate the purpose* of the governing law, and nothing in the statute authorises such laxity in this case." 3ince neither the r.irborne concentration standard nor the detmal contact stand* governing statute, I join the Court's judgment affirming ihft judgment of the Court of Appeals.* * * * prttvi<lmB lhat aiouiip |V 1 would In* a.-.-urtd tliat iv* uii* would luvt* .> li.i/_tr*l. It iva. an umrah.-ts*- standard. . . L*-xi.-lative Hi-tnry, .iijfirn. at Jkrj ft*rnt*li;i.-i.- adlr*l). Svtiiier Dutniiiiik'' objivtion to tin- "unrrali-iii'1' -t.ir*.l nf tki* fnre* ntntvef uf l'i (bH5t d*if' mil imply that lie tlii*iijlit l ('i) uf tl>f \rt l.icki'd 'Hli't.nitive wntritt. S<-e p.*4, at ---- (MAUi-vt^i.t,. .! . di-.'iuit'iiC*). Th ?'n.iti>r b >rilJv uui lil bavi- prupo-cd tliat t>(b|(5) l>* ilt'i-lnl en tirely. ."it* antr, at 3>. if In- luul nut Ihmit'lit that other Mitioua of the Act required lu-dtb rejpikittiMw llvit were ri-a-onabU* anil pracfiiMl. * Cnngrew has a.^aiitiHsI OSHA an extmnelv tlitheuh and eontplev task, nnJ (he tpiiiLiite .iffunbil OSHA l- tun.-iiltrably l*->s tlv.ux nWar. T! ageticv'y priman- rv'iwn.-ibililv, rcdei ti'l in it> htlr, is to tnmimwc liealth ami safety ri-lc* in the workplan* A'ct die iH-iinomic liealtlt <>f nttr Imhlv iiKiii>inali*it ,-ueiHv n-ti'iiri'* a Itivli rare of riiiploMiunt and an aihqu.uc re-|wnee to ini'rr*asinj{l>- vijcuruite fureijpi coiM|><*ii(i<>n. There ran le lit(l doubt (hat Conin'" inn-ndetl OSHA tu ImI.iihc ri ^niaMv the .-ovirt.il inteivv( in li*-.dtlt and safety with (lie often eonllnting jjimI of maintauiing a atrrmg national eionouiy. f For exampte, OSHA'? reading of | li (b)(5) ryiild force the depletion of tin indiL'try'i rcsonree? in an effort to reduce a single rt'k by some qteciilntiv* amount, even though other significant ri.-ks remain nnrejrnl.it'd. The deiwiurt (hat cixts ju-tiiy benefit? is largely a jkiIk-v jndgmrnl delegate*! to OSHA bv Congress. When a court n-v ieivs iiu b judgments under ths "siiltstantial cvidt'iice" .-lamiard maiidatnl by 2A U. S. C. 055 (f), the court mud dv(ermttto whether the rt-qwiwibl* agency lun 'rnrefully kk-ntififi.ilJ . . . the re.i.-oa? why fit! cIiihxmi* to follow one course mfher than another" iu the must. reii.*oiiabk` itirlhod of effect a iting (h put)9e4 of the oppUcable law. fm!'i*riul f.'iiiiut Drpnrtrrte'it v. liodgtoH,----- U. s. Apjj. D. C.----- , W F. 2d 4t>7. 473-47tt (1974) Sime OSHA fiiilrd to identify it.? rert-ins in this case, I etpru* no opinion as to the standard of review that nuy be appropriate in other situations. 7* 10*80 Published by THE BUREAU OF NATIONAL AFFAIRS. INC.. WASHINGTON. D C. 20037 MCD 000012817 CURRENT REPORT Mh. J' sTICE RtHNyi isT, roiu i;r:.::^ <,. t1-- judgment, The statutory provision at tiie center of the present con troversy, Sft (b)(5) of the Occupational Safety an'! Health Act of lyrO, states, m relevant part, that the Secretary of Labor ". . . in promulgating standards dealing with toxic mate rials or harmful physical agents . . . shall set the stand ard which mo>t adequately assures, to the extent jeo.'-ble, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of lus working life." 29 U. S. C. Cu5 (b)(3) (emphasis added). According to the Secretary, who is one of the petitioners herein, G (bH5) imposes upon him an absolute duty, in regulating harmful substances like benzene for which no safe level is known, to scf the standard for penni.-silde exposure fit the lowest level that "can be achieved at a bearable cost with available tcrhnulngy." Hnrf fur the Fidt'f.il Parties hi. While the Sc'Ti-lary dues nut attempt in refine the concept of ``h1.*:,ruble rust" he apparently believes that a proposed ,-t a 11dan I i- reonun n- nlly tce'iMe -i i foot; a* its impact " ill Dot be such to threaten the Himneud welfare of the affected finn nr the general economy,'' -Id Fed. Hog.. at -*>93!). ni_-r]ioiident leply, and the lower court agreed, that |> ti i b)I >I must be read in light, of another provision in the same act. 5 t ifti, which define* an "occupational health and safety standard'' as a standard whirl* requires conditions, or the adop tion or use of one or more practices, means, methods, operation.?, or processes, reasonably necessary or appro priate tn provide safe ur healthful employment and places of employment.." 29 L . S. $ G.V2 (3b According to respondent-. 0 (bjto>. as tempered by $ 3 (3), requires the Secretary to cieiiioust'ate tluit any particular health standard is justifiable on the basra of a rough balanc ing uf rusts and benefits. In considering these alternative interpretations, my col leagues manifest u good deal of uncertainty, and ultimately divide over whethu the Secretary produced sufficient evidence that the proposed standard fur beiucne will result in any appreciable benefit? at all. This uncertainty, I would suggest, is eminently iu.-libid t-inci- I believe that this case presents the Court with whal has to Iw one of the most difficult issues that omdd confront a rleri-ion-mnker: whether the statistical possibility of future d<Mtbs should vvr be disregarded in light of the economic ii-i- nf lucwuting those 'leaths. I would id-o suggo*! rb it fl.u nidi'lv varying positions advanced in the briefs id tin- panic:- and in the opinions of Mh, Jl'STCCS Sim s- Th f'niKi h stu>.. Mu. di-HCK. Fow'ki.l. and Mh. li siirr Mu:.-mu. demonstrate. primp?* lu'tler than any J u i. t! the ;Mvcrnuu.*tit;d IkhIv best suited and imr( i.bilg-.li fl to make fb- choice roubnnting us in this case, has impoipctly delegated that choice to the Secretary of Labor and, derivatively, to this Court. 179 In Ins Mt-cuml Treatise uf Ct\il Government. pubii.'lie-i in L690, John tojcke wrote that "The power of the legislative, being derived from the people by a positive voluntary grant and institution, can be mi other than what that positive grant conveyed, which being only to make laws, and not to make legislators, the legislative con have no power to transfer their authority of making laws and place it in other hands." 1 Two hundred years later, this Couit expressly recognized the existence of and the necessity for limits on Congress's ability to delegate in? authority to n-prt>>,iitative.s of the Fx'-ruhve Branch: "That Congress cannot delegate legislative po.vr to the President is :i principle universally recognized as vital hi the integrity am) maintenance of the system of government ordim-d by the Constitution." Field v. (.'fur-., [43 (/. $. 649 tiCiJ i 1>C*2).* The rule against rti'legatinu of legislative power is not. how. ever, so cardinal a piincipl` as to allow for ia; twr-.-piirn. The Framer: of the Constitution were practical .-t:it'->inen, who saw that the doctrine of separation of powers was a two-scFc: coin. Janies Madison, m Federalist Paper No. XI.VII. for example, recognized that v. hilr the division of authority among the various branches of government was a useful principle, the degree of Separation winch the maxim requites, as e*sent:nl to a free government, ran never in practice be duly maintained." This Court also has recognized that a hermetic sealing-off of the three branc.hes of government from one another could easily frustrate the establishment of a national government capable of effectively exercising the substantive powers granted to the various branches by the Constitution. Mr. Chief Justice Taft, writing For the Court to Hampton Co. v. United States, 27ft U. 8. 394 (1923). noted the practicali ties of the balance that has to be struck: "[Tlhe rule is that in the actual administration of the government Congress or the Legislature should exercise the legislative power, the President or the State executive, the Governor, the executive power, and the Courts or the judiciary the judicial power, and in carrying out that constitutional division into three branches it is a breach of the National fundamental law if Congress gives up its legislative power and transfers it to the President, or to the Judicial branch, or if by law it attempts to invest itself or ha memhers with either executive power or judi cial power. This is not to ray that the three branches are not co-ordinate parts of one government and that each in the field of its duties may not invoke the action of the two other branches in 50 far as the action invoked shall not be an assumption of the constitutional field of actm-' of another brunch. In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must he fixed according to common sense and the inherent necessities of the gov ernment*! co-ordination." 27ft l'. 8., at 40ft. During the third and fourth decades of this century, this Court within a relatively short period of time struck down '.I. I.oeki. S-roiul Tn-.itb** F Civil f!irrnmrnt * T41 (!600). In th* same In ati>i\ Loikr also wrote* tiiat "Tlitr li.-gi.-latv? raunot transfer the power of m.ikfni; l.i# to any other hand?; for it being but a delegated pmver from the p-ople. they who havr it rannot jw-a it over to others" /6irf. * As furly ns 1813, 1hi* Conn had r>ni*i<!i>rert and rejected an .ifcum-nt that .a statute >nithnrizing the I'r--ulfni j terminate a trade 'mb nn <,n Britain and Knni'c' it tho.-c two 11.cions ceased violating "the iifiitfj' cutnnifrre 0! the United 3l-it*-*" delegated too much <It-etvt*w to 1'<e Lxf'ttive Brandi. Seas TAr t{'ig Aurora, 7 Cranch 3o, 3.-d, ?,>(>, : vi (1SI3K 7-10-80 Published by THE BUREAU OF NATIONAL AFFAIRS. INC., WASHINGTON. DC 20037 MCI) 000012818 180 several acts of Congrev* t.u tft.* ground, that they cx'-p^lpd tin* authority nf Oonsrri'ss under tho ('mnmeree Clause or under the ituudrk-g.il ion pnmiplr of separation of powers, 2u.a at the same time struck down stale statutes because they violated "substantive" due pieces* or interfered with inter state commerce. See generally R. H. ,Jackson, The Struggle 'or .Judicial Supremacy 4S-- 1UH (1949). When many of these decisions were later overruled, the principle that Congress could not simply transfer its legislative authority to the execu tive fell under a cloud. Yet in my opinion decisions such as Panama Refining C`u. v. Ryan. 201} I*. i$. 3R*S (1935), suffer from mine of the excesses of judicial policymaking that plagued some of the other derision* of that era. The many later decision; that have uphold congressional delegations of authority to the Executive Branch have done so largely on the theory that Congre nmy \> i?h to exercise its authority in a particular field, but because the field is sufficiently technical, th sr-mnd to be covered sufficiently large, and the Member* of Cvncrpss themselves not necessarily expert in the area in which they choose to legislate, the most that may he asked under the separation-of-powers doctrine is that Congre.vs lay down the general policy and standards that an.mate the law, leaving the agency to refine those standards, "fill in the blank*" or applv the stn ud.n ds to particular cases. The.-o decisions, to my mind, simply illustrate the principle stated more than fifty years ago by Mr. Chief J nstice l aft that dele gations of legislative Authority must ho judged "according to common xense and the inherent necessities of the governmen tal co-ordination.1' 276 V, iv. ai 406. Viewing the legislation at issue here in light of these prin ciples. I believe that it fails to pas* muster. Read literally, the relevant portion of SGfh}{5) is completely precatory, admonishing the .Secretary to adupt the moat protective stand ard if he can. hut excusing him from that duty if he can't. In the case of a hu/aiduu.-* .substaiioe for which a `Vafe" level is either unknown or impractical, the language of $0(1mG) gjvTs the Secretary absolutely no indication where on the con tinuum uf relative >al'ety he should draw his line. Especially in liaht of the importance of the interests at stake. I have no doubt that the piuvisiun at issue, standing alone, wuiild violate the doctrine against uncaiiali/iod delegations uf legisla tive power. For me the remaining '|uestiuo. then, is whether additional 'tandaids aie ascertainable from the legislative histoiy or st ,l ii toi v context of > l> (brio) Or, if not. whether smh a standardlm- delegation was justifiable in light of the ''inherent iicce.-situV of the situation. If One of the primary sources looked to by this Court in adding gloss to an otherwise broad grunt of legislative authority is the legislative history of the statute in question. The opiniii,> of Mk. li srn.K St>:vkn*sand Mil. Jt.sritK Maks hall, however give little more than a tip of the hat to the legislative origin; of $ 6 (b >1 o). Such treatment is perhaps understand able, since the Icgidativc hi.-tory of that section, far from shedding light on what important policy choices Congress w as making in dm statute, gives one the feeling of viewing the conKt'>?;ional purpose "hv the dawn's early light." The pncursor of 5 6 Chi 15) was pinned in the Occupations! Safctv ik Health Act of 1971' whde that bill was ponding in the House Committee on Education and Labor. At that time, the section read: "The Secretary, in promulgating standards under this subsection, shall set the standard which most adequately asMiio*. on tin* bud# nf rim l>e-t available professional evi OCCUPATIONAL SAFETY & HEALTH REPORTER dence. that no employee will suffer my impa'nneut uf hej 1 tli. or fiiint miiiil capacity or diminished life exnert- I':1:'. if = -1rii .mpldveo regular exposure to the ..a ' " !i: >ith lie -uch standard for the pem.d of his Lcgirlativp Historv Occupational Safety .V Hesith Art of 197U. 92d Cong. 943 {hereinafter I.eg. H-t.h r.uee aspects uf tins original propo.-jl are particularly sig nificant. Fir'd, and peilinps most niijxirtantly. as originally in t ri)dm-t't| th-- pn/viMon contained no feasibility limitation, providing instead tluit the berrelaiy "shall set the standard which most adequately assures" that no employee will suffer bairn Second, it would have required the Secretary to pro tect miipiny re.x fi oin '`any" impairment uf health or fuuctivin.il rapacity. Thin!, on its face, although perhaps not in its intent, the provision applied to both health and safety stand ards promulgated under the Act.5 Three can bn lit do doubt that at tins point m its lournev thrn'.'i'h C oiigri'*;. > 0 (bj(5) would have required the Secii-tjry, in regulating toxic Mibst.im-* s. to set the pcrmb-sblt* level of exunv.'ie at a safe level or, if no safe level was known, at /cro. When the Senate Committee on Labor and Public Welfare ('on-iJen-cl :l provision identical in almost all re spects to tile llouse veision. Imwwt r. Senator davits objected that the provision m question "ought be interpreted to require absolute Inalth aw] safety in all eases, regardless of feasi bility... Leg. Hist. 197. ?ee also id,, at 418. The Commit tee therefore amended the bill ta provide that the Secretary "shall set the standard which most adequately and feasi bly ' assured that no employee would suffer any impairment of health. Id., at 242 (emhpasis added). The onlv addi tional explanation fur this change appeared in the Senate Report accompanying the bill to the Senate floor. There, the Committee explained that . . standards promulgated under $ 6 (h) shall repre sent feasible requirements which, where appropriate, shall be based on research, experiments, demonstrations, past experience, and the latest available scientific data. Such standards should be directed at assuring. r fnr ns possible, that no employee will suffer impaired health or functional capacity or diminished life expectancy, by icasrm of the exposure to the hazard involved, even though such expo sure may be over the period of his entire working life." Leg. Hist. 147 (emphasis added}. Despite Senator davits' inclusion of the words "anti feasi bly" in thr provision, participants in the floor debate immedi ately characterized $f>ihi(.i) as requiring the Secretary "to establish a utopia free from any hazards" and to "assure that there will not lie any risk at all." Leg. Hist. 480--481 (Re marks of Sen. Dominick). Senator Siixbe stated: "When we corne to saying that an employer must guar antee that such an employee is protected from any possi ble harm. I think it will be one of the most difficult areas 5 T?i'['MidciiU nrifiii- I'i:iI, <!r-j>iir it* .eiitingly pi'Hfnl ,ip-ilir:i<<r>n. ' lie nnj;m.il icrii'/u ol $ li (It) i j) ;i m:illy ii-fi rr*l on] v in It !i m o|>;nj***tl to safety lt;iz.rib. S* Mncf fur lte-|>nni1-iii* MwAh. 3rt .support of thij priqm-iiinn. they rile a portion of thr lvil.ilive In.