Document 99GDGka2K1231jm2mKNKed1J7

l PLAINTIFF'S EXHIBIT oaufto f oouc MAIM . SAVIT OiUMOSAT SIMMOMt JAMCt O. ftACMMAM STTVCN W. OcOtOPCC- DOW-706 Doyle & Savit attorneys at law SUITE IOOO 919 eighteenth street, northwest WASHINGTON. O. C. 20006 OftfA SCOTT m WOCHft* MOUMSmA. mNuJt.0c4mIi1mOsoMm**** HCNAT CMAJCT. A A. t (20E! 659-*2*0 TELECOPIER NO. (202) 982-513 August 21, 1989 --f HllinMWAfc OSHA ENFORCEMENT ALERT P DANGER/HEALTH HAZARDS By: G. Lindsay Simmons and Henry Chajet On July 27, 1989, The Secretary of Labor, in an unprecedented federal OSHA enforcement action, posted "imminent danger" notices in a brake shoe plant to prevent further employee exposure to asbestos. (See enclosure). Accompanying these notices was a set of citations for 113 violations of OSHA standards, carrying over $2.7 million in proposed penalties. These fines are based upon the employer's alleged "knowledge, willfulness and complete disregard" of the dangers involved in exposing its workers to asbestos. A week later, on August 2, 1989, the Secretary filed a Complaint in the U.S. Court for the District of New Jersey seeking an injunction that would require the employer, Friction Division Products, Inc., to take the necessary steps to remove the conditions of imminent danger immediately. The importance of this enforcement action is that the Secretary has never before sought to use the imminent danger provision of the OSH Act where a health hazard is involved. This statutory provision empowers the Secretary to seek an order enjoining^/ conditions or practices in a workplace which: * could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act. 29 U.S.C. 662(a). Oral argument on the Secretary's request for injunctive relief is scheduled for-the end of this month. . If you have any questions, or if we can be of assistance, please telephone us. 210 o8 i S02 T 0 2 I8201$ 1/ unlike the Mine Safety and Health Administration (MSHA), and some state enforcement agencies (e.g. California), federal OSHA inspectors do not have "imminent danger" closure order powers, and must seek court action to accomplish a closure. Under MSHA, in 1988, approximately 1200 imminent danger orders were issued during 170,000 inspections. In California, during 1985 state inspectors issued 246 closure orders during 18,000 Cal-OSHA inspections. U.S. Department of Labor Occupational Salety and Health AdmantsUMion NOTICE Inspection Number 106740848 deporting 10 0213900 of Alleged Imminent Danger (to Employer(s) and Employees) An tospecbon has been conducted ol a place ol employment in whidi employees d employees) are working. located el. North Enterprise Avenue, Trenton, H.J._____________________ and described as kSows VriPmHnrrg - jn anhwarne. hralra msniifarrurar------ On tie basis o mis irepecllon, I is dtoged fid an ImnUnert danger to employees sdds In tid A DANGER EMSIS WHCH COULD REASONABLY BE EXPECTED TO CAUSE DEATH OR SEROUS. PHYSICAL HARM WMEDtATELY or bate* be imminence of such danger can be dminded twutft toe enfasaamert prooedtsss otoerwtea provided by toe Ooa*>dtond SMdy and Hedto Act ol 1970 (29 US.C. 651 el saqj. herdndtor islsned to as tie Act In aooadance veto tie primidone of Secfon 13(c) of tie Act tie employer^ and el emptoyeee aCeoled by twee oondtons condbSng an dtogad Imminent rtenger ere being Wormed d tie poedbie danger by tie pootnq o> We Notoe d A--qed toewinenl Danger near tie condtfar(a) deeeribed below. The onptoydte and el dlected emptoyeee ate Brewtee being Wormed I Stwlbe recommended to tie Secretory oi Labor tid ha a itoejudtoW raW provided by tie AcL The Act provide* tod tw Unted StoW CWrfct Court ipon peffcn oi tie Seoratory oI Labor, to order tie amptoyaddte take aucb acton a* ie neoeaeaty to mUL oorvaoL or remove Me SBsgso efiWnH Qvgs< eWonQi wsw tie removd of omploym tram to (tangvous vn. TNe notoe doaa not oonaduto a OWon ol noncBon ov nopow rmvy. ^pprapnw vnm ora Nottcaflon oi Propoaad Fendty wi ba leauad to tia ^ Description of Alleged Imminent Danger Improper housekeeping techniques increase aoployee expoeuree to elevated alcbocne concentrations of aabastoe fibers which plecea then at a substantially -- increased risk of developing asbestosis# nssothellana*. lung cancer# and C/. gastrointestinal cancer. The employer shall limedlately abate this hasaed Cl- through the following: 1) hire a licensed asbeatoe ebatenent contractor to ~ thoroughly clean the facility# or hire a competent person as defined in 29 CfR 1926.58 to supervise a clean-up of the entire facility: 2) ensure that asbeatoe spills are cleaned up as soon as posslbla; 3) prohibit the shovelling and dry sweeping of asbeatoe: 4) provide and use only vacuum clsansrs equipped with HEM filters to maintain ail surfaces as frae as practicable of aocunulations of asbestos fibers. 201$ This Notice oi Aleged Imminent Danger mud remain posted until removed by a representative ol tie Occupational Salety and Health Administration. U8 DCMHTMENT Of 1ABO/106NA MAMJDN EXECUTIVE AMK BUTLMNQ4.4URE4JQ 701 ROUTE 7J SOUTH MAM3DH.NJ.080M ~] Signed and dated d thi day oI Compfiance Sately and Health Officer Occupational Sately and Heath Administration PrvHout Edition Obroltl* 19 FornmoO. SuH'Am-fil U.S. Department ol Labor Occupational Safety and Heath Administration NOTICE Inspection Number 106740843 Reporting <0 0213900 of Alleged Imminent Danger (to Employees) and Employees) An has bean conducted ol a place d employment In which employee* d employe** ate working, located at-----------------North Enterprise Avenue, Trenton, H.J.