-1ory wlarc die Hi>u<e Cnmniiirrr on Fducation ,nnl Labor stated lh.it the propositi version of would apjttv when thr ftrcrrtnry #rt aw "oernpubonal hfi'lh rlLr^idMivc Hitory, Ornifi.nional Safely A Hmlth Art of 1H70,52rl Cuog, (hereinafter I.eg. Hiel } 7*10-80 Published by THE BUREAU OF NATIONAL AFFAIRS. INC. WASHINGTON. DC 20037 MCD 000012819 CURRENT REPORT ara 'ting to have to ascertain ... I believe the t.rnis that we are passing back an.I forth are going to have to be identified.'' I.eg. Hist.. 3t 345. In re?pon?e to thp concerns. Senator Dominick introduced a substitute for the propos'd provision, dploti: g the -entence at issue here entirely. Ho explained that his amendment would delete ". . . the requirement m Sbfblfuj that the Secre tary will establish occupational .-airly and health stand ards which most adequately and fea>.bly ass me to the extent possible that no employee will softer ant/ impair ment of health or functional capacity or diminished lift* expectancy even if the employee has regular exposure to the hazard dealt with by the standard for the period of his working life "This requirement is inherently confusing and Unrealis tic. It could be read tc nu, dre the Secretary to ban all occupations in which thee*.- lemains some risk of injury, impaired health, or life expectancy. In the ra.-e of all occupations, it udj lie ifii; -dik* to elimijiatr alt risks to safely and health. Thus, ihr* present criteria could, if literally applied, close every business in this nation. In Addition, in many cases, the standard which might most 'adequately' und 'feasibly assure the elimination of the danger would lie the piohibifinn of the occupation itself. "If the provision is intended as no more than an admonition to tin- .'wei'd.iiy to do hi? duty, it seems uiuieces-.H y and con'd, if deemed aih i*abte be included in the legislative history " i '.sis in original.) Leg. ffi-t. :m? Eventually. >c;utor Diimimik and his supporters settled for tin* present language ot i <'[))( j}. This agreement re sulted in throe changes hum the original version of the provi sion as umend"d by Senator .lavitj. First, the provision "'as altered to state explicitly that it applied only to standards for "toxic matetials or harmful physical agents," in apparent contrast wit!) sutVtv standards. Second, the Secretary was no lunger admonished to pioteot employees from "any" impair ment of their health, but rather only from "material ' impair ments. Third, and most, importantly for our purposes, the phrase "most adequately and feasibly assures'' was revamped to read "n.ost adequately assures, to the extent feasible!.]" IVc have been presented with n number of different inter* predations of this shift. According to the Secretary. Senator Dominick recognized that In* could not delete the seemingly absolute requirements of $0ibHo) entirely, and instead agreed to limit its application to toxic materials or harmful physical agent? and to specify that the Secretary was only to protect employees from material impairment cf their health. Significantly, the Semtarv asserts that hi mandate to set such standards at the safest level technologically and eeoiii>niir:11 v achievable remained unchanged by the Dominick Amendment. According U> the Secretary, the change in lan guage from "most ,u Ii quately and feasibly assures to "most adequately ;suuv?. to tile extent feasible." represented uiily a slight shift iii finplui-ls. perhaps suggusting "a preference for health piotection nwi cost.'' Brief fur the Federal Parties 7;.. See also /,, at Mu Jt .si'ii i M vksHai.i. mills this history quite differently. In his urn rhr i err ion of > h 1b i< .">) that reached the Senate tluor dd nut 'Y!e;uly eiubodyl | the feasibility requirement" and thus ua -uundlv erititi/ei| ns being unrealistic. See /unit, at Ii. It iu* only a* a result nf the Hour amemlmenls. 181 'I'M-sl .1-b .pi.,i, :\ ------ Ii- t'u- c \'n it fr.t-ib.r. dint 'h-; ! ('l 11 v ill II i\ w.i- ai.liioi I d til H'l'ct a '-r.uid.u'l if ,t P1 > " ' d I i 1, i ! ' i .i d x 1 11 1 i III i. a,a '.111 \ i ulr.iSi-( ,i 1 :o >i .a l .d i, o I Itr-pe; d"i a- ra.-t \ i t a elm d ;g!; t oil t h t--i* event-, feca-ing upon a few phn's in tlm logi-la 11\u Insterv where the words Tra-il de ai.d mab'r" in n- used moie nr less inter changeably. See I Cg 11 i?t. 3N- 4b ; I 1." foi ig KeC 2 2al7 ( A Ug. b. buiU) i itatemml ut Sen. .I.ivit.-i ft is their contention that w heii (`in ,re-s s.nd " ti .1-i'de. ' it meant CM?t ju?tiRed. Acci n ding to r' -p> an |. e |% u !i.i acne m this ng.inl w ith the Seneiai v. the meaning of the fra.-ibility rtrtiuir<-ini-nt did not change -iib-tant-ally hi twxen tlm \ei-u>u that left the Senate Committee on Labor and Public UVlfate and the version that was nltmi.iteK adopted ,1- jiatt nf the Art To my miml there an -ovi-ial le--mis to be gleaned from tin- somewhat ervptie legislative hi-torv. Kir-t as pointed out by Mu, .Ji -Tin-. Mmi.-hmi.. to dm extent that Senator lavit-. Senator I>ummnk. and other ini'iiiltei s ueio worried about imputing upon tlm Seei etaev the impossible burden of nsftui mg absolute safetv. tin y did not view $ 3 (S) of the Act as a limitation on tluit doty. I therefore find it rlitho.ilt to a<uup( the coindiiMoii of tlm lower court, a? embellished by ro-pniidont- that t 3 1 S I ;ii`H ;t a general check upon the See re La rv s dn tv under > fi 1 Ij ) I a' to adopt the mu-t protective standard feasible. Second, ami more importantly, t believe that the legislative history demonstrates that the feasibility requirement, as employed in 6lb)(5), is u legislative mirage*, appearing tn some members but not to others, and assuming any form desiied by the beholder. I am unable to accept Mtt. Jt stick Marsh m.l's argument that, by changing the phrasing of 16(b)(3) from "most adequately and feasibly assures" to "most adequately assures, to the extent feasible." the Senate injected into that section something that wasn't already there.* If I am correct in this regard, then the amendment intro duced by Senator Javits to relieve the Secretary of the duty to create a risk-free workplace loft Senator Dominick free to object to the amended provision on the same grounds. Per haps Senator Dominick himself offered the aptest description of the feasibility requirement as "no more than admonition to the Secretary to do bis duty. . . I .eg. Hist. 367. In sum, the legislative history contains nothing to indicate that the language "to the extent feasible-' does anything other than render what had been a clear, if somewhat unrealistic, 4 The legislative hi.-rorv indu-ati-e `irmigtv thru Senator Dominick hmi- -elf :mr lirle, if any, difference between the phri-t* "mo-i adequately and feasibly .is.-iuW and "mn.-i adequately nature* to the extent fea-ulile." In the coon* of his earlier attempt to delete the tir>l -ontenre of 5 6 ib) (3) entirely, he pnraphfa.n-d the muimcndi-J v*r.-iun nf tliat .-evtnm .1* requiring the Secretary tn promulgate .-tamLinb .that ''mo>t ndcvpatelv und fesisihl)' n-.-urc tn thr itlmt pmsible" that rn employee wouM ,-nlT**r harm. See Leg. HFt. IW7 li'inpl'ii-i- added). Unless Senator Potiiinn'k found .1 -iginhcatit ditfernne Ikiwccii the wurrtx "ptijaible" and ''feasible." it is <b.ir that there i> little diifirelics* bellViX'll Seiutnr Dotnui" k'? per ception nf what the m*amrnth-d -i-cUim ni|iiirn! in the way of feasibility and whai that >e*,tir>n rKtoired ifti-r hi.- jiwiidmetu. ^Se.tiwi 211 (v)(2l(A) atid (Bt wf the n**an Air Art, ns s>m-d'H m Dec. HI. IftTO. atiihorizc- Ihp Fnviromnen'al Protection Agemy to ri-git- lafe vonlrn), or prohibit automotive fuel additive* after "iu*!.idiTinnii of other UcKitolugiatihi or ermuimiLtillij /etuiVde mean.v of achieving emi-Toa stntidardn . . 4 I'. S. C. f 7545 (c) (2)(A) (emphasi* adri-alj 7-10*80 Published by THE BUREAU OF NATIONAL AFFAIRS. INC. WASHINGTON. DC 20037 MCD 000012820 182 OCCUPATIONAL SAFETY & HEALTH REPORTER standard large!'-'. :f nut entirvly nr-'-t'atnry. Thr-re is certainly nothin* to indicate that ih<-e u ords. as used inab;b)(j).are limited to technulc-gical and "<.unonnc frusibility. When Congre.-3 lias wanted to Imnt the n-nct-pt of feasibility in this fashion, it had said so, as is evidenced in a statute enacted the saint* week as the provision at issue he-red T also question whether the Secretary wants to assume the duties' such an interpretation would impose upon him, In this case, For example, the Secretary actually declined to adopt a standard lower than 1 ppm for some industries, not. because it was economically or technologically infeasible, but rather because "different levels for different imlustries would result in serious a lninu-tfative difficulties.'' Appx. to Pet. for Cert., at ISSa See ai-M> 'mte. at 39-4 ff (plurality ot>imOnt. If S6fb>(5) authoi i>o> the Secretary to u-j'-vt a more urnrei-tive standard in the uiterv-t of ndmiuistraMve h-uMi-imy. I have little doubt that he could reject such s\iudufds for any reason whatsoever, including even political it-as.bilicy. TII Iti prior cases this Court has looked to sources other than the legislative history to breathe life into otherwise vague delegations of legislative power. In American Power d- Light Co. v. SEC, 329 L\ 3. 90. 104 ''1946b for example, this Court concluded that certain seemingly vague delegations "derive[d] much meaningful content from the purpose of the Act, its factual background and the statutory context in which they appear.'* Here, however, there is little or nothing in the remaining provisions of the Occupational Safety A Health Act to provide specificity to the feasibility criterion in 5 6 (b) (5). It may be true, as suggested by Mw. Justice Mahshall, that the Act as a whole expresses a distinct preference for safety over dollars. But that expression of preference, as I read it. falls far short of the proposition that the Secretary must eliminate marginal or insignificant risks of material harm right down to an industry's breaking point. Xor is this a case like Liehtcr v. United A'frtfei. 334 lT. S. 742. 783 (1948), where this Court upheld delegation of author ity to recapture "excessive profits'* in light of a pre-existing administrative practice. Here, the Secretary's approach to toxic substances like benzene could not have predated the enactment of G (b)(5) itself. Moreover, there are indica tions that the postenactment administrative practice has been less than uniform. For example, the Occupational Safety A Health Review Commission (OSH11C), the body charged with adjudicating citations issuer] by the Secretary under the Act, apparently doe> nut agree with the definition of "feasibility,'* advanced in this case by the Secretary. In Continental Can Co., A BNA OSHC 1541. 1976-1977 CCIi O.SHC * 21.009 (1976), the Commission reasoned: "Clearly, employers have finite resources available for use to abate health hazards. And just as clearly if they are to be made to spend without limit for abatement of this hazard their financial ability to abate other hazards, in cluding life threatening hazards, is reduced." Id., at 1547, 1976-1977 CCH O.'HC, at 25. 256. Furthermore, the record in this case contains at least one indication that the Secretary himself was. at one time, quite uncertain what limits 0(b)(5) placed upon him. In an nouncing the proposed 1 ppm standard and discussing its eco nomic ramifications, tin* Secretary explained that "[wjhile the precise meaning of feasibility is not clear from the Act, it is OSHA's view that the term may include the economic ramifi cations of requirements imposed by standards." App. 133a. This candid and tentative statement falls far short nf the Secretary's present position that economic and technological considerations .set the unly limits <m Ins duty to adopt the mest protective standard. Finally, as noted earlier, the Secretary has failed to apply his present stringent view uniformly, re jecting in this case a lower standard fur some industries on the grounds of administrative convenience. In some cases where broad deleg;,turns of power haw been examined, this Court has upheld those (U-logutiona because of the de-legatee's residual authority over particular subjects of regulation. In Unitrd Staten v. f'urti'ss-lt'riy/if Export Vorp., 299 l . H. 304 ( 193d;. this Court upheld a statutp authorizing the President to prohibit the sale of arms to certain countries if he found that such a prohibition would "contribute to the reestablishment of peacef.]" This Court reasoned that. ;n the area of foreign affairs, Congress "must often accord to the President a degree of discretion ami freedom from statutory restriction which would not be admissible where domestic affairs alone involved.'* Id., at 320. Similarly, C'nitcd Stilt?* v. Maznrie, 419 U. S. 544 (1975). upheld a broad delegation ' authority to various Indian tribes to regulate the iiitroduc-.:or, of liquor into Indian country. According to Mmune. irrntat.cus on Congress* authority to delegate legislative power ire "les-s stringent in coses where the entity exercising the d^gated authority itself possesses independent authority over the subject matter." Id., at 556-557. In the presenfease, however, neither the Executive Branch in general nor the Secretary in particular enjoy any independent authority over the subject matter at issue. Finally, as indicated earlier, in some cases this Court has abided by a rule nf necessity, unhokling broad delegations of authority where it would he "unreasonable and impracticable to compel Congress to prescribe detailed rules" regarding a particular policy or situation. American Power dr Light Co. v. SEC, 329 l'. S. 90. 105 (194`i). 3ee also Bult/iuld v. Stranahan, 192 U. S. 470. 