______ and described aa fdowe FrtrHm. ntutatnn Prndnrta . a aakeatna hralcananiifar.ttirr.r On the bade of He Inspector*, t la Staged tot an kwmlnant danger to employees edata In Vial A (MNQER EXISTS WSCH COULD REASONABLY BE EXPECTED TO CAUSE DEATH OR SEROUS PHYSICAL HARM MMEDIATELY or baton N Imminence d such danger can be efminatad Veou^i *te eNoroamerX prooedurea otorwiee proMded by to Oocupafcnf SSety and HeSto Ad ol 1970 (29 U5.C. 651 at eeq.), haratoto ratarrad to aa to Act to accordance Sh to pnwWona ol 8aclon 13(e) d to Act to anytayotW and d amployeee aSactad by toaa condBona conaBkAng an Staged Immlnert danger an batog Wormed d to poadbta danger by to poaingol to Nofce ol Alagad Immtoant Danger near to condtontf daaoribed below. The smptoystfl) end e--m-tp. aoy--w s--r-o---w-- mi-h_ cs-th--q-UinLMvnnuwd i ra tco -v-mJ* kokodt reoommendad to to Secretary d Labor the! ha aaafc to JudbM nW prodded by to AcL The 43 prodda M to Unled SMaa OMrfet Court upon patoon ol to flecretoty d Labor, to ordar to employed* to taka such action n b naoaaaary to avoid, corract or amove to alagad Imminert danger. Including, whan naoaaaary, toiammal d empioyeae kam to ttongaroua ana. This nolos doea not coneSute a Ctalon ol Staged NaMcalon ol Proposed Penalty. Appropriate Ctalon NoMcaton d Pnapoeed Peretty wS be Issued to to Description of Alleged Imminent Danger Btployeee exposed to elevated airborne concentrations of asbestos fibers without adequate respiratory protection and personal protective equipment are at a substantially Increased risk of developing asbestosls* mesothelioma* lung cancer* and gastrointestinal cancer. The employer shall isnedlately abate this hazard through the following} 1) fit test employees to ensure the selection of a respirator which minimizes facepiece leakage and provides an adequate level of protection} 2) provide and require the use of such respirators at all times that amployeee are in the regulated area: 3) ensure that respirators are cleaned after each use and maintained in good working condition: 4) provide and require the use of protective clothing at all times that enployees are In the regulated area or ray be exposed In excess of the PEL) 5) discipline empioyeae for failure to comply with required respirator and protective clothing usage} 6) hire a consultant to monitor and report on carpi lance with all of the conditions above. r W T H S i . i i <? 9*ZtfZ01S This Notice ol Aleged Imminent Danger must remain posted tint) removed by a representative d to Occupational Salety and Health Administration. r U8 DCnMTMECT OP LABOR OdHA MAMJON Kxeamvc PARK WUMNOJ.'iUrfE 440 701ROUT171 SOUTH MARUDN.NJ.OeOU ~1 Signed and dated at this day of Compfianca Safety and Health Officer Occupational Safety and Health Administration U.S. Department oi Labor Prrrious Edition ObMlt. 19 Fort" OS (A e* U.S. Department of Labor OccupJltorxjl Safely 8td MeWh Adtnmrstraion NOTICE Impaction Number 106740848 Reporting 10 0213900 of Alleged Imminent Danger (to Employer(s) and Employees) An etpr*" has bean conducted of a piaca o(emptoymenl In which employees of emptoyer(i) are worMng, located M --, Hnrfh Fjitprnrlae Avenue. Ireatoa.,-M. J. ---------------------------------------------------------- and described as Wows Friction Division Products - an aabeatoa brake manufacturer----------------------- ST02B13 On he beds of tok tnapacHan. I k i to employees adds In tat A DANGER EX8T8 W6CH COIAD REASONABLY BE EXPECTED TO CAUSE DEATH OR SBVOUS PHYSCAL HARM IMMEDIATELY v before toe Imminence cf sueh danger can be eWnetod torou^t toe ertacamert pracadurae otoerwke prodded by tie Oocupetond SMUy end Heefti Ad of 1970 (29 US.C. 691 at seal herdndler telened to es toe AcL In eocordenoe wito toe preMdone of Sedan 13(c) of toe AcL toe amptoyvM and dl emptoyeee effected by I conadulng an staged imminare danger are being Informed of toe poedblo danger by toe posting of tod NoDoe of Alagad knmlnanl 3 Danger near toe oondkonf*) deecribed batow. The amptoywft end dl ejected emptoyeee are Btewke being Warned toel I w* be recommended to toe Secretory of Labor tost he eeel> toe Judbkf raM prodded by tie AcL Thp Ad pravidee M fie UriMed SMee OWrid Court Is empowered upon peMton of toe Secretwy of Labor, to order toe employe^ to Me euoh adton as k neoeaaary to amid. conecL or isnaae toll SBSgOO ifarViln OHngST* iWsOnp) W1W 1 of emptoyeee from toe dangerous i Thk notice does nd oondftrte a Ototion d i NdNcaian of Prapaeed Pendty. Appropriate CUtone or a NaMcelon of Proposed Pena#y si be keued to toe empioyer(tl Description of Alleged Imminent Danger Bnployeea exposed to elevated airborne concentrations of asbestos fibers without adequate hygiene procedures and practices are at a substantially inereaaad risk of developing aabeatoaia# msaotheliona* lung cahcer* and gaatrointaatlnal cancer. The employer shall* lanedlately abate this hasard through the following: 1) require employees working In regulated areas to shower at the end of each work shift# and provide soap and towels ao that employees may coBDly with this requirement: 2) ensure that employees vacuua clean their protective clothing before entering the lunchroom* and wash their hands and faces prior to eating or drinking: 3) ensure Chat contaminated clothing la not removed from the change room except for laundering: 4) ensure that contaminated clothing Is stored and transpoctad only In sealad labelled impermeable containers| 5) ensure that any third party laundering the contaminated clothing ie notified of the requirements of the OSBk asbestos standard and la made avers of the harmful affects associated with exposure to asbestos: 6) hire a consultant to monitor and report on compliance with ail of the conditions above. This Notice of Aleged Imminent Danger must remain posted und removed by a represertatrve of the Occupational Salety and Heath Administration r ~| Signed and dated at U8 DWRTMfNT OP IABOA 04HA MAAUOW EXECUTIVE PARK BULMMt*4UlllM0 INs day of 701 ROUH 73 SOUTH MARUDN.NJ.000U L Ccmptanca Safety and Health Officer Occupational Safely end Heatih AdminktraSon __I U.S. Department oi Labor_____________________ Prrriout Edition Oboll 19 Form OSMAH n. <4/8*1 4214201$ Notice: This opinion ie subject to formal revision before publication in the Federal Reporter or U.S-App.D.C. Reports. Users are requested to notify the Cleric of any formal errors in order that corrections may be made before the bound volumes go to press. Hnttrfc States Qlmrrt nf Appeals FOR THE DISTRICT OF COLOMBIA CIRCUIT No. 86-1359 Building and Construction Trades Department, AFL-CIO, petitioner v. William E. Brock, Secretary of Labor, respondent Asbestos Institute, Minnesota Mining and Manufacturing, intervenors No. 86-1360 American Federation of Labor and Congress of Industrial Organizations, petitioner y. United States Department of Labor, et al., respondents Asbestos Institute, Minnesota Mining and Manufacturing, intervenors Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costa out of Mm*. SK18Z01S 2 No. 86-1410 Asbestos Information Association/North America, ETC., et al., PETITIONERS V. Occupational Safety and Health Administration, et al., RESPONDENTS Asbestos Institute, Building and Construction Trades Department, Minnesota Mining and Manufacturing, intervenors No. 86-1411 Asbestos Information Association/North America etc., et al., petitioners y. Occupational Safety and Health Administration, et al., respondents Asbestos Institute, Building and Construction Trades Department, Minnesota Mining and Manufacturing, intervenors Petitions for Review of Orders of the Occupational Safety and Health Administration Argued April 24, 1987 Decided February 2,1988 sitm ttt 3 George H. Cohen, with whom Jeremiah A. Collins, Cynthia L. Estlund and Laurence Gold were on the brief for American Federation of Labor and Congress of In dustrial Organizations, petitioners in Nos. 86-1359 and 86-1360. Elihu I. Leifer for Building and Construction Trades Department, AFL-CIO, petitioner in No. 86-1359 and intervenor in Nos. 86-1360, 86-1410 and 86-1411. Edward W. Warren, with whom Arthur F. Sampson, III and Timothy S. Hardy were on the brief for Asbestos Information Association/North America, petitioner in Nos. 86-1410 and 86-1411, and intervenor in Nos. 861359 and 86-1360 and Asbestos Institute, intervenor in Nos. 86-1410 and 86-1411. Robert E. Holden and James A. Brown also entered appearances. Andrea C. Casson, Assistant Counsel for Appellate Litigation, Department of Labor, with whom Cynthia L. Attwood, Associate Solicitor for Occupational Safety and Health, Department of Labor, and Joseph M. Woodward, Counsel for Appellate Litigation, Department of Labor, were on the brief for respondent. Peter G. Nash entered an appearance for intervenor Minnesota Mining and Manufacturing Company. Before: Buckley and Williams, Circuit Judges, Stanley A. Weigel*, Senior District Judge, United States District Court for the Northern District of Cali fornia. Opinion for the Court filed by Circuit Judge Williams. Opinion dissenting in part filed by Senior District Judge Weigel. Williams, Circuit Judge. In July 1986 the Occupa tional Health and Safety Administration of the Depart Sitting: by designation pursuant to 28 U.S.C. 294 (d). 4 ment of Labor ("OSHA" or the "Secretary") issued re vised standards governing workers' exposure to asbestos, tremolite, anthophyllite and actinolite (together referred to simply as "asbestos") pursuant to its authority under 6(f) of the Occupational Safety and Health Act of 1970 (the "Act"), 29 U.S.C. 655(f) (1982). 51 Fed. Reg. 22,612 et seq. (1986), codified at 29 C.F.R. 1910.1001 (1987) (general industry standards) and 29 C.F.R. 1926.58 (1987) (construction industry stand ards) . In these consolidated appeals, the Asbestos Information Association/North America and other petitioners repre senting industry (collectively referred to as the "AIA") attack the Secretary's findings that asbestos under the prior permissible exposure level ('TEL") caused signifi cant risk, question the technological feasibility of the new PEL, challenge the rule against the spraying of asbestoscontaining products, and assert that the record does not support OSHA's decision not to require smoking-related programs and controls. Two unions, the American Fed eration of Labor and Congress of Industrial Organiza tions ("AFL-CIO") and the Building and Construction Trades Department, AFL-CIO ("BCTD"), maintain that a lower PEL is technologically feasible for most industry subgroups, and argue that a short term exposure limit ("STEL") is feasible and would further reduce health risks. BCTD further claims that the Secretary acted un lawfully in refusing to adopt their recommendations re lating to many subsidiary aspects of the rule, including "action levels," compliance methods, monitoring, report ing, warnings, medical surveillance, questionnaires, rec ords, hygiene, and respirator use. We uphold the Secretary's findings concerning signifi cant risk and the feasibility of the new PEL, and find many of BCTD's challenges to details within the various provisions to be without merit. We cannot, however, find substantial evidence supporting several of the agency's jed rebestos, eferred under Act of 1 Fed. C.F.R. and 29 stand- mation repre- `AIA") ier the signifi:he new sbestosoea not -related ui Fedganizacruction ain that ndustry re limit ? health cted un ions rencluding reportres, rec- f signifiand find various ver, find agency's 5 conclusions: its categorical ban on the spraying of as bestos-containing products and its decisions not to adopt a lower PEL for certain major industrial subgroups, a STEL, smoking-related regulations, and some of BCTD's suggested safety measures. We therefore remand the case to the agency for reconsideration of these issues. I. Background Asbestos is a generic term applied to a number of naturally occurring hydrated, fibrous, silicate minerals. Final Regulatory Impact and Regulatory Flexibility Analysis o/ the Revised Asbestos Standard (OSHA Office of Regulatory Analysis, June 11, 1986) {"Impact Analysis"), Joint Appendix ("J.A.") at 1541, 1542. It is characterized by flexibility, high-tensile strength, and re sistance to heat and other destructive conditions. Id. As bestos is classified into different grades by fiber length and resilience. Id. at 1543. The