496 ( 19941. But no need for such an evasive standard as "feasibility" is apparent in the present case. In drafting 6 (b)(5), Congress was faced with a clear, if difficult, choice between balancing statistical lives and in dustrial resources or authorizing tin* Secretary to elevate human life above all concerns save massive dislocation in an affected industry. That Cimgrc-s recognized tin* diffi'-ultv of this rlioivi- is r-h-ur from the previously note,I it-uurk of Sen ator Saxbe, w!h> staled that "When w** come to saying that an employer must guarantee that such an employee is pro tected from any possible harm. I think it will be uiir ot the most difficult areas we arc going to have to ascertain.Leg. Hist. 345. That Congress chose, intentionally or unintention ally, to pass this difficult choice on to the Secretary is evident from the spectral quality of the standard it selected and is capsulized in Senator Saxhe's unfulfilled promise that "the terms that we me passing back and forth ar-- going to have to be identified." Ibid. IV As formulated and enforced by this Court, the nondelegation doctrine serves three iin|>ortaut functions. First, and must abstractly, it ensures to the extent consistent with orderly governmental administration that important chuices of sueial policy are made by Congress, the branch of our government most responsive to the popular will. See .Irizona v. California, 373 V. S. 546. 626 (1963) (Harltm. J.. dissenting in part); United States v. Hobel. 3S5) l.\ S. 253. 276 (1967) i Bhkh san J., concurring in the result). Second, the doctrine guarantees that, to the extent Congress finds it necessary to delegate 7-10-80 Published by THE BUREAU OF NATIONAL AFFAIRS. INC. WASHINGTON. DC 20037 MOD 000012821 CURRENT REPORT 183 :uj !! nr it v. it provide- the rtf.:;. !;, l . f : h. i i bur. t v of w Ah an "intelligible principle" to guide the cwv'.-p A the t-i.1 discretion. Sp Ilcirriptnn cc Co. v. C><tel 27'i L'. 55. ;;04. 109 ( 1923) : finrn>t;ii FY.m-i/h/ Co .. lionn. 293 L". S. 3>3, {.50 ( l'i3oC Third, and derivj'iv uf -h- t!ic doctrine ensure5! that courts charged with re- e >!..^ th- **xcrure of delegated I^eisiative di.-cr'dam \c gij -;j j;ji- q,* test, that exer cise against. j j<;evt:iinut >'e standards. >t*' A r zn v. CnUjifma. supra, n t 62o i Harlan. T. t mu in part >: American Pon ?r it Ln/Jir C" w hi'1 L. >. 'jO iPo i ,;4o I. I bet lev ** '.nr iegi-l.i tiun at j - - . t h-nv ' ;ii i- mi all three con m Is. The decision whether the law of dnu.mih.ns return?; nhuu'd have anv place m the regulation r.f toxic substances is qum- tc.-sentially one of legislative policy. For (.'ougress to pus? that devesiuu on to the Seen tniy in the manner it did violate?, in my mind, .John i.ucke's cuvr.it--reHectrd in tin* cu;>- cted earlier in this upmiim--that Icgi-luturrs ate In make bus?. not legislator:*. Nor, as I think the prim- di?cu?-imi amply demon strates. do the provisions at issue or their legislative history provide the Secretary with anv guidance that might lead him to his somewhat tenutive conclusion that he must eliminate exposure fo benzene as far as technologically and cromnnnally possible. Finally, l would suggest that the standard of "feasibility" renders meaningful judicial levirw impossible. We ought not to shy away from our judicial duty t<> invali date unconstitutional delegations of legislative authority solvW out of concern that we should thereby reinvigorate diseicdited constitutional doctrines of tin* pre-Xcw Deal era. If the non- delegation doctrine has fallen into the same desuetude as have substantive due process and restrictive interpretations of the Commerce Clause, it is. as one writer has phrased it. "u case of death bv-association!. J" J. H. iliv. Democracy and Dis trust. a Theory of Judicial Review 133 I lhSO). Indeed, a number of observers have suggested that this Court should once more take up its burden of ensuring that Congress does not unnecessarily delegate important choices of social policy to politically unresponsive administrator;:." Other observers, as might be imagined, have disagreed.' If \w- are ever to roshoulder the burden of ensuring that Congress itself make the critical policy decisions, this is surely the ease in which to do it. It is difficult to imagine a more obvious example of Congress simply avoiding a choice which was both fundamental for purposes of the statute and yet politically so divisive that the necessary decision or compro mise was difficult, if not impossible, to hammer out in the legislative forge. Far from detracting from the substantive authority of Congress, a declaration that the first sentence of 0(b)(5) of the OSHA constitutes an invalid delegation to the Secretary of Lulwr would preserve the authority of Con gress. If Congress wUhes to legislate in an area which it has not previously bought to enter, it will in today's political world -S.-f .1 II. Kty, limiwt.nv :in<t ))i.-ini'.i. .. Theory >*r .bi'ln -.l Kcvewv Ul-m iln.-Hi; .1 l> > n i Uni.in, Cri.-i.- .m*l I.vijlr 'rn.i.-> . )>* Adiim-Tr;>- !iv> I'rnK ss .mil Ami-fi'.m t`>uvi*nuii in "J--U4 (Hum; T. J. I>iwi, The I.tul of I.ilw-r.ili-iii: Pli <'i-j-v. I'l.lirv, ..ml tb<- Cb*i< I.f Pnlilir Anlliuriiy lJU-llU. llipniiil |)iM-r*ti*ni:iry bi-tire. SI Yale I, . J .'.75, o-vj-.W (l'CJ.. Wrii'i-lliTji in ............... .. Wa-hirgmii l'n-t. Ni'V. Ii. p AH*. mA I '!' W t) 1 ln,i;;!:i.-. t!o Vriinif Man JI7 l I'j74) 'K. (.'. U.i'.i*. I>i--ai iuMi.iii .In-tin* A Pn-limin irv Tln|inrv AU-51 SlfM.iri. Tin* IPlorri'uiuii .<1 Aim-r)'*;ni A.lmim-'r iiv* 1_iw, S.S II. irv I. Ut*v. I *',*(, p.*i;M>i"7 i lri7M ff .1 itfi*. Tin: UIu.m'Hi of rhe hlivil Ailimni-iriti.'ii. vi H ir f. Tfi**- U'.i>, n a7 tl'Cai u:rluubte*dv run mto oppi'-icmn no matter \o;v lIih le^ijl.itmn ii furiruilaled. Bat that is the very e;.-erce of legislative authority under our system, (t is the hard choices, and not the filling in of the blanks, which must he made by the elected representatives of the people. When fundamental policy de cisions underlying important legislation about to be enacted are to be made, the buck stops with Congress and the President insofar as he exercises his constitutional role in the legislative process. I would invalidate the fimt sentence of ^6 (b)(5) of the Occupational Safety ami Health Act of ll)70 as it applies to any toxic sub>t;uice or harmful physical agent for which a safe level, that is a le*. el ut w Ii inii "no employee w ill suder material impairment of health or functional capacity even if such "inpluyee has regular exposure to [that hazard | for the period of his working life! 1' is. uccoiding to the Secretary, unknown or otherwise `infeasible.1' Absent further congiessional acliuu. the Scop'tjry would then have to chouse, when acting pursuant to K U f h) I 5 >. brtw een sotting a safe standard or set ting no standard at all." Accoi dingly, for the reasons stated above. 1 concur in the judgment of the Court affirming the judgment of the Court of Appeals, Mu. Jvstick Mah.?hall, with whom Mh. Jcsricc Dhsinnam, Mn. Jrsnct White, ami Mh. JnvricE Blackmon j*ain, cli.vspntiug. In cases of statutory construcliun, this Court's authority is limited. If the statutory language and legislative intent are plain, the judicial inquiry is at an end. Under our juris prudence, it is presumed that ill-considered or unwise legisla tion will be corrected through the democratic process; a court is not permitted to distort a statute's meaning in order to make it conform with the Justices' own views of sumul social policy. See VTA v. Hilt. 437 U. S. 153 (l`J7S). Today's decision flagrantly disregards these restrictions on judicial authority. The plurality ignores the plain meaning of the Occupational Safely and Health Act of 11)70 in order to bring the authority of the Secretary of Labor in line with the plurality'* own views of proper regulatory policy. The unfortunate consequence is that the Federal Government's efforts to protect American workers from cancer and other crippling diseases may be substantially impaired. The lirst .-entente of s ti ib)<3l of the Act provides: "The Fecretury, in promulgating standards dealing with toxic materials or harmful- physical agents under this siibseclimi. shall set the standard whieli must adequately OSsurti. In the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or fumtioual capacity even if such employee he* redder exposure to the hazard dealt with by such -tuwdard for the period of his woik'mg li)e." 29 V. S. C. s* 055 < b )< o). Tn this case the Secretary if l.Jtor found, on the basis of subiturit!a! evidence, that < 11 exposure to benzriie create* a risk of cancer, ciiroinuaomal damage, and a variety uf uou- * Tliij piling would rmi Icivc .my ffert upon -1 .iimLioL-' ,,*n*vrning fosic -liS-t-mr(*M or liarxifnl . i< ffir 'v)ni|i -:.f- ,r.- Iti-.' npen eM.iei -ii-itaUrl.- )*tmiin!j.'jli-< ,-i- -n.iiimii.l vui--m*- -II:r 5U(nt, mir u;e*? the S'vrviury'.i autlioriiy to prormilpjfi- 'n-mer- gi-ney t*-nnx)r;iT> ' nixler (c). 7-10-80 Published by THE BUREAU OP NATIONAL AFFAIRS, INC.. WASHINGTON. DC. 20037 MCD 0000128 184 malignant but ;niii-iili.iliv dined disorder*, even ;it the lv\ f I fit 1 [ >| >111 ; . 2 ' no > _lfe !r Vd of l-\| )1 >-> iH` I u.a be*-l I ilovv 11 | f.'i) hen* fil iu the mrtn of lives would be derived frma the permanent 'ijmlui'd: (4> the number of lives chat would be saved cuu'd turn out to he eiclv-r si|lj->tuiiL:ul nr relatively small; (hi under the ptoent state of .scientific knowledge, it is impossible to calculate r.en n> a rough "ay die number of lives that 'ainiid be mi ved at '.east w itliont making assuinptinns that would appear aii'Mld tn inUch of tiie uudieal eouumi- iiitv; and (6,' trie standmd would nnt materially harm the financial condition nt t lie co\ ei m I industrirs. The Coul t does not set aside any of tln -e fmd.ngs. T!m>. it could nut he plainer chat tin; Secretary's decision was ;Lilly in accord with Ids statutory mandate "mu-.t. adequately fud usurefl . . . that no employee will surt'er material impairment of Iiealtli or functional rauacity. . . The plurality's cnuciuMon to the cuntriny is ba.-cd nil its interpretation of 2b l". S. (5 ti.VJ i S i. which defines an occu pational safety mil health standard as one "which requires conditions . . i ea.-onnhly necessary or appropriate tu provide safe or J11 ;d*'i r*11i employment. . . A; varuiiig to the plu rality, a standard :a not "reasonably necessary ui- appropriate" unless the Secretary is aide to show that it :> "at lea.-t more likely than nut. 1 ante, at 42. that tin- risk he seeks to reg ulate is a "significant" one. Und. Nothing in the statute's language or legislative history, however, indicates dial the "reasonably necessary or appiupriale" language should he given this meaning. Indeed, both demonstrate that the plu rality's standard Items no connection with the acts or inten tions of ('onirress and is bused only on tin* plurality's solicitude for the welfare of regulated industries. Ami the plurality Uses this standard to evaluate not the agency's decision in this Case, but a slrawman of its own creation. Unlike the plurality. I do not pnr|>uri to know whether the actions taken by Congress ami its delegates to ensure occu pational safety represent sound or unsound regulatory policy. The critical problem in cases like the one at bar is scientific uncertainty. While science has determined that ex|ni.>ure to benzene at levels above l ppm creates a definite risk of health impairment, the magnitude of the risk cannot he quan tified at the present time. The risk lit issue has hardly been shown to be insignificant; indeed, future research may reveal that the risk i* in fact considerable. But the existing evi dence may frequently be inadequate to enable the Secretary to make the lltiesliold finding of " iguifieuiiee1' that the Court require-? today. If so, the rnnsequenee of the plurality's ap proach would be to subject American worker4 to a continuing risk of cancer and other fatal diseases, and to render the Fed eral Government jKiwerlesS to take protective action on their behalf. Such iin approach `.wold place the burden of med ical uncertainty squarely on the shoulders of the Aiiicnrnu worker, the intended beneficiary of the Occupational Safety and Health Act. It i.s fortunate indeed that at lea.-t a major ity of the Ju-tiees reject the view that the Secretary is pre vented frum taking regulatory action when the magnitude of a lie-ilth risk cannot be quantified on the basis of current technique*. See ante, at 3--4 (Rowklu. J , eoni-iuring iu part and concurring in the judgment}; see also u;d, ut 45, and Ji. bd < phuality opinion ). Because today's holding Inis no basis iu the Act. and be cause the Court has no authority to iiupu*- its own regulatory policies on the Xation, I dissent. OCCUPATIONAL SAFETY & HEALTH REPORTER I Ccugiej,- enacted the Occupational Safety and Tle-dth Act as a rospoN-e to what "us characterized Uo "the gran hisiory of our failure to heed the occupational health need of o;:r workers.''1 The failure of voluntary action and legis lation at the state level, see Subcommittee on Labor of the Senate Committee on Labor and Public Welfare. r)2d Cnnz., 1st See9., Legislative History of the Occupational Safety und Health Act of U)70 (Comm. Print 1071) (hereinafter Log:?. History) 144. had resulted in a "bleak" and "worsening''1 situation in which 14,300 persons had died annually as a result of conditions in the workplace. In the four years preceding the Act's passage, more Americans were killed in the work place titan in the contemporaneous Vietnam War. S Rep. Xu. 01-1282. (list Gong.. '2d SesH.. '2 (1070>; Legi.v Ui.-tnry 142. The Act was deigned us "a safety hill of right.' for close to 60 million worker*." 1 Its staled purpose is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and tu pre serve our human resources.'1 2D L. S. C. S 651 ti>). See Atlci.< Hoofunj Co. v. OSHHC. 4:41) U. S. 44`2. 444-445 M!t77) The Act is enforced primarily through two provision*, first, a "general duty is imposed upon emplovers U> furniSii employment and places of employment "free from recn-rmcd hazards that are causing or are likelv to cause death or .:ei iou physical harm. . . 25) l*. .*4. C. 5654 (aiil). .Second, the Secretary of Lai Kir is authorized to set "occupational safety and health standards.'' defined as standards requiring "con ditions, or the adoption or use of one or mure praciue* means, operations, or processes, reasonably necessary or itp pruprdate to pio\ ide safe or healthful employment and pie * of employment." 25) U. S. (*. 5 652 (3). The legislative history of the Act reveals Congress' parti- lar concern for health hazards of "unprecedented coinpl* < r. that had resulted from chemicals whose toxic effects "arc . > now being discovered.'' S, Hep. No. 01-I2K2. 01 >l <'* 2d Ses< . 2 (1070); begin. History 142. "Recent - knowledge points to hitherto unsuspected cnus4*-an l -iar:oe-i*ins !>etweeu o(Tiip3)ioual exposures ami me . :.u- i'-cali-'i du-onic diwases--cancer. resj>ir:itory .nt--'--- * ailerg .,!).-arr i sense, uml others.Ibid. Membeis if 4 jr*--* made repented references to the dangers r arcumgetia am! to the defects iu our knowledge of t Operation and effect.