longest and strongest fibers are generally used to make textiles, electrical in sulation, and pharmaceutical and beverage filters. Id. Medium length fibers are used in the production of as bestos cement (A/C) pipe, A/C sheet, clutch facings, brake linings, asbestos paper, packings, gaskets and pipe coverings. Id. The shorter fibers are used primarily as reinforcers in plastics, floor tiles, coatings and com pounds, special papers and roofing felts. Id. Unfortunately, asbestos creates very serious health hazards. During the production of asbestos products, and in their later handling and use, tiny asbestos fibers are released into the air. Impact Analysis, J.A. at 1552. They are also released when old asbestos-based insulation is removed or disturbed in the demolition or repair of buildings and ships. Id. at 1562, 1565, 1567. When in haled, the fibers settle in the lungs and often travel to other organs. Inhalation of the fibers causes, or is at least causally related to, a number of serious and often fatal diseases. im s z o is 6 These include lung cancer, asbestosis (a chronic and dis abling lung disease), mesothelioma (cancer of the lining of the chest cavity or abdomen), and gastrointestinal cancer. 51 Fed. Reg. at 22,615/3. It is also associated with an increased risk of cancer of the esophagus, stom ach, colon, kidneys, larynx, pharynx, and buccal cavity. Id. at 22,616/1. In the preamble to the standards here at issue, the Secretary emphasized that "OSHA is aware of no instance in which exposure to a toxic substance has more clearly demonstrated detrimental health effects on humans than has asbestos exposure." Id. at 22,615/3. In June 1972 OSHA issued a standard which estab lished an immediate PEL of 5 fibers per cubic centi meter (f/cc) and a ceiling of 10 f/cc. (A cubic centi meter is one-millionth the size of a cubic meter. Thus 5 f/cc means 5,000,000 fibers per cubic meter. The convention appears to be to express the limit in f/cc, even though this conjures up a far less vivid image than does the measurement in fibers per meter.) The rule also provided for reduction of the PEL to 2 f/cc as of July 1976. We substantially upheld the standard in Induatruil Union Department, AFL-CIO v. Hodgson, 499 F.2d 467 (D.C. Cir. 1974). This initial standard was based primarily on evidence of a causal relationship between asbestos inhalation and asbestosis. See 51 Fed. Reg. at 22,614/2. In 1975, based on new evidence of the carcinogenic properties of asbestos and advances in the technology of monitoring and protection, OSHA proposed a new rule that would reduce the PEL to 0.5 f/cc and the ceiling limit to 5 f/cc. 40 Fed. Reg. 47,652 (1975). The pro posal was based on the premise that if (as the agency believed) there was no level of asbestos in the workplace that would be absolutely safe, it was authorized and re quired to set a PEL as low as was economically and tech nologically feasible. 51 Fed. Reg. at 22,614/2. The Su- prem Indn Petn zene ulga: exist In men Safe > CO -4 ' O ro co ro CO find star prei rali Am 505 seen mat a deal cide 3. woe ten: ren 224 7 is i disning :inal ated tomvity. -e at e of has s on 3. 3tab:entientiThus The even does also July nduaF.2d based :ween g. at >genic gy of rule eiling i progency cplace id re~ ! teche Su- 7 preme Court rejected this concept of absolute safety in Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 639-62 (1980) ("Benzentf'), in favor of the view that the Secretary may prom ulgate standards only "where a significant risk of harm exists." Id. at 662. The 1975 proposal seems to have died. In April 1984, acting in part in response to recom mendations of the National Institute for Occupational Safety and Health (NIOSH), see NIOSH, Revised Rec ommended Asbestos Standard (Dec. 1976), J.A. at 119, and a NIOSH/OSHA task force, 51 Fed. Reg. at 22,614/ 3, OSHA issued a notice of proposed rulemaking suggest ing adoption of either a 0.5 f/cc or a 0.2 f/cc PEL, 49 Fed. Reg. 14,116/2 (1984), and raising the question of whether a 0.1 f/cc PEL might be feasible. Id. at 14,117/1. OSHA held public hearings and received written sub missions before and after the hearings. The process gen erated a record with over 340 exhibits and approximately 55,000 pages. As a result of its analysis, OSHA made a finding of a "significant risk" at the then-prevailing standard of 2 f/cc, id. at 22,647/3, a finding that is a prerequisite to more stringent regulation under the plu rality opinion in Benzene, 448 U.S. at 614-15. See also American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 505-06 n.25 (1981) ("Cotton Dust") (majority opinion seeming to approve significant-risk criterion). It esti mated that at the PEL of 2 f/cc asbestos use generated a lifetime excess risk per 1000 workers of 64 excess deaths from asbestos-related cancers, and an excess in cidence of 50 cases of asbestosis. 51 Fed. Reg. at 22,644/ 3. Although it found that reducing the PEL to 0.2 f/cc would reduce the risk of cancer and the risk of asbestosis tenfold, id. at 22,644, Table 6, it concluded that the risks remaining at 0.2 f/cc were still significant. Id. at 22,648/1. The revised standards specify that the new 0.2 PEL is to be achieved primarily through engineering and work tltlK O lS 112182OiS 8 practice controls. 29 C.F.R. 1910.1001(f), 1926.58 (g) . Where it is not "feasible" for an employer to meet the PEL through these measures, it must resort to sup plementary respirator use. 29 C.F.R. 1910.1001(f) (1) (iii), 1926.58(g) (1) (ii). The standards also include various ancillary requirements, such as exposure monitor ing, medical examinations, labelling, protective clothing, designated regulated areas, clean change rooms, decon tamination areas, separate lunchrooms or lunch areas, and employee training. 29 C.F.R. 1910.1001(d), (e), (h) -(n); 1926.58(d), (e), (f), (i)-(m). The regulations establish an "action level" of 0.1 f/cc. If exposures exceed this level, employers must initiate monitoring, medical surveillance, and employee information and training pro grams. 51 Fed. Reg. at 22,679/3. The more rigorous programs, such as establishment of regulated areas, and provision of respirators, protective clothing, and hygiene facilities, are triggered by exposures at or above the PEL. 29 C.F.R. 1910.1001(e), (f), (h) & (i), 1926.58(e), (g) & (j). Section 6(b)(5) of the Act provides that when the Secretary chooses to regulate toxic materials he must set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material im pairment 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. 29 U.S.C. 655(b) (5). In Cotton Dust the Court held that the "feasibility" standard of 5 6(b)(5) does not require the Secretary to balance cost and benefit in de fining a standard, and clearly manifested the Court's belief that the Act did not permit the Secretary to do so. 452 U.S. at 506-22. The Act provides for review under the substantial evidence standard. 29 U.S.C. 655(f). This has a some- .58 eet apf) ide orng, onas, e), ana eed ioa] >rooua ind ene the (i), the .ust to ible imi if :ard his held not de bt's i do itial >me- what special meaning as applied to essentially legislative judgments made in informal rulemaking, such as the agency's decisions here on "significant risk" and "feasi bility." Recognizing both OSHA's superior technologi cal capacity and its broad legislative mandate, the courts have not required the agency to "support its findings . . . with anything approaching scientific certainty." Benzene, 448 U.S. at 656. They have instead tailored their review to the nature of the judgment, requiring OSHA to "iden tify relevant factual evidence, to explain the logic and the policies underlying any legislative choice, to state candidly any assumptions on which it relies, and to pre sent its reasons for rejecting significant contrary evi dence and argument." United Steelworkers of America v. Marshall, 647 F.2d 1189, 1207 (D.C. Cir. 1980) {"Steelworkers"), cert, denied, 453 U.S. 913 (1981). We tackle industry challenges first, then the unions'. The only real overlap is the general issue of evaluating agency explanations for rejecting proposed measures for further reducing risk. See especially part II.E infra, II. Industry Challenges A. Significant Risk OSHA selected the epidemiological studies it regarded as the most relevant and reliable, and then, using the assumption that the dose-response relationship was linear, generated a table describing the relationship between ex posure to varying levels of airborne asbestos and contrac tion of various asbestos-related diseases. 51 Fed. Reg. at 22,644. As noted above, it found that the existing stand ards of 2 f/cc carried an excess cancer mortality risk of 64 deaths per 1000 asbestos workers, assuming a 45-year working lifetime. Id. at 22,644, Table 6. It found this excess risk significant. 51 Fed. Reg. at 22,647/3. Even under the assumption of a 20-year working life, it found the risk at the existing PEL to be 44 extra cancer deaths per 1000 (which it also found significant). Id. It be- tu itm s mmii 10 lieved that a reduction in the PEL to 0.2 f/cc would de crease the excess mortality risk and asbestosis risk by 90% under both 45-year and 20-year exposure assump tions. Id. OSHA acknowledged that a significant risk of contract ing asbestos-related diseases would remain at a PEL of 0.2 f/cc or even 0.1 f/cc. Id. at 22,648/1. It explicitly stated that it chose the 0.2 level not because it would eliminate significant risk, but rather because it was the lowest feasible level. Id. AIA attacks the finding of significant risk as unsup ported by substantial evidence, identifying four errors, each basically one of analysis. We address them seriatim. L Exposure duration. AIA claims that because the median duration of employment in representative indus try sectors is approximately five years, the Secretary erred in assuming a 45-year worklife in performing his risk assessment However, though the assumption may well be unrealistic, it appears to conform to the intent of Congress. For toxic substances, 6(b) (5) requires the Secretary to select the standard designed to assure 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." 29 U.S.C. I 655(b) (5) (emphasis added). Even if it is only the rare worker who stays with asbestos-related tasks for 45 years, that worker would face a 64/1000 excess risk of contracting cancer; Congress clearly authorized OSHA to protect such a worker. (Whether OSHA might adopt more rea listic assumptions in the face of the statute is an issue we need not address.) We note that even if OSHA as sumed an exposure duration of only one year, its tables indicate an excess cancer mortality risk of three deaths per 1000 workers at the 2 PEL. 51 Fed. Reg. at 22,644. Table 6. We doubt if a court could find that risk insignificant as a matter of law. See Benzene, 448 d de le by ump- ractL of ieitly ould i the osuprors, atim. i the ldus3tary ? his may nt of i the that ealth 7ular I for 0(5) orker that cting otect : reaissue A. as:ables [eaths -,644. risk . 448 11 U.S. at 655 ("if the odds are one in a thousand that regular inhalation of gasoline vapors that are 2% ben zene will be fatal, a reasonable person might well con sider the risk significant 2. Inclusion of smokers. AIA claims that because smoking and asbestos have synergistic effects (i.e., the cancer risks of a smoking worker exposed to asbestos are greater than the mere sum of the risks of smoking and asbestos), see 51 Fed. Reg. at 22,616/1, OSHA's reliance on studies that included a high proportion of smokers led it to overestimate the risks posed by asbestos. The claim is not that OSHA failed to control for smoking; it is that the agency considered smokers' incremental risks from asbestos and should not have done so. But 16(b)(5) calls on OSHA to set standards such that "no employee" will experience the forbidden level of risk. We under stand the employers' aggravation that they are being forced to bear part of the burden imposed by employees' decisions to smoke, but we do not think that at this stage of American history smokers can be regarded as so far beyond the pale as to require OSHA to disregard them in computing the risks of asbestos. As we understand the methodology, the inclusion of smokers within the sample correctly compares the risk that a heterogeneous group of workers normally faces in the workplace with the risk that this same group faces when working with asbestos. This follows from the find ing that while smokers face a greater absolute risk from exposure to asbestos than do nonsmokers, asbestos posed the same relative risk to the two groups. 