* One of (he primary purpos**- * Act was to ensure regulation of these "insidiou* '* killers." 4 This special concern led to the enactment of th* ** - truce of 2D U. S. (M->tb)(o). which, as nutt-' * provides: "The Sech t.iry. iu promulgating standard* dc'' < to.\ic materials or harmful physical agents m sidiM-ctivui. shall -et tin- standard which most a assures, to tin* extent fca-iMe on the basis o( 1 F.cgi-1-itive History of the Oeriipalir-tuil ?;.(<-ty nm| H--:illh iii I Kerii'i-ol hr SetMlc.r Uilliiin -1 I, liiTe-iiafUf l.rgi* H'-l-,*- lti-|. \o. JI-12>2, UJ,| (.ong., iM 2 (}!)<)); t 142, 1 l.f-gi-. Hhinry i. s itip. N<>, tM-r.s.*, 'to ('..ug, 2.i ?.,.. > (iu:m, i., I.Vwpgi: Hi-iory 41.") iSn. U'iilmu.|; H H v Ul-I Ceng.. 2d S-- , 1'J (I'jpl), lagi*. Iti-u-rs M'.i; Legis. !l {l(r|>. K.inli), - L-jtv* lh-Oiry (Srn n.micW). 7-10-80 Pubhshsd by THE BUREAU OF NATIONAL AFFAIRS. INC., WASHINGTON. 0 C. 20037 MCD 000012823 CURRENT REPORT 135 av;,th.it m> > | .! - e wili >';."vr m.itf.r j] impairment uf health ur fiictitjinl fapat r.y even if m.'Ii employ yc 1 > n s regular expuMne to the** li.nai'l deatt with by .such >taiif!nri| for the pi-rind of his working life." Tins directive is designed to implement three legislative pur poses. First, Congress recognized that there may he sub stances that become dangerous only upon repeated or fre quent exposure.1 The Secretary was therefore required to provide protection oven front substances that would cause mate rial impairment only upon exposure occurring throughout an employee's working life. Second, the requirement that the Secretary act on the basis of "the best aiaiUd-le evidence" was intended to ensure that the standard-setting process would not be destroyed by the uncertainty r-f scientific views. Recog nizing that existing knowledge may be inadequate. Congress did not require the Secretary to wait, until definitive informa tion could be obtained. Thu> "it is not intended that the Secretary be paralyzed by debate surrounding diverse medical opinions.'' II. II. Rep. No. Oi-lL'fll. fUst Cong.. 2d Sess.. 18 (1D70): Leg is. History 848. Third. Congress' special concern for tile "silent killers' was felt to justify an especially strong directive to the Secretary in :he standard-setting process. Legis. History .*>02 fScu, Dominickl. The authority conferred by 5 655 (b) ("0. however, is not absolute. The subsection itself contains two primary limita tions. The requirement of "m.tf'rial'' impairment was designed to prohibit the Seoretnr from regulating substances that create a trivial hazard to aifr''*ed employees.' Moreover, all standards promulgated und*r the subsection must be "fra.-ihie." During the floor .lebjw*s Congress expressed con cern that a prior version of the bill, not clearly embodying the feasibility requirement, would require the Secretary to close down whole industries in order to eliminate risks of impairment. This standard was criticized as unrealistic.* Ij'jsm. Hi.-fi-rv .SOU (S-i. Dominick); H. T1 No. fU-1201, Ot.*t Cong.. '2d 2S (107m, l.ii'i.-. Unlnry ' Sru it. 34, injiit. * An earlier version of the bill hod provided: "The Secretary, in promiiliulina .-Milliard* under this section, shall set the standard which mo.u adequately ;mri fea-ibly ;i*nre*, on the ba-i* of the be*t available evidence. that no employe* will suffer any impairment of health or ftinrfi<iii;tl cup.ir-ity, or diminished life expectancy oven if suih jmplovee ha.- regular exposure to the hazard dealt with by such standard fur the in-riod of lib working life." T.eaie. HL-tory 242. Thin standard, ir feared, "lonld be read, to require the Secretary to han all occupation-4 in which tlu-re remain.' <m< rwk of injury, impaired health, or life expectancy. Tn ihe c.i.-eof all fwrup.it irifi.4, it will be impoe* sihle to eliminate ill ri-kj to if*ty nnrl health. Thus, the present cri teria could, if literally applied, duee every hi-iii**e :n the nation. In addirion. in many c:*e, the -Mftdard which might mn*t 'adequat -ly` and 'fuitulily' .i*#inre the prohibition of the danacr would be the elimination of ths occupation ir.-elf" l.rtjis. Mi-Urn- 507 (Statement on Amendment of Sen. Dominick). In explaining the present language, Senator Dominick stated: "Wh.it we were Irying to do in the bill--unfortunately, we did not have the proper wording or the projver drafting--ws to My that when we are deal me with ionic agent? or phy-ical agents, we ought to take such steps as are f-.i-il>l- jud pravlical to prui iJe an ,umo,-phre within which ft per- ioii'4 hedth or 4ifety would nor he aifwted. Unfortunately, we had lan guage providing rIiii atomic would bi- i.-.-ured that no one would have a hazard working lift*. tlul no one would ha'x any problem for the rvst of hie "It w.v* an unre:di-iif -tand.ird. A* modified, we woutd he approaching (In- problem by looking ai the problem .mil -ctiing a stund-int or erileqofi ivliudi wo'ild not rvrull in lufifi." D-jis. HL'tory 502. Thp fi?3ibilttv rc-qutr**nient was imposed x* .in ai.'irir.a;r.o limit ou the standard-setting power. The remainder of 655 (bjio), applicable to all safety and health standards, requires the Secretary to hasp hi? standards "upon research, demonstrations, experiments, anil such other information as may be appropriate." In setting standards, the Secretary is directed to consider "the attainment of the highest degree of health and safety protection for the employee" anil also "the latent available .-icii-nUhc data in the til. Id. tl.r 1 ill i ty of (!: -l.n.dai !.' :md <-x, t re r.ce gamed under thU :u d other liealili and safety law-." The Ai t makes provision for judicial review of occupational safetv and health standards promulgated pursuant to C55 (h)(5). The reviewing court must uphold the Secretary's determinations if they ure supported by "substantial evidence fn the record cniisid* red js a whole." 20 IL 18. (J. S 055 (f). It is to that evidence that I nuw turn. II The plurality's discussion of the record in this case is both extraordinarily urrugant and extraordinarily unfair. It is ar rogant because the plurality presume* to make its own factual findings wuh respect to a variety of deputed issues relating to carcinogen regulation. Sec. e. {/., ante, at 46-47, and n. 64. Tt should not 1m* necessary to remind the Members of this Court that they were not appointed to undertake iudepertdent review of adequately supported scientific findings made by a technically expert agency.''1 Ami the plurality's discus sion is unfair because its characterization of the Secretary's report hears practically no resemblance to what the Secretary actually did in this case. Contrary to the plurality's sugges tion, the Secretary did not rely blindly on some draconian carcinogen "policy." See aut<, at 14--15, 2o. If he had, it would have been sufficient for him to have observed that benzene is a curciuugvn. a proposition that respondents do not dispute. Instead, the Secretary gathered over 50 vol umes of exhibits and testimony and offered a detailed and evt nhunded discussion of the relationship b< tween exposure tu benzene at all recorded expu.-tire levels and chromosomal damage, aplastic anemia, and leukemia. In that discussion he evaluated, and look seriously, respondents' evidence of a safe exposure level. Set* also tittle, at 11 (I'owkI.l, J., con curring in part and in the judgment). The bearings on the proposed standard were extensive, en compassing 17 days from duly H) through August 10. 1077. The 05 witnesses included epidemiologists, toxologists. physi cians. political economists, industry representatives, and 'I ilo net. I.r 1-oiir-e. -lists-* tli.n U i- ,<|>|>rn|>ri,.1i- f,.r :i falt-ril court review insr .s> ncv acnoii liltu.lly tu r in the :iei-ni-yV hmiiuga of t.ict oini .lc(.riinniltt.ii? of |4u-v. I u ier f'ltitrmt to /Ww 0>-ertttn Park, Int. \. 1 4*M l S. kr.*, 4i<l ( Pi. I >, court.-hui?t uiialerl.ikir a ".-t-arrh- iti-s -i*il i mrefill" |iiilwi,il iu<|iiiry iiiio i|u -e f:irlur.-, knell ;,u iin(iiirv is ile-iumil tu n-iiiin- flic .ij*ein-i' (> i ike a 'liurtl lock,!" Kleype v. S'rrra i tub. 4.'7 p. 8. 4lll (t'.i'ii) {cil:iiion uinittixl), by inni!cfiig (lie pr(-r l.M-lof- .uni uei-zbin^ tin in in u n-.-i.-oti.il4c limiiiirr. Tln-n? is .ibn romii for i'|m'i i.illy nj'erou- jinlu-t.il .-cnitiny wf iijeeMi-y lin-i-ioiix muter a mholeile ikm In UmI elleriil in ( nittif Slutfi v, Purutciir I'r/utucl*. I'lC.. Ift-i t . S. 144, 1.7.*, ii. I (8iv tlHrmm'mitUd li-fmae Fit ml v. It'irk,-U,.i,. 142 r S. A|ip 1j. v. 74. 4W V. 2,1 5.-4 (!*7>. I six- no li.i.-i-, Imwvier. l,r rln- .i|>|>ro.irli token by rite |>l,ir;ility wlmli uiiiiMiut- tu lu irly ilf mit'i, n-vii-w ul f|iu-.-lio,u uf fact .mil nf fee. nl.itiiry |iti>y >,, U-kill' of iu-iiiuiioii.- tli.il an' by no ine-.m* tillable to prulei: ilii iii.i p-.-* a, die |Hiliiiial priHx.-s. 8m-li review i* n-j*ccially iii.qv. |in*jiii.ili- win ii itw f.ulii.il i|,U'-iioii? at i-?ue are oni-a aluiiil wliidi the Court callout reatoiiaLly Ir- ex[ivi'ivU to have ex|>vriise. 7-10-80 Published by THE 8UREAU OP NATIONAL AFFAIRS. INC.. WASHINGTON. DC 20037 MOD 000012824 186 OCCUPATIONAL SAFETY & HEALTH REPORTER ith'iijI" is of thr aftt wurk fene. Witnoses were suh- jcL'ti'il to qur>tioiiinu by representatives from n variety of ninrr>tril "I'uups am! urbanizations. Three- basic im-itimi- ueip ;u e-nn toil at the* benrings. The fir.-t position was that the pnipn.-uil I ppm standard was iiCex-'iiiry hecmi.-e' . xpormre to heo/ene wi.uM cause material impairment of tin* hraith of uoikers no nutter how low the o\pv=nrt* level. Some dire'.* ev deiue indicated that exposure to biu/tne had i-.im-rd eh i m. iv-oma! daui;'.o.>. bluud disorders, and li-ukuiiiu at jr !'x-io the lu ppm level itself. More im portant. it .v.is ?i:^i -t> d that the reentded effects of benzene lit Idud er level-* re<;uired an i. fe'enee that leukemia ami other d's'id'.is would te-ndt at levels of 1 ppm ami lower, espe cially .r'ter the prolonged <-vp* sure typical in industrial sc-t- tinys. Therefore, the standard should be bet at tile lowest feus.ble level, which was 1 ppm. The second position was that a 1 ppm exposure level would itself pose an unwarranted threat to employee health and safety ami that the available evidence necessitated a signifi cantly lower level. An exposure limit below 1 ppm, it was argued, would be feasible. There were suggestions that ben zene was gradually being replaced in many of the affected industries and that most companies were already operating at or below the t ppm level. The third position was that the 1071 standard should be retained. Proponents of this position suggested that evidence linking low levels of benzene exposure to leukemia was uncer tain, that the current exposure limit was sufficiently safe, and that the benefits of the proposed standard would be insufficient to justify the standard's costs. In addition, there was testi mony that the expenses required by the proposed standard would be prohibitive. The regulations announcing the permanent standard for benzene are accompanied by an extensive statement of rea sons summarizing and evaluating the result,-* of the hearings. The Secretary found that the evidence showed that exposure to benzene causes chromosomal damayv. a variety of non- malignant blood disorders, ami leukemia. ( A. 81a). He concluded that luw concentrations impo-ed a hazard that was sufficiently ^rave to call for regulatory action under the Act. Kvidfiue oj 'i"t' .V'-iuu.t effects. The Secretary referred to Studies which conclusively demonstrated that benzene could damage chromosomes in bluod-forming cells (App. 126a). There was testimony sn^e.-ting a causal relationship between chromosomal damage and leukemia, although it could not be determined whether anil to wlmt extent such damage would impair health. (App. 121)8-131)*).*" Some studies had sug gested chromosomal damage at cx|x>sur<< levels of 10-25 ppm and lower.** No quantitative duae-res|jonse curve, showing the lelatiuuskip between ex|*>sure levels and incidence of chromosomal damage, could yrt. lie establish**!. ( App. 132a). The evidence of chromosomal damage was, in the Secretary's view, a cause for "serious concern." f App. 132a). The most common effect of benzene exposure was a de crease in the levels of blood platelets and red and white blood ceils. If sufficiently severe, the result could lie pancytopenia or aplastic anemia, uoncancerous but potentially fatal dis eases. There was testimony that some of the numnalignant blood disorders caused by l>eiuene exjiosiirp could progress to or represented a prelcukemic stage which might eventually evolve into a frank leukemia. (App. 83a).13 ** Tr. 258-2.10. 10:50. Tr MS. 20*1-201, 2(53. 5- Tr. Ili. l>27, If.'S. :r*ivi: r.x 4SH, p. pm. Considerable evidence >hiwcd an association between ben zene and numnalignant bluod disorders at low exposure levels. Such an association bad been e-tahlidied in one study which the levels frequently raim,e<l from 0 to 2,5 ppm wi some concentrations above 100 ppm f App. S"a); in anuther they ranged from ,5 to .'50 ppm f.\pp. SPa). necau.ie of the absence of adequate data, a dose-response curve showing the relationship between benzene exposure and blood disorders could not be constructed. There un*. cousider.-ibb' testimony, however, that such disorders had resulted from exposure to benzene at or near tire current level of 10 ppm and lower." Tim Secretary concluded that the cm rent standard did nut provide adequate protection, lie observed that a "safety factor'' of 10 to 100 was generally used to discount the level at which a causal connection had been found in existing studies." Under this approach, lie concluded that, quite apart from any leukemia risk, the permissible cxjiosure limit should l)c set at a level considerably lower than 10 ppm. Finally, there was substantial evidence that exposure to benzene caused leukemia. The Secretary concluded that the evidence established that benzene was a carcinogen. A causal relationship between benzene and leukemia was first reported in France in 1S'J7, and since that time similar results had been found in a number of countries, including Italy, Tur key, Japan, Switzerland, the Soviet Union, and ihejlhiited States, The latest study, undertaken by the National In stitute for Occupational Safety aiul Health (XIOSH) in the 1970's, reported a five-fold excess over the normal incidence of leukemia among workers exposed to benzene at industrial plants in Ohio. There was testimony that this study seri ously understated the risk." The Secretary reviewed certain studies suggesting that To* exposure levels of 10 ppm and more did not cause any exuc, incidence of leukemia. Those studies, he suggested, suffered from severe methodological defects, as their authors frankly acknowledged."* Finally, the Secretary discussed a study suggesting a statistically significant excess in leukemia at levels of 2 to 9 ppm. (App. 89a)." He found that, despite certain deficiencies in the study, it should be considered as consistent with other studies demonstrating an excess leuke mia risk among employees exjjosed to benzene. (App. 110a). Areas of uncertainty. The Secretary examined three areas of uncertainty that had particular relevance to his decision. Tr. -VI. ;j*/w;.q <>1:, ur."J. >54:1, 21*9, 32u3; K\. 3, p. 58. * Tr. MD. 121ft. 2a47. Tr. IjOS, *j 14, 747, 708, 700-770, 874, 2445. At the Secretary ob*^rvi, the i?*ue ci1 the exp-Mur* level in the NlOSH study wu extensively debated during the hearing*. A report from the Industrial Commission of Ohio suggested that concentration# generally ranged from 0 to 10 or IS ppm. But the Secretary concluded that evidence at the hcurings showed that arcs exposure* during the study period had sometimes substantially exceeded that level- Becauvc of die conflicting evidence and the absence of moni toring data, he found that the excess leukoma ri.-lc observed in the NJOSri study could not be linked to am* particular exposure level. `As (u the .-duly on which industry relied most heavily, fur example, the Secretary, largely repeating the author's own admis.-ions, observed that fl) x number of employee* included in (he sample may not hate been exposed to benzene at any time; (2) there w-ae iiiadeiju.**# follow-up of numerous employee!*, so that persons who may have cantraoxl !e"Ve*e>* were not included in the data; (3) the diagnoses were subject to -er- ' question, and rases of leukemia mav have gone unnoticed: (4) no rfc-r minatiou of exposure kwels had been made; and (51 the niviuMtu'nil hn- furies of the workers were admittedly innnnpU-tr. (App 11'*1*' * * ' ' Tr. 1021-1024, l?J7; Ex. IM. 7-10-80 Published by THE 8UREAU OF NATIONAL AFFAIRS. INC.. WASHINGTON. O C 20037 hob OUOO12825 CURRENT REPORT 187 first, he pointed to evidence that the latency period for benzene-induced leukemia could range from 2 to over 20 years. (App. I lC'u). Since lower exposure levels lead to an increase in tin- lulencv period, it would he extremely difficult to obtain evidence showing the dose-response relationship between leu kemia and exposure to low levels of benzene. Because there bus been no adequate monitoring in the past, it would be nracl icnilv Iuipoeedde to determine what the exposure levels w^re at a tunc sufficiently distant so that the latency period .could have elup-ed. The pinblent was compounded by the d-fticulty of conducting a suitable study. Because exposure `'-.(Is approaching 10 ppm had b-en required only recently, dnert evidence showing the relationship between leukemia and ex|Mjsure levels between 1 and 10 ppm would be unavail able in the fnn'seeable future. fVonncJ, the Secretary d that inrhvidir.dshyvedifTer- ci:''( - i,i tlicit -ii-cepi:1 *:li? v t" leak- una i A; p. 117a). Among those exposed to bci'ienc wa.- a group of unknown but possibly sub-tantia! si/.-- having various "predisposing factors" whose liicmlitls wetr c.-p-.-i iu!!v vulmTaM** tu lli** disease. (App. I ISa ; 1 s la). Tin- p> i mum-i, t standard v\ a - designed to mini mize the effect? of c.xpoMire fer these s-nseeptible irulividuals as well as for tin- relatively in ci.-itivc (App. IS-la) and stl&n to facilitate curly diagi m.-is mu I t rv.it nu nt. I App. 1 ISa-l l'.'a) . The Secretary disin-sed thi cui'mr ban that a ,-afe level of expos in e to benzene bad been di munstr ittd. Finm the testi mony of numerous scientists, lu- concluded tli.it if had not. (App 124).'' He also found :hnf ukhough no Juse-re.-pnnae curve conkl be plottP'l (App. is:ta).'' the extent of the risk would decline with the exposure level. (App. l*3a).:' Ex posure at a level of 1 ppm would therefore be less dangerous than e.vpusuie at one of U) ppm. The Secretary found that tiie existing evidence justified the conclusion that he should not "wait for answer*" while employees continued to be ex poser! to benzene tt hazardous levels. Finally, the Secretary responded to the argument that the permissible exposure level should be zero or lower than 1 ppm. (App. lSoa).'1 Even though many industries had already achieved the 1 ppm level, he found that a lower level would not be feasible. (App. lS7u). Costs and benefits. The Secretary ottered a detailed dis cussion of the role that economic considerations should play in his determination. He observed that standards must he "feasible." both economically and technologically. In his view the permanent standard for betuer'e was feasible undpr both tests. The economic impact *-v*'*uM fall primarilyon the more stable industries, such as petrol*'.rr> refining and petro chemical production. (App. l34.-i). These industries would lie able readily to absorb the costs nr to pass them on to consum ers. None -m the twenty affected industries, involving 157.0fif> facilities and *3211.000 exposed cnipMiv**.** (App. l-37n). would l uiuihle tu bear the required expenditure* ' App. l-i-itt). He concluded that the compliance costs vvrre"vvell within the fi nancial capability of the covered imlu.-tries." (App. Hi3;0. ''The ti-siiniDi.y ..f Dr. Akrox, onr >f tin- uurM'- e\|n-rt>. wae tyi'ii .xl: "f F]veti one ppm . c.-iu-e* ram-cr." Tr. 204 See ai-o Tr. 30, lfi>. 762. 32*. 363-3ti4, 74V74*. 2120, 304, >057. >210. 551-322. Fix 272, p 1. |J Tr. 1.30, :a;0. 414-415. 4!*'--H7, 7hO-7fit. 7SI-7*>2, 'l2s, H>33-I05d; Kx. 75. p. 2; Ex. 2-4, |i. JJ. *"Tf 'IN-'. 401, 105, I C2 2Mft. _'S4>->S4:i * Tf. 14>--14(1 I 'th>- i.' fnii'-iliV <-x|ii,-iire limit -Jumld ><e zero") (Tes timony of Dr ,\k>y) S.v il-y Tr 1251 *t irrj . Tr -V/tM r( irr) An (WU'iinve survev nf :n<- n.xtiun.'il ........... vi-" i ? t j * ft u ;!> standard, himiertiikcn l>y a private cuntiAur. tuuml nr-t-war operating coats of hetvvren 31^7 ami Siuj million recurring annual coats -jt 5-14 im 1 Iani. and in w-ln i n 11 111 engineering cn n - '.Tula uf about $2lit> milium." ."-ince i <-a| min len ts have not at tacked tfie Seci'vtai'V > baaie conclusion.- as Lu cost the Secre tary 3 extensive <liscus>'on need not In- >umnuiri/vd in-re. Finally, the Secretary discussed the benefits to be derived from the permanent standard. During the hearings, it had been argued that the Secretary showlJ estimate the health benefits of the proposed regulation. To do this lie would be required to construct a tiose-rppoii.e curve showing, at least in ft rough way, the number of lives that would be saved at each possible exposure level. Without some estimate of ben efits. it was argued, the Sccietary's decisionmaking would bo defective. During the hearings ;in industry witness at tempted to construct such a d<-,f-resf`'hse curve. Restricting lunisdf to carcinogenic effects, he estimated that the proposed standard would save two lives every six y-nrs and suggested that this relatively minor benefit would not justify the regu lation's co->ts. The Secretary rejected the hypothesis that tnc- standaid would save only two lives in six years. This estimate, he concluded, was impossible to reconcile with the evidence* in the record. (App, lulu).': EIv detm iniM-d that, becau.-e of numer ous uncertainties in the existing data, it was impossible tj construct a dox'-rc'-pousv curve by extrapolating f:oin thn** 1:1 The plurality's `Miiii.it** of the amount of cxpt'ndiliirr jwr inpl* *, st-e ar.tr, nt )*>, h liisrUy iiu.d*-.n|inji. ,Mu>i uf ihi* vu.-t* of tii*- In- / - stun I ird wunh.1 f** incurred only mire .mil would rim- protect at: * Inn,<1 Ik number nf ciii|>liy*-- m tin* futiuc: rhaf nmehi.r will h>- n, s hipi-i th in tl mttnhrr >>f cu[il<>-* t-urr-nfly tni|lov J. ajTIe |>njjc*t-rinii, xl<-i*n**l .i ;tn extrutctl.ilion from jn iitn;ilit.im.ii'-wx '( existing <mdiM, xx-;: di pt-ndriii on a number of ii5'iimpliuii3 which re-urv could rr.i.-un.ibl\' tiew a# uuer*tKniablf. Indeed, the witnrsj Si*r^- < ztjlexl chut h;4 cjtinnt** wjs Ki.-ed on ' .i Iou.'> ,-et of data," vt4a '-'nn: bi-tfcr rli.iii a iii"." Tr. 277-2, .mil lli.it tlisre w.i' ` HO r-al b.i-i- ' T* '27 IU. fur i ili.`-c-rr-|*i>n-v i-htik - hi wlm li i lu* i -iuii.i'v xv.ia wlinllv The witne-s' .tAMiiuiuinn.H xven* jexrrrlv tetcd duriirf? the heariej* Tr 2705 *-{ snj. ami th* Secretary could rrason.tbiy rrjei*t them lj.i.-.i< of the evidence m the record. For exatnyle: (li The witne ^* pv;irr*l lo ,i"Hine ili.it in |irxxiuii- ti-is Irukuni.i li.nl >nvii loii'r. ---i after :i lifitiiai* of -\]io.*-iir-. thv eviueiiix- utl'i*rdl no li.i.-w fur t',.' sumption, and the duration of exposure may have been quite roor* parltctilar irnpluxrts. If the duration period was -hort, the witr>e * mute umilri hove b*vn much too low. (2) The wit nrs* ussiunr*) -*ui posnru levels in the NIOSH study were around 100 ppm. The S**r* .u fumtl, however, that no rurh a.-unnipu..n could he made, and ther* evidence that exposure levels h id generally been between 0 and ,,v '> ppm. (3) Tlie uitne^s e<-.*Mined that the do.M*-respnne curve ** * at all levels, but there was no h:i*ia fur that :i.-.utmpti<*n. In -* of vinyl chloride (anuthcr cafcinoBun Tor which the Secretary hai m gated exppaiins 8t,iii*i:ird), recent evidence sugge-texi that the -*>- . spon.-e curve ri.-es .`tx-rplv nt low do^ej ,iu<l hecomej P-i steep a.* t1** - are incfMsed. (4) Twenty-five percent of the workers in the "* study had rot been found, and the xvitnes assumed that they alive and would not contract leukemia. Six hundred additional * expo.-ed in that .study wore still alive; the witness assumed they raw - not contract leukemia. There was considerable testimony that, f * md other reasons, the NiDSH -Indy signiftcmitly undere:ditnaf-d * Tix* mill*'-- a.-viuni-- ili.*t n h.id not. (5) Hit' XlOkH -lud* fivo-foM **vn-* ri.*k Troui U-n/i-m* rvtm-iire: tin* witness ;v*-uri.^ L*xn*-v w.i- iiiiii'Ii li.ui-r. ili--j-i* ilu- Nil ).*H hndiug .mil tlie It--o**- thil finding wa.- a -iv;iiH*:tit iiiulir-l.iti*nii-iM tf tin* rv-k. I* w** tlir-u om i rtaiiii ii--. tin- rVi n-tal'y <:oulil i-umliutu that tliC wu--- mati- wa- uii-ii|*|H*rtal>li'. 7*1080 Published by TH BUREAU OF NATIONAL AFFAIRS. INC. WASHINGTON. DC 20037 x(A' >&*> 188 OCCUPATIONAL SAFETY & HEALTH REPORTER dut.T. to 1 olt cvj.ijiuif Mure* lerally, the .`vere- tary obaerved that it had nut been e-bibb-hed thst there was a safe level of exposure for hen::ene. Since there was ccnaiderable testimony that the nk would decline with the cxpusmii hwel i Aj>j. 11:0;i). the new standard would -ave l,\e*. The number of lues s.ivi.s! "may he appreciable." but therv u;is no w :v. to make a mure precise determination/' Ti'" n i-~ticn ".i? "o*' tii-.- fi ntc-r- id scientific knowled^e." i A; ;> KiUa). The Secretary r-o''(_!,i*-d lint m !:ynt nf the scientific uncertaihtv, he v.ms nut M'([u.r--d to calculate benefits more pv`."'-;>>dv. ; A; m Ii>_'a-lii-ki). In any i '..ait he gave "careful cmisid'Tatiun" to tlie 11u>tiiin ni` whether the admittedly -mh.-tautuil (Mj-t - were justified in helit of 111 Im/anls of bum'-ia* exposuiv. U" i ui'-Iuded that llm-e costs were "m ec-aary" iu order to [hi.mute the purposes of the Act. Ill A This io not n rase in which the Secretary found. or respond ents established, that no benefits would be derived from a permanent standard, or that the likelihood of benefits was insignificant.. N'or was it shown that n quantitative estimate of benefits could be made on the basis of "the best available evidence." Instead, the Secretary concluded that benefits will result, that those benefits "may" be appreciable, but that the dose-response relationship of low levels of benzene exposure and leukemia, noumalignaut blood disorders, and chromosomal damage was impossible to determine. The question presented is whether, in these circumstances, the Act permits the Secretary to take regulatory action, or whether lie must allow continued exposUte until more definitive infor mation becomes available. As noted above, the Secretary's determinations must be upheld if supported by "substantial evidence in the record cohMiIrred as a whole." 2U l*. S. C. ><*A%if). This stand* aid represents a legislative judgment f.hM regulatory action should be subject to review more stringent than the traditional ' Witn<--*w ti-ni'vit.e to flu* iii.l.ilitv tu coii.-tun-l a flope-ni-ixuue turn; ri lrfml [fiiu.iiily to ilu* mqKk-- i'ality of correlating tlm iit''nl**tiee uf li-*ika-iin.i. 1 .lotI ili.-r.r.Icr-, ;iimI clirnllio-olii.il ilamajjv tv.lli the level.* and duration of c\]i-nn- in p.i-i -unties. Tliti-. Ur. Herman Kraybill of the National Cimcr In-ninii- n*-ifivl. . . [W] like to fitimate ri.k factor!. This has been done, as many of yon recall, with vinyl chloride several yean ago. . (T]o estimate the risk fnct-'M on [the base* nil experimental data, this presupposes you have good irxivity data. When I say toxicity data, I mean good do.-ere-pionse data on vinyl chloride, which indeed we did have that. But with boiiuaie, it appeared that we didn't have this situation, so therefore, nio-t of n* gave up. . . With Ijeniene, we sort of struck out." Tr. 7bO-7dJ. ul ifu- viiairiuoii- imccrf liiiiiv. hi Iim-I- .uni duration of t*xj*jaiire in prior studio., ,un ,i.--iiinpnon.. would inn---a rily he arbitrary. The po."il>l<. ranee of .i.'-iitnpimo- n,... m. ^r.-;i; ih.it tin* ultimate conclusion tvi'idd l.c cnnr.lv iii.h.IoikmIhc. Sc Tr. 1IMI, 4td. Itloa-lllati At one point ill.,* .^ccr't.iiy did itiilic.iti* tint appreciable benefits were `likely" to result The Court of Ap|H il.- held that this comlu-ion was unsupported hy sith-iantial evidence. The iJecretarv's suggestion, how ever, vas made in the comexl nf a lengthy tlifu-?inn intend'd to ..how that appreciable 1 M.i*-fir-* ''may" lie predicted but that their lile-tiluwxl codd not be quantified. Tlic wijsge.-tion should not be takm as ,*v definitive statement that appreciable benefit* were more probable than not. For re.iN'ii.. .-tated ino-i. dnft* i.- nutlonx in tin* Act to proliil.il the r-.-crvtnry from a*finj* wli.-n h>* i- imaMc to vomhnht 'hat appreciable benefits ant more probable III,in not. "mbitrary ami rapHcimi*/' it.vulard :'..r .i.1 run-in. W v have observed that th* arbitrary -m i Lai.nuuu.s stamiar i itself conLt-ini;lo.tr- a scan-bine ``muniry into the facts" oulcr to (|ei-r: une "whether *Jie i!c* i-ion was bn.-rd oo coU'iileraLiou of the relevant factors and whether tliere has be**11 a clear error of jin li/iuco t." Cifrzi n.< 11> e Overtan f>(irs v. 1 ulpc, 4(11 b . S. 40'd. 41 (j 1 1 It" I ). Careful pet form* aiice of this task is especially important when Ojogre-n has impusr'l the cwmi'iu alivvly more rigoiou- "sid'-taotinl evi dence*" requirement. As we have cmpliasireil, however, judi cial review under the substantial evidence test is ultimately deferential. See. *. tj.. Richnrtlson v. Pi-rnRs. 4dli l'. S 401 f 11)71) ; Cuiixtiln V. FtrlrMt Ctt/nm'n, -3^-1 l'. S 1507, 61S--b'2l (1005). The agency's tieci'ion is entitte.1 to the traditional presumption, of validity, and the court is not au thorized to substitute its judgment for that of the* Fecretary. If the Secretary lias considered the decisional factor? am 1 fteted in conformance with the statute-, his ultiiiate decision must be given a large measure of respect. Id., at b*21. The plurality is insensitive to three factors which, in my view, make judicial review of occupational safety and health standards under tin* substantial evidence test particularly dif ficult. First, the issues often reach u high level of technical complexity. In such circum-dances the courts are required to immerse themselves in matters to which they are unaccus tomed by training or experience. Second, the factual issues with which the Secretary must tleal are frequently not sub ject to any definitive resolution. Often "the factual finger points, it does not conclude." Society of Rtnstica Indus., Inc, v. OSH.