51 Fed. Reg. at 22,650/1. Thus, suppose that lung cancer risks are as follows: Incidence per 1000 workers Non-smoker, no asbestos Smoker, no asbestos Non-smoker, asbestos Smoker, asbestos X 10X 2X 20X 192011 f I If there were 4000 workers, 1000 in each of these four cells, the total lung cancer deaths will be 33X, compared to 22X for 4000 workers of whom none was exposed to asbestos but of whom half were smokers. Excess deaths from asbestos would be 11X/4000. It is clear that the deaths from smoking workers exposed to asbestos swamp the number that would result if no one smoked. (Excess deaths from asbestos if no one smoked would be 8X minus 4X, or 4X.) Yet, assuming OSHA is within the law in its decision not to banish smokers from consideration, there is no methodological error. As in the case of exposure duration, acceptance of the AIA's smoking argument would not undermine the finding of significant risk. Smoking has not been linked to mesothelioma, and the Secretary found a risk of 1.64 excess mesothelioma deaths per 1000 even at the new 0.2 f/cc PEL. Id. at 22,650/2. This he expressly found significant, idL, and we could not probably overturn that judgment as a matter of law. 3. Disregard of gap between compliance levels and the PEL. When estimating excess mortality at a particular PEL, OSHA assumes a constant particulate concentration level equal to that PEL. ALA argues that in order for a firm to ensure that its peak levels are within a PEL, its average particulate levels must be well below that limit. For example, one of its experts concluded that to achieve compliance with any given PEL, "employers generally aim to achieve average airborne asbestos levels between one-half and one-quarter of the PEL . .. ." J.A. at 1047. They assert, therefore, that an accurate risk assessment ought to measure the danger posed not by a proposed ceiling concentration, but rather by the average concentration that such a ceiling would bring about in the real world. t__ . We can imagine circumstances where the claim would be successful If compliance with a given standard en- , k . Ull of tY rat^ ^arFirs err ucl ^eP 3Uf resi; expc wou ma[ ^ ^ow: dur. for agg on aurt ^. beh * ^e "9^ SI t?ai 8^on stuc chn mot four iared id to jaths ; the .-amp xcess linus w in ition. rf the finded to 1.64 new found i that d the icular mtraorder hin a below duded "emle as)f the hat an langer rather would would rd en- 13 tailed average exposure levels that were only a fraction of that level, calculation of significant risk at the nominal rather than the real average would strike one as arbi trary and capricious. But that seems not to be this case. First, the agency asserts that ALA. has greatly exag gerated the proportion of uncontrollable exposure level fluctuation. See OSHA Brief at 63-66. But see ALA Reply Brief at 13 n.5. If OSHA is correct, then AIA's suggestion as to the likely ratio between a PEL and the resulting average exposure level will be similarly exag gerated. Second, even if we accept the view that average exposures will be one-half the ceiling, the new PEL of 0.2 would entail an average exposure of 0.1, with an esti mated excess risk of three deaths per 1000 workers, which could well be found "significant." We note that this claim, unlike the first two, does not founder on any legal obstacle. While the Act plainly al lows (and possibly mandates) use of unrealistic exposure durations and inclusion of smokers, there is no legal basis for totally disregarding a gap between real-world aver age exposure and nominal legal ceilings. ALA loses here on the facts. The Secretary will doubtless want to make sure that this potential risk of arbitrariness does not be come actual in the future; a step toward that goal would be for him to make his own calculations of the relation between legal ceilings and implied real exposures. 4. Loading the dice. Finally, ALA disputes many of the Secretary's technical assumptions, and charges that "OSHA's potency assessment repeatedly resolved hotly disputed scientific issues in favor of higher potency es timates." ALA Brief at 60. For example, it challenges OSHA's adoption of a linear dose-response model for ex trapolating risk at low exposure levels, OSHA's conclu sions on the applicability of various lung cancer risk studies, and OSHA's decision to pool amphibole and chrysotile studies in developing a mesothelioma risk modeL See id. at 25-26. sms ii 14 In assessing these claims, it is clear that our function is not to decide what assumptions or findings we would make were we in the Secretary's position. Cf. Baltimore Gas and Electric Co. v. NRDC, 462 U.S. 87, 105 (1983) ("It is not our task to determine what decision we, as Commissioners, would have reached [on policy judgment as to correct treatment of nuclear waste disposal in Nu clear Regulatory Commission's individual licensing deci sions]."). When called upon to review technical deter minations on matters to which the agency lays claim to special expertise, the courts are at their most deferential. Id. at 103. Our primary duty is merely to scrutinize the record to ensure that the Secretary has made his findings of fact on the basis of substantial evidence and has pro vided a reasoned explanation for his