\, 5U0 F. 2d IdOl, HJOH (C.VJ> 1 Mr. Justice Clark), cert, denied. 421 L*. S. IHrJ IID75I. Causal connections and theoretical extrapolations may be uncertain. Third, whe* the question involve., determination of the acceptable It* of risk, the ultimate decision must necessarily be ha.--d 011 consideration-* uf policy as well as empirically verifiable fact?. Factual determinations can at moat define the risk in some Statistical way; the judgment whether that risk is tolerable cannot be based solely on a resolution of the facts. The decision to take .action iu conditions of in.certainty bears little 1 escmMaiice to the sort uf empirically verifiable factual conclusions to which the substantial evidence test H normally applied. Such decisions were not intended to bo unrcviewable; they too must be scrulinizetl to ensure that the Secretary has acted reasonably ami within the boundart**3 sot hy Congress. But a reviewing court must bn mindful of tint hunted nature of its role. See Terrnynt Yankee S ucU-ar Rower Cory. v. XliDC, *Wn l'. $, 511) (197ft). U must recognize that the ultimate decision cannot be based solely 011 determinations of fact, and that those factual conclusions that have been reached are ones which the courts are illequipped to resolve on tiieir own. thider this standard of review, the decisiuii to reduce the pennisAiblc exjiosure level to l ppm was well within the Sec retary's authority. The Court of Appeals upheld the Secre tary's conclusions that benzene causes leukemia, blood dis orders. and chromosomal damage even at low levels that .m exposure level of 10 ppm is more dangerous than ^ne of l ppm. ami that benefits will result from the proposed stand ard. It did not set aside his finding that the number of lives that would Ite steed was not subject to quantification. N'or did it question his conclusion that the reduction >* "feasible." In these circumstances, the Secretary's decision was rps.-mi- able and in full conformance with the statutuiy l.n-x.u<,` 1<V80 Published by THE BUREAU OF NATIONAL AFFAIRS. INC.. WASHINGTON. D C 20037 CURRENT REPORT 1 t\)'i ll'i I that he ";<-t till' -tamlai'd \% r i irK HH'.'t :di.'-jli:ttely to tlr- extent fi'mib!**, on the basis of tile best avail able cvi-huce. tliat no employee will suffer material impair ment uf lii-aitlt r.'i funrn>'N.il capacity even if such employee 1ms tegular cNpM'iiM' to (in- Inuaid dealt with by such standaid fur dm ; rri iud uf liis " urk mg life." if) U. S. C- $ boo (b) On t!n> i<-riii 1 tin' Secretary could conclude that regu lar ex|.i>i:ii'i' rd-<ivo '.In- 1 ppm level would pose a definite risk resulting in mu'- rial imji.umirnt to Some indeterminate but pos.-iiily subrtmiti.il number of employees. Studies revealed bundled* of deatlis attributable to lien/eiie exposure. Expert after expert testified that no safe level of exposure had been shown and that the extent of the risk declined with the ex posure levd. There was some direct evidence of incidence of leukemia, nouimdigmmt blood di.*orders. and chromosomal damage at expoMire levels of 10 ppm and below. Moreover, numerous experts testified that existing evidence required ail inf-Tvnee that an exposure level above 1 ppm was hazardous. \V*> -Hive =tcit*-*I that "w rlhr< atoned expert testimony--based 0-1 what is know o and uiu ontradieted by empirical evidence-- may in ami of itself In* `substantial evidence' when first-hand evidence on the qtu-.'tiim ... is unavailable." FfJC V. Florida [*inrt,r <t f,ii/ht ('<>., 404 (r. S. -lad. 4t>4--l0a (1072). Nothing in the Act purports to prevent the Secretary from acting when definitive information as to the quantity of a standard's benefits is unavailable.Where, as here, the deficiency in know.h-dge relate* to the extent of tie- benefit:*- rather thuil their existence, I .-ce no u-asmi to hold that the Secretary haa exceeded hi* -talutory authority. B The plurality avoid-* this coiicIumou through reasoning that may charitably !,*.* described a* obscure. According to the plurality, the definition uf occupational safety And heulth standard* a.s tho.e "reasonably necessary or appropriate to j'.jsuic safe or healthful working condition*" requires the Secretary to show that it is "more likely than not" that the risk Im seeks to regulate i* a `'significant" one. .4/ife, at 42. The plurality flues not show how thin requirement can plausibly be derived front the "reasonably necessary or ap propriate" clause. Indeed, the plurality's reasoning is refuted by the Act's language, structure, and legislative history, and it is foreclosed by every applicable guide to statutory con struction. In short, the plurality's standard is a fabrication bearing no connection with the acts or intentions of Congress. At the outset, it is inqtortuut to ohserve that "reasonably necessary or appropriate" clauses are routinely inserted in regulatory legislation, and in the past such clauses have uni- Thi.* i* not I" -:iy lieu 'In* Secretary i- pmhihi'iil fryin cvuiiiiihg rl,n\.. .n.|. ;,M.l l..i..(n. in iIII- Ilf .M-ltitig prunitM-* anion* li li.iriliMi- .-*iti*i.iiic c or ili.il -v-Ii-iu.iMi- nni..|i|i r:il lull of rusl* :inl hetie- fit* i- iiul t.i In* .iHiiiii-ImI hi the -1 .i 11< bird-**( tiiijj proMf--. Kfforl* to iiv i.ini -. "i mil I vim lit*, liki- *i >tiiii'in - uf fi-anni* gi-wi-i'lv, inav In-Ip In ; '(-(inn it i* it M * - * t* * I t**r. 11 iiiii oT i!i*-i-hiii;iI fin-tor* mu! f;u*ilir.'iir iuniit.il ii\ii ., S*i- Iturhnirrki. +'J1 lr.S. SHU( ,S7l-.'i74 ll!)75), I hi- ,'n ivi ary uiilii nti-. i h.ii In- Ii;i .itft inputI in i|ii.miify itict* .mil Iten- clii-. m flu* pa-t. s.v 4.; Fi.l. ,|;.*t4, .'H427-544.il (I'J7S) (lend); 4.'. Fill Kci:. -7.;'.|*, .'b.Ts-jr.iT'i un7>) (iinlun dn*t). ___ It is no' itn-t-Nirv in Mu- |in^4-ui ra-** lu .-ay wlu-rh.-f the Si*.-ivfiiry nni.*t -Ini-v a re-.....ial*l<- relation 'n-lutt-n vu-i* and hein-fii.-i. fJi<iiiiitinj* for tie H-kmilir imurtaiutv, i|u_- StvrMury iwpre*.*h--ami r*-aon- ultly--tmiml -wn.il . rH.it i>>u In-ru. 189 fonnly been interpreted as general provis*** that r-guiacn v actions must bear a ren>oiiali!e relation to ihu>e statutory purposes set fortli in flu* statute's 'ubsta-nive provisions, Sc-e. t. <j., FCC v. ,\ ntiinml Citizen i Cwi/mltt* /or ftrondcflsftni/. 4i5> U. S. 77. >, T'.lft--7P7 I llCji; .l/'niruuiy v. Fw/i u'y l^ibltrul tom St-ryicr, tor , 4H I`, >. d-wi. dnp 1 lP7d) ; Thorpe V, Housinf/ .1 uf 'hi City uf Ljur/iam, lS. 'Jbfi. 2S(.1~2S1 flPuoi. 'I'in.- Co-jit has m-ver--until today--intt.-r- prcte*t a "t[-.i*uimlily necessary or appi-niriate" clausi* as hav ing a sub>taiitivo cnnti-tit that *up*rr---ve.* a *|iecific congres sional directive embodied in n proviiiu,! that i* focused more particularly on an agency's authority This principle, of course, refi-u-'.s* the common understanding that the deter mination of whether regulations ar* "r-anmubiy necessary" may be matte only by reference ff> the legislative judgment reflected in the statute; it must not be ba.sed on a court's own, inevitably subjective view of what steps should be taken to promote perceived statutory goals. The plurality suggests that under the "reasonably neces sary" clause, a workplace is not "unsafe" unless the r-ecretary is able to convince a reviewing court that a "significant" risk is at issue. at 31. That approach is particularly em barrassing in this case, for it is contradicted by the plain lan guage of the Act. The plurality's interpretation renders utterly su|H*rfluoUs the first sentence of Sfio3fbK5). which, as noted above, requires the Secretary to set the standard "which most adequately assures . . . that no employee will suffer material impairment uf health." Indeed, the plural ity's interpretation reads that sentence out of the Act. By so doing, the plurality makes the test for standards regulating toxic substances and harmful physical agents substantially identical to the test for standards generally--plainly the op- jHJsite of what Congress intended. And it is an odd canon of construction that would insert in a vague and general defini tional clause a threshold requirement that overcomes the specific language placed In a standard-setting provision. I lie most elementary principles of statutory construction demon strate that precisely the opposite interpretation is appro priate. See. e. (/., FFC v. 7'tn'oru, /tn\, 417 l. S. *WU. 3H4-- (1974); Clark v. Ceberstsv Fwtuiz-Korp., 332 U. S. 4S0. 4-S8- 489 (1947). In short. t'ongri*ss could have provided that the Secretary may not take regulatory action until the existing scientific evidence proves the risk at issue to bn `'signifi cant." but it chow nut to do so. 1,1 It- U iiM-ful ti* i-umpire dm Act with oitwr n-gnLitury <l:ituti-i ir wliii'li Coniin-** liw* reipiiretl :i .|h iu- uf ;t n4nliuii-tiip )(wis-u i-a-l.* mil benefit-* ir (if all *'tmre:i.-iiiabU- rik." Ill mmik* statute* Co*ifrc>- luu r\prif.-lv n-i|>iin-d er-iaii.il>*i> or :i *li-iuoii.lraliuii of *oiiitf rex- j*ini.ilit* ri-t.ilion lit-tn^-n n*l ami iK-iiefits. See Isf b. S. C. 5*01 (u) (Fluml Cwiln4 Ait uf PCttP: 42 lf S. C. $7^45 (eK2)(B> Air Art): :r. 8. c. I i:(M |liM4)|B) (Clit.u Water Act). In others fiuil*ri-.* lias ini|iu<s*l i*> iml<|ii*liiii n*(mn-im-iit-: that aJniinietr.itive iictUm In* I'm-iMf'' ami jiuaitivil l*> a ImiLhmiiiit of rust; ami twin-fits, e. g.. W V. 8. C. 5 t:i47 (h) (Onti-r C'oiiiineiital Sln*lf Liml Aet); 42 U. S, t*. $ liitlij (a)(4lt 1)1 (Kiu-ray Pulley anil (\m>ervalioii Act). This ap|ir*>:n-h ileimni-lr:ili> a IrgUliiibe aw:iri-iu-* of (hr ilifferrm-e hrlweeii a fea-iliilnv itm-irainl and a mie-iriint ba-ed on weighing cost* aial ben efit*. !ht pp. mfm. lit .-nil iilhet* Ccmgrvw hai n-fsiil.itMih uf ` iiiirea.'iniaUe ri-k," a term whieh 1m* 'wen read by -wine 4-uiirl* tu n-i|iiin- a luilaiii-ms uf `-w-l* and lieiiefil*. See, e. g.. .!*?</ islute ".V' Du'r ( utp. \. r/'.sr, .">!*> K. 2d Sil (ir.vs ]y"vX) (cun-truing 15 l: S, (.*. 2(.V> (i-K2l I A) | ('uimiiiHT Product Safety Art]): >'i<r*j(er v. fV*>r, 1x2 l'. S. App. I). C. I'W), iitt F. 2d 774 (14*77) (cominnng 15 U. M C ( I2lit fs) iClnhi Pn>leeti*'ii awl Toy Safety Act]). 7-10-80 Published by THE BUREAU OF NATIONAL AFFAIRS. INC. WASHINGTON. DC. 20037 MCD 000012828 190 OCCUPATIONAL SAFETY & HEALTH REPORTER The plurality's mUTpp-tutimi <-f I he "iriisondbly iiecess.i'y or a11pm|>riji i/' i-iau?** i> abu < unclu-ively refuted by th** legi-L*i\e hisiorv. While Uir nt;mil,u d-.-etting pi'tvision that -1;e plmahtv iguuirs rvci>.ed <\leiisiv<? hgijl.it.vp alteuticm, the dcfimtiumd chm^e received mme nl all. An earlier vei-imi cl' ihe Act, See ii. S. siipi'i, did ::ut embody a l;l**ar feasibility c Mutiaiut and was nut tc>11acted to toxic substances or to "material'' impairments. Tiip "lemsunubly necessary cr apptI'i'i iatu" chuisu was fuiit;uiifil in this prior \rsioii of the hiil. as it was at all relevant times. Ill debating this ver sion. Members of Congress repeatedly expressed concern that it would require a risk-free universe. Sue. e. <j., arte, at 3fi-3<. The definitional clause was nut mentioned at ail. an omis sion that would he incomnreheiisible if Congress intended by that clause to require the Secretary to quantify the risk he sought to regulate in order to demonstrate that it was "significant.'' The onlv portions of the legislative historv on which the plurality rel'es, see ante, at 3G-38. have nothing to do with the "reasonably necesoaiy or appropriate" clause from which the "threshold finding'1 requirement is derived. TliOoe por tions consisted of criticisms directed toward the earlier ver sion of the statute uhtclt already contained the definitional claose. These criticisms, in turn, wen* met by subsequent amendments that limited application of the strict "no em ployee will S"fier" clause to toxic substances, inserted ;m ex plicit feasibility constraint, and modified the word "impair ment" bv the adjective `material." It is disingenuous at best for (be plurality to s"ggest that isolated statements m the legislative history, expressing concerns that were met by subsequent amendments not requiring any "threshold" find ing. can justify reading such a requirement into ft "seasonably necessary" clause that was in the Act all along.-* The plurality's various structural argument* are also un convincing. The fact that a finding of "grave danger" is re quired for temporary standards, see ante, at 211-30. n. 45. hardly implies that the- Secretary must show for permanent standards that it is more probable than not that the substance to be regulated poses a "significant" risk. Nor is the reference to "fo.hr substances." ante, at 33. in any way informative. And the priority-setting provision, ante, 33-34. cannot plausi- lTln* nlimhtv . *!.-*> rcln nu ii* prrfplion lh;l if the "mi^oiiiibly hin<-*.irv'' cL'ii-c ivi-r* not uai-n the iiumiimi* it #mbe> to it, there would la- no mini.iiuc fur '>(;iiicl.ir<l nfiirr than thnre tlenlirjf with toxic nvilrri.iis and liartnfid |*liy*iral ai:eti*?." at `JtWltO. n. 4a. For two rtM.-uo.t thin arsmnriil i,- willttxil farce. First, even if the rrrmmatity tirvsr.-irv c-l.m-e do*-- have *jmlenr tuid r-nl, aiul even if that con tent is a.- the plurality *li--cnlu-- it, it rantiol tinilrr any fuirmunicU rendu* .-n|a-ri*le fIn* ex|m-^ langn.ige of WSS (b)(3) fop toxic sub- st.mees and leimifiil [ih\'.-i^il aseilt *. Snotnl, a- ualeil .*Uive. an earlier MTsioii uf the bill applied the "no riiif'lovei* will MifTvr" t.uigiiajji* to all At that time, there was n<* "gap." and a.'conluiglv it cniild nut l>e argued that the "reason- idi|v rieceiu-ary ur appiupri.ite" rljiue hail rhv coiderd the plurality ni*riU*s to it. In Mii.- liitlit, I lie plonlitvV rvuaouinx uniat lie that when Cniigre-.- .<iiirmlvil Ihe hill In apple die strict MM (h)(5) requirement! only to ln\ic Mih'l.nice-. tin* di linitinnal elau-c gaiieal ;m imlept'itdi'nt nie.'iuiiix that in torn (-tmiprclioiidi-d all -taixianU. Unt surely (lit* argu- 11ionb turm cnngrc'wibliiil piiqm-*-- on their li'*iui. ft reasons that when Calibre-- >ii>x1e*J out tnxie -oli-laiu i- fr regulation, it -initiltarin- ou-lv n*ate*l a mure h-neoit C r<-a-oial.|v mv-.siry") rot for standard* generally, slid that one*- that more letneot ti--t wa. applirahle, it -uuitliow -Mp**oe*led rite strict re*|Htreinftii< for rmie -iilKtnurt. That rea- -oniti in 1 >I* illnm.al and i-in-wl.ir. Nor t- th-f *rv bnsi.* f*>r the phirality's siivgeethm. .H'e ftn/e, ;*t- Itft, t. 34. that ih ungitml hill*i application to all -tnmLird* > "eiitiivly rriiutveiiciit.1' bly be read to condition the Secretary s stamiar au thority on an ability to meet the ('ourt's ' ' t h r**>r' < ,.j " requirement. 1 lie plurality ignores jfiplicable canons of cun*?rin,: apparently because it finds their existence inconvenient L . aa we stated quite recently, the inquiry into statutory pur poses should be "informed by an awareness that the rogu- lation is entitled to deference unless it can be said not to be a reasoned and sup|>ortab)e interpretation of the Act." Whirlpool Carp. v. Marshall,----- U. S.-------.----- (1980). Can it honestly be said that the Secretary's interpretation of the Act is "unreasoned" or "{insupportable"? And as we stated in the same case, "safety legislation is to be liberally construed to effectuate the congressional purpose." Id., at ----- . The plurality's disregard of these principles gives credence to the frequently voiced criticism that they are honored only when the Court finds itself in substantive agreement with the agency action at issue. In short, today's decision represents a usurpation of deci sionmaking authority that has been exercised by and properly belongs with Congress and its authorized representatives. The plurality's construction has no support in the slalntc's language, structure, or legi&lniive history. The iliredmld find ing that the plurality requires is the plurality's own invention. It bears no relationship to the acts or intentions of^ungn-ss. and it can be understood only as reflecting the personal views of the plurality as to the proper allocation of resources for safety in the American workplace. C The plurality is obviously more interested in the conse quences of its decision than in discerning the intention '"r Congress. But since the language and legislative history the Act are plain, there is no need for conjecture about tnc effects of today's decision. "It is not for us to speculate, much less act. on wherher Congress would have altered its stance had the sqtecific events of this case been anticipated.'' TVA v. Hill, 437 U. S.. at 18-5. T do not pretend to know whether the test the plurality erects today is, as a matter of fjolicy. preferable to that created by Congress and its dele gates: the area is too fraught with scientific uncertainty, am! too dependent on considerations of |>olicy. for a court to be able to determine whether It is desirable to require identi fication of a '`significant'' risk before allowing an administra tive agency to take regulatory action. But in 1'ght of the tei>or of the plurality opinion, it is necessary to point out that the question is not one-sided, and that Congress' decisiun to authorize the Secretary to promulgate the regulation at issue here was H reasonable one. In this cai*e the Secretary found that exposure to benzene at levels above 1 ppm jtosed a definite albeit imquanlifiable risk of chromosomal damage, nuinimliguunt blood disorders, and leukemia. The existing evidence was sufficient to justify the cotudusioit that such a risk was presented, but it did not permit even rough quantification of that risk. Discuunt'ug for (he various scientific uncertainties, the Secretary gave "careful consideration to the question of whether the(l sub stantial costs" of the standard "are justified in light of (be hazards of exposure to benzene." and concluded that "these costs are necessary in order to effectuate the statutory pur pose . . . and to adequately protect employees from the hazards of ex)X>sure to benzene." App. 163a. In the&e circumstances it seems clear that the Secre* found a risk that is "significant'' in the sense that the word 7-20*80 MOD 000012829 Published by THE BUREAU OF NATIONAL AFFAIRS. (NO. WASHINGTON. DO 20037 CURRENT REPORT is normally used- There -was some direct evidence of chro mosomal damage, iiomuahgiuiiit blood disorders, .Mid leukemia at exposures at or near 10 puiu and below. In addition, ex pert after expert testified that the recurrled effects of benzene exposure at higher levels jost fied an inference that an ex posure level above 1 ppm was dangerous. The plurality's extraordinarily searching scrutiny of this factual record re veals no basis for a conclusion that quantification is. on the basis of "the best available evidence." possible at the present time. If the Secretary decided to wait until definitive infor mation was available, American workers would be subjected for the indefinite future to a possibly substantial risk of ben zene-induced leukemia and other illnesses. It is unsurpris ing. at least to me. that he concluded that the statute author ized him to take regulatory action now. Tbitler these circumstances, the plurality's requirement of identification of a `'significant" risk will have one of two con sequences. If the plurality means to require the Secretary realistically to "quantify" the risk in order to sat'sfy a court that it is "significant." the record shows that the plurality means to require him to do the impossible. But regulatory inaction has very significant coats of its own. The adoption of such a test would subject American workers to a continuing risk of cancer ami other serious diseases; it would disable the Secretary from regulating a wide variety of carcinogens for which quuiitificatiun simply cannot be undertaken at the present time. There are encouraging signs that today's decision does not extend that faivn My Brother Powkll concludes that the Secretary is not prevented from taking regulatory action "when reasonable quantification cannot he accomplished by any known methods." See ante, at 4. The plurality also indicates that it would not prohibit the Secretary from promulgating safety standards when quantification of th b1 unfits i- imp!>->ibb\ See note. ;i| 4T-1M, mid n. bJ. The (Vmi t might thus allow the Secrctiuv to attempt to make a very rough quuntificaimn of the ri-k impii>ed by a carcino genic -ub.-tamr. and gi\e cunsderuhle deference to hi.* find ing that the li.'k ';h signify ant. If so, the ('mii t would ; iernut the ><<retary to promulgate precisely the *ame regulation involved in 11 to case if he had not relied on it carcinogen TV pltrrjlitv 'iksi*!>u tli.il it i* fur Mir agency "to determine, in the ;`r-f ;:.\-i;inri", li.'i i i-nu-Mli-r* t In* il -i*i>ifi-<ul' ftfc," It im i thut the _ii*r . "l* fn*r tf> uo r*mw:iivr :i-'umj>rHiiP< in interpreting tl . . ." Atr. :ii 44--t.V Xlnrciw IT, my Hmthcr PAVXtl would not n*qunie "rptiMii itiraU'Mi nf rpt in i-vitv cii.-e." Ante, at 3 fPowntx, Jn concurring in part and mnnirrinc in the ju<licitw*iit), .U I read his ojiinii>ti. Mm. .Icktw-k I'nWKLL woukl have p-nuitUil Mie Secretary to promulgate the standard at went* here if die Sixth ary IkuI 1'ruvided a mure carefully rra^-oiied <-s|daMaiH'U nf W eonrlu>ioii tluxt the risk nt r.--1> ju-ritiivl Mm* .'I'liniitnlly -icnificmf etk-i* of I tie Iwniciie simulant. Mm. ,le.vri>'K Pow nt.i. .d.-n .ii|ii-n that -nrli rv eum-lu-ion would be *ub- jfH'l tu relaliu h' deferential n-vrw. Ante, at 7 ti. S. In Mii- n-qx-i't, ilw differiiiii* lclwii'ii my a(i[irn.-ieh ami that, of Mu .li'.MUK Puwm.l Huy !* iHii|Mranvely narrow. WV an* agmxl on tu prn|>u-iiiihi,> iliat t n-irirtl a* eriiiral to iv fairuiimlixt iiilcrprelalion of tlte Art: (1) die Scrvl.ity niav regulate risk* that are not Mibjeet to <|'iantifir':itiiiii cm the L:i>i- nf the "Iwit available evidence'': Itlld (2) 1 lie SecretaryV judisrueMi. rfi.il :i purtieular health ri.-k merit* regu- 1.1I1,iv .irttnii i* ,,il,j.,i in limiml imliiial -ermine It is i-iir'viritfing tli.it .,1 MitnUr.- nf Hit* Court adept rltc-c pm|Mijitinua. For ri-n-oiH .-tilled in ftw- ie\f, Imwevef, I di.-infpx* with my brother I'iiW'm.i.V roiieliifimi That it i.* appntiir:.ite to Imld ill tlii- p:i.xc* Mint the Ait lii(iiin-M the .Scvrd.iry lu -Imw fOa.-uiiabk* rriatiyiuhip Utwtvil PQ-ti and heiu lit.i, 191 i ''1't 111 ;k. 1 1. ; (.f ; 11 . ; .. , \ j r t-'-l.. ;i '.ui!\ a' id 1.: ir' - r !t [ i ,i i T!: i I -,l- , - . ,f i : a.v-cmptmn- that 11. i ,-k addiv-id i- .1 : v.a A1A i 11 l'|H c - 1.1' II I , I; ; : I . J! 1 [ ^h l V it. "prCMl h Uii,; !' I' ;; -1 :!t to - i - > i '; i:1 1 tie i 111 `^ i n i " 11 wit'i ?- '.J |'i ell,. , , ntK.I, ~^,:, ; t, j,, '' a r|;t;' | 0 f.0 fi'rnn-d w :tlt.nit stututoiv guidui i 1 lie i'nii'C'liici' 'S (,f thi- 'trui .[ apprrmi-h would har1 ]Iv: 1 d> letrcms; idl' d, if dith't' fKun mv own prmiip.dlv in 'its ns.'-j-.'ir.iit ,,f tlif l.a.'ij for th.- Secrntnry'* ,Inn-ion in (flii nt--'' It i3 i><iji-n'iui i jhln. Imu i'ot. for tliif-e rpi.imv Fib-t, the reqiinnmnot of idi-ntifimtnm ol a "nziiificaiit'' n.-k ilhiply has no rnhitminh:p to the -tarutc that, the Court tcnHiy purports tn cnnstnie. Stcuml. if the "thm-iiv-bI fnnhiiK" requirement means only thru the Secretary must find "that there i- i need fur `iirh a standard. ' ante, at T2-dd. n. iR. t^lie i'ef|uiiemeiit was plainly satisfied by tiie Sect ctm v's express statniuciit tliat the standaid s cu-t- "are tmce-.sarv in order to effectuate: the statutory ptirpo-ei . . . and to adequate!v pVotcct employee* funn (he hazaid* of expo-lire to b*-n/.eiie." Api*. Ibd. Third, tlm record amply tie...... nitrate* that'Su fight of existing scientific knowledge. : .i ourpn.-e wunlJ'be Served by reuuiring the Secn-taiy to take -tep* *0 quantify the Ii.-k of exjjositre to henzei i- at !i,w level*. Air/ such quantification would lu* ba.-ed not <,n -> ieutific "know ledkc" as that term ;s uorinally undeisiood. !,ut on ecm.-ideritibiis of policy. Vor carcinogens like benzene. Ihe a.i.-uiiiptiou*' nu which a du-e-respuii-e eurve mu-r he !,a>ed ait* necessarily arbitrary. To require ;v (ptant'.tatixc .-liov*iog of ;i 'SigniliCaiil' ri.-k. therefore, would either p.ualyzc the Secretary into inaction or force him to deceive the public by acting on the basis of assumptions that must hr considered too specu lative to stip|>oft any realistic a-se.vmrnt of the relevant risk. See McGarity, Substantive and Procedural Discretion m Ad ministrative Resolution of Science Policy Questions: Regulat ing Carcinogen:* in EPA and OSHA. t>7 Geo. L. .1. 7JM St)(j (IM70). It ia eiieturaging that the Court appears willing nut to refpiire quantification when it is nut fairly possible. Sec* anlt. at 45-40. ami u. (id. Though it is difficult to see how a future Congress could lift any more explicit on the matter than was the Congress thut passed the Act in 1970, it is inqiortant to remember that today's decision is subject to legislative reversal. Congress may continue to believe thut the Secretary should not be prevented from protecting American workers from cancer and other fatal diseases until scientific evidence has progressed to a |Kiint where he can convince a federal court that die risk is "significant.'' Today's decision is objectionable not hecause it is final, but because it place* the burden of legis lative inertia on the lieneficiaries of the safety and health legislation in question in this case. By ailucntiug the burden in this fashion, the Court require* the American worker to return to the |H>liticul arena and to win a victory that he won once before in 1970. I am unable to discern any justi fication fur that result. D Since the plurality's ronMructtun of the "reasonably neet"-Sary nr appropriate" clause i* uimupportable. I turn to I in-f c!iscu.--sion of the other arguments that respondents ofi'er in sup|x>rt of the judgment below. First, respondents charneterize* the Act as a pragmatic statute designed t' balance the benefits of a safety and hrabh regulation against its eo.-tx. Respondents observe tout 'h11 statute speaks in terms of relative protection by pan'dmg 7-10*80 Published by THE BUREAU OF NATIONAL AFFAIRS, INC. WASHINGTON. 0 C. 20037 MCD 000012830 192 t!._p ."..v-mv! '> f.*r pm-ible," 29 L'. '5. 5 '1 -'bl. yi:i| !;> -tiP.iig iii.it l!m "uu nuii'Ti i! impairment" requn*1 !;'!:( is to be imp's*'! only "to tlic- r.XiVnt fcJ iibb'." .... t, cuet'.-i1.1 :h.it tlif.' [i`i 'H ii'jsitil,iy should h- r ead Lu rcquiii- rot ,-i'; i.iti'.'ii i 1 tin fcuiiuiiiic burden of it :-'.anJ- ::!. r: r t .!> t '. hll'-luga' li -m! i ievabih t y. 1 < i' > POt i:i;-' !-r i: ! ilif > ;;vt.ny to But tvspo:uUmls pre- -ci,? :.o ar;ri: 11, t'i. f tli.it. t!ir expenditure inquired by the ben - /'i > -nm 11j 11 n ( in that Tlif Secretary (-1 u- led un the b.'-i- '.'I .-id'-lan! ,;ii yvid.-nee t!i:it -I Ml- Cu-tS of the stun'kird would I-- leadily ;'.b-:Oi'b*`d by the 20 ulTected iudusfies. One nerd not define rh? feasibility requirement with preci-ion in order to conduce that the benzene standard is "feasible" in t!i sense that it will nut materially harm the financial condition of the regulated industries. Rc'j'Ondeiits suggest that the feasibility requirement should be imdei-tuud not merely to refer to a standard's expense, but u!.-u to mandate a finding that thy benefits of an occupa tional safety and health standard hear a reasonable relation to its costs. 1 believe that the statute's language, structure, anil legislative In.-story foreclose respondents* position. Ill its ordinary meaning an activity is `'feasible'* if it is capable of achievement, not if its benefits outweigh its costs. fifee W eb- ster's Tbitd NV [nternatimia] Dictionary Sol (197b). More* o' er, respondents' interpreLitmn would render fi.Vi (h)(5' infernally inconsistent by reading into the term "feasible" tl requirement irreconcilable with the express language author izing the Secretary to set standards assuring that "no em ployee udt surfer material impairment. . . Respondents' position would render that language merely hortatory. As noted above, no cu-t-ht-nefii analysis is refernid to at any point in the statute or its legislative history, an omission winch cannot h* deemcil inadvertent in light of the explicit cost-benefit requirements inserted into other regulatory legis lation.11 Finally, the legislative history of the feasibility re- Hiihoment. see n. S, xuprti, demonstrates that Congress' sole concern was that standards be economically and technolog ically achievable. The legislative intent was tO prevent the Secretary frum materially harming the financial condition of Kituluig (.I.M-mitv m I'm- word mi- Hrodivr HlksijUist iiiii.ti. pH- limn I.-I.-.'i i M hi ilt H-f riu>>. wliidi is l.i.-i u.-xii to invalidate an Ait of Conan--- in P'.-i.y St l.n liter I'n.iltni Carp. v. Uuftnl Cjtutrt. 295 (r. >. I'1.*'. W'ltil*- mi Mrniln-r I'KHWjt t>r i-fixjiu-nilv argot* that there p-in.i'ii.- i jii.H-*- l'"r -it-li ,i UmlriiH- in nnr jun-prink-me, I an frankly piu<!'-.l a- t<> win- ilie i.--ne i- thought t In- of ,mv ndt-vamr here. The nonili !i irsl imi iliH-i f;rn- i- de-i'-nt-ti to .i.'-nre lti.it the li|i>t fiiinhlut-nli*! devi-uui- Will U- nixie lie fungn-.-, tin- rln-tml representatives c-f the pi-ipli-. f.i'ii'-r ili.in li\ .nliiiiiii.-tr.urir->. Some minimal ilefiniiem-ss i* tii.-K i'on- ri-'inirisl m order mr Coujtrvrs to di-hqpttu its authority to .nltiiiiii-.tr uni- .istiiM-w Congri-- h.i- lx--*i -'illii n inly detinue lu re, The word `Tiiisilile" lies a riM-r>n il.li- plain hi.-'111111-, iinl it.* interpretation i-an In- inform*-! by oilier cmiHMl- in wiiirh I'iiii'.ti-". has il-isI it fieo tl. 27, su/iru. Siniv the term i- jil.'iiil in ill.