policy assumptions and conclusions. Steelworkers, 647 F.2d at 1207. Here, we find that in each area of contention the Sec retary has identified the studies and authorities on which he has relied, and has described in some detail his reasons for choosing between competing alternatives. See, e.g., 51 Fed. Reg. at 22,632-38 (explaining his choice among various lung cancer epidemiological studies and his deci sion to adopt a linear dose-response model); id. at 22,63842 (explaining the derivation of his mesothelioma risk projections and his reason for using risk estimates from studies of mixed amphibole/chrysotile exposures as well as single-fiber type exposure studies). We conclude that the Secretary has adequate support for his scientific as sumptions and findings. On a somewhat different plane, AIA contends that the Secretary's risk analyses were consistently marred by a pronounced bias towards worker safety. AIA Brief at 60. Even were we to accept this contention as true, no relief would be forthcoming. The Supreme Court has made clear that "so long as they are supported by a body of reputable scientific thought, [OSHA] is free to use iction tfouid imore 1983) e, as jment i Nudecideterim to intiaL ze the idingB a proptions e Secwhich masons imong j deci12,638a risk i from j well le that ific as- lat the 1 by a rief at ue, no irt has a body to use 15 conservative assumptions in interpreting the data with respect to carcinogens, risking error on the side of over protection rather than under protection." Benzene, 448 U.S. at 656. Of course such leaning towards safety may sometimes have the perverse effect of increasing rather than decreasing risk, see, e.g., Nichols & Zeckhauser, "The Perils of Prudence," Regulation 13 (Nov/Dec 1986) ; see also Public Citizen v. Young, 831 F.2d 1108, 1113 (D.C. Cir. 1987); see generally A. WlLDAVSKY, SEARCHING FOR Safety (forthcoming), but AIA has demonstrated neither the existence of such an effect nor (what would be neces sary for us to reverse) that it exceeds what Congress was ready to accept. B. Technological Feasibility The AIA maintains that a PEL of 0.2 f/cc is not tech nologically feasible. First, it objects to the methodology of measurement. The new rule adopts for the first time a protocol intended to standardize measurement of air borne asbestos. The agency's aim is to eliminate varia tions in measurement due to (for example) different sampling techniques, equipment, mounting and clearing procedures, and rules for counting fibers. AIA argues that as the evidence of feasibility was derived from studies conducted without the new protocol, the results of those studies cannot be reliable indicators of what can actually be attained when workplaces are monitored un der the new protocol. It believes that OSHA ought to have established comparability between that method and those used in the feasibility studies on which OSHA re lied. Specifically, it argues that this should have been established by "side-by-side" testing, i.e., by conducting tests under the new protocol and under others (the ones used when generating the feasibility data), in the same place and at the same time. We do not believe the absence of such testing under mines the existence of substantial evidence for the feasi B lllilU bility of the 0.2 f/cc PEL. First, although side-by-side comparisons may be appropriate when OSHA changes protocols, we note that here OSHA has merely adopted a universal protocol where none had previously prevailed. Second, so far as appears, the new protocol is not mark edly different from one formulated by NIOSH in 1974, 51 Fed. Reg. at 22,686/1, nor from the protocol formerly used in OSHA laboratories, nor indeed from a protocol propounded by AIA itself, see OSHA Brief at 72-75. Third, in order to guard against random sampling error, the agency has determined to add the full value of the standard sampling error under the protocol to its meas urements in determining compliance. 51 Fed. Reg. at 22,654/2. Thus, although the PEL is 0.2 f/cc, OSHA will assert a violation only if it measures a level in excess of 0.25 f/cc. This practice should offset any unfairness that may exist because of OSHA's standardization of pre viously variable measurement practices. Finally and vitally, while OSHA maintains that the use of the new method will not result in significantly increased fiber counts, see OSHA Brief at 73 & n.35, AIA has pointed to nothing that suggests otherwise. It is hard to believe that the claim has substance when neither common sense nor the claim's propounder offers anything to support 3uch a belief. The AIA makes two attacks independent of the meas urement problem. It concedes that "asbestos exposures in manufacturing operations utilizing the most effective en gineering and work practice controls will sometimes be below 0.1 f/cc" and "will be below 0.2 f/cc `most of the time.' ''. AIA Reply Brief at 12. But it argues that (1) compliance in some sectors will require reliance on res pirators, and that (2) given uncontrolled random fluc tuations and an enforcement policy that punishes em ployers for isolated counts above the PEL, a standard that is only attainable "most of the time" is not truly feasible. L Net determint use of re more tha: 51 Fed. I that cone time." We be bility lai OSHA GO -- O r\> QO PO ro 647 As to pliance practices use then plement 1001(f) ply witt refracto; work pr; at 1272 processe: ble to at these th' as it be 29 C.FJ yond wh 2. Rc plaint h ide ges ted led. rk74, rly >col 75. i'OT, the 2aa- at will 5 Of .hat jreand new iber ited ieve :nse port eas ts in en3 be the (1) resflucemdard :ruly 17 L Need for respirators in some sectors. OSHA has determined that the 0.2 PEL is feasible without regular use of respirators for manufacturing processes involving more than 90% of the relevant manufacturing workforce. 