- i.inii- n-iili-iHS- with die "no i-uiphiiee will suffer'* l.inz'i.i-zi'. :f i- rl'.ir di.it "livi-iMi-" ini',ins tis-hnohgH-aliy and cco- ii' iiiic illy .c In- \ il.H-. I'iii!i r ihi- Act, llu- Sei-ri-t.iry i.- .ilTord's! i-oiinirl- vr.ihli 111-gnul.ii'- tii.in iii- other .i.limiii.-tritur- .H-ting umler different rcg'il.iiori -i.U'iir.-. In -l.'.ft. t'en-n-v. h.i- tn.iile "the -ritk-.-ii (nihcy <i's-i.-ti.it-" in fIn*, i.i-e, etv "i`tr, at It* (|{kh Mjt t.-r, !., voiii-tirnng in tint n-uli >. Tin- i lnr.iliiy'- nj-|>r.-i.r .-ii'i-.-iim), .-m- nute, at t>->, tliat ilit* tii.iiili-I*-- gnUtui diitriiH- ini-lii !* lii.l.unl n tie- Ss-n-tiirv wen* [n-nuitlcii to rigiil.u*- ili'.'iiiiif I'tii i"ui'jii.inritiaIn-ks is pi.duly wriMig. Sm>li j -t.ilnir wmilil lx- i|iiin- il'liliui- aii-l wuiiM tlill- raiM* ilO l-rai-tiliilionjl (,11-ln'ii nit'l-r Silmblri Pmi/tuf. Mi.m.i.-r, ('"I'ori*.- *'ihi!*I n*i<ni:i||y diri'li- 'hat if mml'l I* U-tti-r in iM|iure imlii-ln' In bmr "ii-asihle" cimls thin to -iilij'-i-t Ami-ii'-aii wotki-fs to an imkliTininate ri-k uf Calicer and uthrf fatal iluv.ii-x-j. Jl S-e n 27, tuftro. OCCUPATIONAL SAFETY & HEALTH REPORTER ii'g'i'utcd ndrsiMcs m ,-i !.-i p, ,h,,ir, ,:,air-im-:t ( ui; g fi-" diu not 11. In id 11. | it i a 11I,, t".,. >c'->1 -t-Tr v from taking ri-jiul.i '.ot y actum w!u-p.: * p-j^i-d. ' m, .uvi, p, i- du.-;ry Tn older to deride tlii-, cast-, h -wever, it is ny[ iieve;-urv to r. -dir the qm-tioi. ulo-tbe,- t!,<. turm "fca.-du'tty" nuyeon- teinplAte .-mm b.ilai.i-mg uf the cnst and of rngcla- toi)" act ion." Taking ) .'o ii'muiit ll.e uncertainties m e\tsl.- ing iniiu-.i lodge, tbe n adr an express finding that tin- hazards of bt-n/ene wposui-.- v.ete sudu-iout to ju-ufv th regulatiuu s rusts. App 1'Joa. Any requirement to balance Cots ami benefits canm.t In- read to i>.\ululate lids wholly rational rnnelusiim, A contrary result, forcing the Secretary to wait fur quantitative data t mt, may nut be available in the foreseeable future, -.vuidd run directly counter to the protective purposes of the Act.:* Finally, respondents suggest broadly that the Secretary did not fulfill his statutory responsibility to act nn the basis of "research, demonstrations, experiments," and to consider "the latest available scientific data i:t the field, the feasibility of the standards, and experience gained under this and other health ami safety laws." 2P Lb N. C. > Gfio (b>(5). Here, they contend, the Secretary based his decision solely on "views and argument." Brief for R^qinudmits at r>2. 1 dis agree. The Secretary compiled :in extensive record composed of over 50 volumes of exhibits. Mn-t of tlim*. exhibits are tin* reported results of n-euruh ami demonstrations represont- v- Cunssre-S* anti|.;.ihy tuwi.r.l -.M-lvn-fir l.:.I;in*-:na i, evi'lrnt ihrrmghonl lie- )i-gi.-l.uie hi-inry of itn- Avt K-ir i-v.Kiipi*-- "The nfc-N th.it wiil St- iiirurn-it liv i-inphjii-r- m ih-m-i,* the -t:.iii!..rila of lieultlt .iinl >afe:y Uj lx- e-taJ>li.|it-l imd^r 'hi.- Uiil .irp. in niv view, r*-.-i.-<hi.iMe .uni m-i-i--nrv n*i- | ......... 'Al,..*iicr uv, .t8 i. diviiliiiil-*, ,ir<- tnoiiviili-ii by -unple huiii.niiiv nr !*y -inipJe (x-iiiiiniiii--. ive Call Ili* lungi-r |H .H" |,r'.!it- i*> I.- il-|. nJi-i.i up.n an n.i-.Ue ur imliialrliy ivcrk-ite." hi-grt. rii-tnn' I150-U51 fjrti, r.iuii'-'ini). Simi!:ir!y, Siiiator YsnmrnngU -*.-ii*-l: Ue urc talking uUmi. [tcoph-V lii-i*-, nut the iiiilrffi-n-m-t uf -utne i-o-i llf'l-'.xiiitantx. Wi- ar*1 talkit'U alxmt aZ-iirtug tin- mill ami wonit-ii whs work in our plant- and f.ii-mrii-- that they will gu hniiif afr.-r a it.iy'^ work with, (heir lu-lir-. uitai-t. \V*- an* t.dku.i almui .is-nriti" our Anii-riiMii worker.- win* work with 'I'-iully I'h.-iini-al* that whi-u tht-y have* ai'Ciill hi la In I :i few le:ir'.- -ni"rit\ they will net h.ue a.-i < Mttu l.tti-i( Inna cuiige-iK'n aii<| |*i-*>n in ih-ir Ixulie-, or -oim-'iimg rliai will -trike rhem tluivn U fnr*- they retu-h n'tin-iin-nt ag*-." fj"!-. Hi-t*ri all) N'nr mxsJ I ilirx-u-- tin- |xm*ibililv, r.il-xd by i*>'in-*-| |'nr {**-rrti>n-r in oral .irsiiiiinit, (lint ; ilei-l-mu In regulate a *i|b-l Ulh'f threat to hi-.-ilth a'ul .-afetv euiilil it-ell lx- rli.ill.-iiL'nl a- arbitrary jn<t .-apri-ii.iisi under tliv A<lfiniii-trutiiM Pru*.-e*lnri" Avt. Sx- Tr. uf Oral Arg., at 2-'l. He-|K>u(letitx ui.-** n.-ly un tie- -tainiurv rtx|uiri-nir*nf (h .i tlie Si-crr- l.iry may act only f* prenril ''inan-ri.il'' iinpainni-iit. Th*-v r-iiterui that (lie -laiuhml proiiiiiigateil here <l**-i ih.i fall wtiluu tbit i-aiegury lwe.tu*e llie ri-k ie rf* luw. Tlii- iiiii-rpn-l tii'.ii ilerivi- in. -n;i|>,rl tr*>m 1 in* l.*tnU` or it* letfi-l.-ifm- hl.-ti-ry, Tile -tatute it-elf -t.iti-x that -l.iliil.ih!- -hiMil'l ru-iire tliat no einplniix; will -uffer **Ili:it*'haJ impair- nieiii.'' nut rnalerial ri'aC uf iinp-iirriu-ur. Tim l.iiigua^e if lunsi-ti-ni with tlie l*"ji-laiivi- Iti.-inry. In an early vcr.iiiui of the Ael, llie w*>r<l "impairment'' wa- iinxhfii-1 by "ain* ' rather than ``iruiterinl." n. S. *i>psri Tin- fin-il>ihiy and in.it<-r*ilitv requirements wen- iitldaxj -iimihnneaxa-lv ax ;j,irl of an i-lTnrt to i|ii.ilify rli>- nngniai huiziiage .-mtliuruing the Stx-retarv to en-ure that "no em ployee will -uAer any int|inirmt-ii! "f health or fum-tintml i,ip.n'it\', or diiniMt-bixl life eqiertaiieyS'-nator O'liilimk Wa.- loliriTlitxl that the filira-ie "iitiv1' impairiueot wr.*d*l rix|iurt- thr fiecrc-tary to prevent m-evt hilex. 1 egtv Ih-tory -*45. Thai re!*|ynuhiite' foii.-lni*-<i*ii would pi-e an etMirtnims oli-taek* to .ffnrts to regulate tn\ie -idwi un-ex ntidi-r Jh-Vt (b)(5) Tin* probability <il i-onir.u-ttiig r.ineer will in uni-i nuiiextx he 'pule -mail with re-|*fr lo ,my j*: rri>-t*l.-*r Maiploiit*. It ihi* -tatuie w**r* read to aiiihoriz** the 7-10-80 Published by THE BUREAU OF NATIONAL AFFAIRS. INC.. WASHINGTON. DC 20037 MCD 000012831 CURRENT REPORT 11'^ ` I lit 1:11t a vail.i! i[m -cir- I.; | " T!,. S,.,T.-t n / (,f |Vr"c! a careful iL.-cm-inn of im-*. .f Lr^ m '.he s1itvmei11 11 n I' :i I y:!the permanent. <t;, n. I.i n I. H;a id I h i cmclu-jnns were m < >i ii i< led in f x t < i i-t\ t* {'.ridings o! fact. Where. a> Imre. there art* g.ip.s in e\:-r[ng knoivh'!^, the fvnvtavy's ch-cisum Must imee*.>unlv he based on cniidd-r*it;111 is nf polity as av<11 ,-js (in . mpirn ally verifiable furr. In pim-mg the (Jrr-ujiaU'>iial Snff'v jr,-| Health Act of PM), Congress was aware tli.it it v..is authorizing the Secretary to ri gulale in art-i-i uf mu* n 1dm uncertainty. Rot it intended to require stringent regulation <-\.-u when definitive infurpiHt.on was uuavnil.ilib* In o. diming the primissihlp level of exposure to benzene. the Secretary applied proper legal stand ard!). His determinations me supported by substantial evi dence. The Secretary's deeisiuit was one, then, which the governing legislation authorised him to make/' V In recent years there has been increasing recognition that the products of technological development may have harmful effects whose incidence and seventy cannot be predicted with certainty. The responsibility tu regulate such products has fallen to administrative agencies. Their task is not an en viable one. Frequently no clear causal link can be established between the regulated suln-tance and the harm to be averted. aucuviury to avt o*il> to ii.-.-'.re tl.it "no i-iuplm.i* will -ulTi-r iti.ili-n.it rnk of importm-iii,'' d* S-i-n i.iry w nld U* iitv.lii. il from ngii'.inng Mib-tnicc* wIim-Ii i-om-s ; mm..11 rek wirli n*-|-*-f to .my p.irliviil.ir employee but which will nqn**ilie|.-- n-nilt. in liie demto of nifrrfrfui^ members of the employee |xoi. *5 AIiIi.hieIi the Court of At>|hI* fi-d the Secretary's finding th:*t dermal nmtai-i with hetman- iimM c.ui-e l.'.ihi ium, it >i'f aside the derntal .ii:..- -'..iHur.l Im-imim' uf llir Scertc.iry'-* failure lu ix-rfurei an r'i|>cri- :-e*n: r---ttetie*tvl*l ly .tit miluiry wii . T!w* failure to romltict inis -.iiurtiin* Ui.'In- i-ourt, vM|alt*| the -t.itutun- mmireuietif that th* r. i.-rv :.< ..i. ill. K.i-i- ill "the l*el available evidence" urwi "the laleet f\ ;tl!.ii'M- <-ti-ti* til- ll.lt.l Itl ihr lirlll." Tn the hennnax )<et'nre I 1m- airt-my. n-|<uiulcitt> presented no Mibetjiifial ciialierge in ihe |nti-itn>u that Unzcne could Im' liwirtxvl through the --kin, ami tln-re evidence lu (lit- rni.r.l tu ~i| nerr that |nettiuu. both aiiiin.il ,ii I li.uiiaii IiuIht Im<I ii.uihI .-uvli alvur|iriun. In then* nrcuri- ?l.uire, dii* .Secretary "in Mol ulilignlcd to undertake aiMiliuual studies Minplv lieenn-c :i mini--> *<-nti)i| I hat Mu-lt -f i n In*?- would l*e informative. Til.* ini|>o-itiuii uf Mirli a n-i|iur<-iiii nt would paralyze the standard- setting prui-i-.- Tin* Servian'.- mandate i.-. tn aet uli the bnoia of ".n.iil.dile" evidence, nui evidetm* wlutlt may hwviiie available ill the future Tn -ettiiiy i-iiir tin* J.-rtual r-titit n-t -laiul.ird, the Cotiri of Appeals also rrinil on it^ (iMii'lii-inii lliai tin- .M-i-ri-tarv had lint .diown that Ou.mtP fi.itile ia-irt-hl.* .mid ri-Mill frutit the .-nimlard. A the tliM-n--iim nbuvt linin'.ilrj. the nmrt a|iple.il iw*t>trwt legal .-talid-inla iu ?o holding. 193 Risks M 1 >:tr n an* 'fit-ii inn -M ui11. >*. L ,n:n/un In.- ci-ir.-. i nr tui-tv <'f its u n 1 he astciu*y :r,list, h-rc h- m in-L!:; r to regukitniy action ;igjm-t po-viblv si il i.iaut ml risk-* or to unit, until mtue di-finitivi* inicnnat.on 1 j**i-- n u < available--h judy11lent which by 11v vety iidture caniu>t In* liast-.I sitlrlv on determpiution.s .if fat-l."' Those deli yiition-. in turn, have bc?ti made on the under standing tlmt judicial review would be available to ensure that the aiit-iM-y's di tcrniiiiations are supported by sub.-dAati.d C*videtin* and that its actions do not exceed the limits set by Congress, Tn the Occupational Safety and Health Art. Con gress expressed confidence that the courts would carry out this important responsibilitv But in this case the plurality has far exceeded its uttllmrily. The pluiality's `threshold finding' requirement t> mm In-re to be fmind in the Act and is antithetical to its basic purposes. "The fundamental policy questions appropriately resolved in (.'oiigres* . . . ar not subject to i e-exainimttion in the federal courts under the guise of judicial review of agency action.'' Vrrmrmt raaitce X'ltlrnr 1'tnrnr ('//. v. SttDC, 4ilA l:. 319. 5oS ( 1078) f entpiiasis in tuiginai) Smi lv this ij no 1* .w tme of the decision to ensure safety for ill" American worker than the derision to piorrcd uilh n'u<:l.-tir power. See tbi-l. necanse the appmncli taken by the jiluiality is so phmlv irreconcilable sciLli the Court's proper institution'll rob- 1 am net tain that it will nut stand the test of time. In alW-iikeliImud. today s decision uill come to be regarded as an extreme reaction to a regulatory srlnunt* that, as the Members of the plurality perceived it, imposed an unduly haish hiuderi cm regulated industries. But ns the Constitution "does not enact Mr. Herbert S*p**nct*r`s Social Stati's." Lotfeter v. A'r.tc l urk\ 108 L*. S. 45, 75 {1005 ) (Holmes, J., dissenting), so the responsibility tu scrutinize federal administrative action does not authorize this Court to strike its own balance between lha costs ami benefits of occupational safety standards. I am confident that the approach taken by the plurality today, like that iti Locher itself, will eventually be abandoned, mid that tlio representative brunches of government will once again be allowed to determine the level of safety and health protec tion to be accorded to the American worker. *"-vl' . I.i.wT.-ini'i*, Oi \iir|ii 11 i|t- !0-k: S*-n iu-i* .uni (It.- 0*-n*rnmi;i. iH'll of .Siiplx Sli-Wiri, ftimtoM-. nl I.ili^rtv. Il>rv;rilY Jint f r.-ilcrriiiy, 11m- ('u)I*^-iivm N-.lnri- nl Ku\rruiiiiii iii.i! .cut .fn.lin.il i<!% of Ailnmii-lr.iiivL* At 'tiiii, 7 Knvin-inn-ii il l,:i- a'il 40U-47A 7.1080 Published by THE BUREAU OF NATIONAL AFFAIRS. INC . WASHINGTON. OC 20037 MCD oooo.icy3v 194 Journal MEETINGS SCHEDULED July 24-25 -- Toxic Chemical Safety. Washington, D.C. i Registrar, Starson Corp., NHCI Div.. P.O. Box 133, Stan ton. N.J. 08885: tel: i 215) 258-7045). The course also will be held August 4-5 in Milford, Conn., August 11-12 in Scranton, Pa., and August 18-19 in Wayne, N J. July 28-August 1 -- Auditing Safety Program Management for Corporate Safety Directors, Atlanta, Ga. (International Loss Control Institute, P.O. Box 345, Loganville, Ga. 30249; tel: (404) 466-2208). July 28-August 1 -- Design and Evaluation of Industrial Ventilation Systems. Salt Lake City, Utah (RMCOEH, Attn: Katherine Blosch, Bldg. 112, Univ. of Utah, Salt Lake City, Utah 84112; tel: (801) 581-5710). July 30 -- How to Implement a Safety Program. Burbank, Calif. (Training Institute. 616 South Westmoreland Ave., Los Angeles, Calif. 90005; tel: (213) 385-6461). August 4-5 -- Hazardous Chemical Safety, Chicago, 111. (Carol Morris. J.T. Baker Chemical Company, Phillipsburg, N.J. 08865; tel: (201) 454-2500). The course also will be held August 7-8 in Cincinnati, Ohio, August 11-12 in Houston, Tex., August 14-15 in Atlanta, Ga., August 18-19 in Seattle, Wash., and August 21-22 in San Francisco, Calif. August 4-7 -- Hazardous Chemical Safety Management, Orlando, Fla. (Short Course Registrar, Eastek Corp., 3543 Baldwin Drive, Easton, Pa. 18042; tel: (215) 252-1737). The course also will be held August 18-21 in Minneapolis, Minn. August 4-8 -- Basic Safety Management, Houston, Tex., (International Safety Academy, P.O. Box 19600, 10575 Katy Freeway, Houston, Tex. 77024; tel: (713) 932-9400). August 4-8 -- Loss Control Management. Atlanta. Ga. (International Loss Control Institute. P.O. Box 345, Loganville, Ga. 30249: tel: (404) 466-2208). August 6-7 -- Hazardous Material Safety, Milford, Conn. (Registrar. Starson Corp., NHCI Div., P.O. Box 133. Stan ton. N.J. 08885; tel; (215) 258-7045). The course also will be held August 20-21 in Wayne. N.J. August 7-8 -- Fertilizer Safety, Salt Lake City, Utah (Maurice L. Greiner, Intermountain Fertilizer Safety School, c/o J.R. Simplot Company, P.O. Box 912, Pocatello, Idaho 83201; tel: (208) 232-6620, ext. 338). August 11-22 -- Industrial Hygiene Measurements. Los Angeles. Calif. (Institute of Safety and Systems Manage ment. Univ. of Southern Calif., University Park, Los Angeles. Calif. 90007). August 14-15 -- Pulmonary Function Testing for Industrial Nurses, Houston, Tex. (Occupational Lung Clinic, Inc.. 7777 Southwest Freeway, Suite 442, Houston, Tex. 77704; tel: (713) 777-4399). August 18-22 -- Fundamentals of Modern Safety Manage ment. Sacramento, Calif. (International Loss Control Institute. P.O. Box 345, Loganville, Ga. 30249; tel: <4041 466-2208). August 18-22 -- Development and Growth of a Modem Safety Program, Sacramento, Calif. (Ernest Chaney. Inter nationa) Loss Control Institute, P.O. Box 345, Loganville Ga. 30249; tel: (209) 485-3720). August 19-21 -- Recognition, Evaluation, and Control of Occupational Health Hazards, Monroeville. Pa. (Michael Russak. Industrial Health Foundation, 5231 Centre Ave Pittsburgh, Pa. 15232; tel: (412) 687-2100). 012833 OOOO tfCD Occupational Sofety & Heolth Reporter