51 Fed. Reg. at 22,654, Table 11. As noted, AIA concedes that concentrations can be below 0.2 f/cc "most of the time." We believe this to comply with the standards of feasi bility laid down in Steelworkers. There we observed that OSHA must prove a reasonable possibility that the typical firm will be able to develop and install engineering and work practice controls that can meet the PEL in most of its operations. . . . Insufficient proof of technological feasibility for a few isolated operations within an industry, or even OSHA's concession that respirators will be necessary in a few such opera tions, will not undermine this general presumption in favor of feasibility." 647 F.2d at 1272. As to operations that cannot be brought into full com pliance with the PEL through engineering and work practices, OSHA has provided that the employer must use them to attain the lowest achievable levels and sup plement them with respirator use. 29 C.F.R. 1910. 1001(f) (1) (ii), 1926.58(g) (1) (ii). This seems to com ply with our conclusion in Steelworkers that in these refractory operations firms must use engineering and work practice methods "to the extent feasible." 647 F.2d at 1272. Here, in fact, OSHA has identified certain processes as ones in which it is not presumptively possi ble to attain 0.2 f/cc through engineering controls. For these the agency has set a 0.5 f/cc PEL until such time as it believes the lower 0.2 f/cc level can be attained. 29 C.F.R. 1910.1001(f) (1) (iii). This seems to go be yond what Steelworkers required. 2. Random uncontrollable fluctuations. AIA's com plaint here is that firms for which compliance is gener- S T Q 2 8 im ally feasible, and that are indeed normally in compli ance, will be unfairly subject to sanctions when a ran dom and uncontrollable upward fluctuation coincides with an inspector's visit. OSHA conceded in the preamble that an employer whose processes were beset by legitimately uncontrollable random fluctuations might find it infeas ible to meet the PEL 100 Jo of the time.1 It has adopted a policy to account for this situation. An employer using state-of-the-art work practices and engineering controls can, when found in apparent violation, seek to show the inspector that the one-day measurement was unrepresentively high. Upon such a showing, OSHA may reinspect the workplace and measure the employees' exposure or may decide not to issue a citation, unless OSHA has reason to believe that there are circumstances within the employer's con trol to account for the high exposure measurement. 51 Fed. Reg. at 22,653/3. The AIA attacks this proposed enforcement policy as relying on too much human discretion and as defeating 6(b) (5)'s requirement that standards be expressed in terms of "objective criteria." That requirement, how ever, is only conditional: objective criteria are to be used "[w]herever practicable." OSHA has considered the adoption of "objective criteria," but has explicitly found that route to be impracticable on the ground that it would not be able to bring to bear on the outcome the OSHA inspector's "observations about the quality of the employer's sampling and analytic program and the as bestos control, housekeeping, and training programs which OSHA believes are equally important in showing 1 51 Fed. Reg. 22,653/3. OSHA vigorously disputes, how ever, industry's assertions as to the magnitude of the random fluctuations problem, contending that most of the observed fluctuations in asbestos levels are in fact controllable through proper maintenance and employee training and supervision. See OSHA Brief at 63-65. But see AIA Reply Brief at 13 n.5. why fluctu. Moreover, i some emplo of the tim< feasibility 647 F.2d a jection in : take accou; pre-citatior. Industry tion to OS. employer's enforcemen only i lating use of trols. ployer violati (BNA (BNA AIA Reply It is dii petitioners clue. Thei pliance wi grounds o on inadeq that if OE pirators c trollably i exposure to avoid i or provid (In fact tion woui npliranwith that ately feasipted ising itrols 7 the epre- e the ue a that con sent. ry as ating ed in how:o be dered licitly l that ie the if the ie as hrams owing . howmdom served trough vision. 13 n.5. 19 why fluctuations occur." 51 Fed. Reg. at 22,653-54. Moreover, if OSHA is permitted to adopt a standard that some employers assuredly will not be able to meet some of the time, with the employers limited to challenging feasibility at the enforcement stage, see Steelworkers, 647 F.2d at 1273 & n.125, it is difficult to find legal ob jection in an OSHA enforcement policy that attempts to take account of particular feasibility difficulties at the pre-citation stage. Industry also raises a second, slightly baffling, objec tion to OSHA'3 enforcement policy. It asserts that the employer's right to claim individual infeasibility in an enforcement proceeding only protects employers against a citation for vio lating the requirement that the PEL be achieved by use of `feasible' engineering and work practice con trols. Even if successful on this defense, the em ployer can, and usually will, be separately cited for violating the PEL. See, e.g., GAF Corp., 9 O.S.H.C. (BNA) 1451 (1981); Texaco, Inc., 8 O.S.H.C. (BNA) 1758 (1980). AIA Reply Brief at 15 (emphasis in original). It is difficult for us to understand exactly what the petitioners are driving at. Texaco, Inc. may provide a clue. There the employer was exonerated from non-com pliance with required engineering and work practices on grounds of infeasibility, but was then cited for reliance on inadequate respirators. Perhaps AIA's contention is that if OSHA cites employers for failure to provide res pirators on those days where the exposure level uncon trollably fluctuates above the PEL, then all firms whose exposure level may ever fluctuate above the PEL must, to avoid citation, either institute continuous monitoring or provide satisfactory respirators 100% of the time. (In fact we doubt if firms facing a remote risk of cita tion would respond with measures whose cost vastly ex- tnttm s 20 ceeded the expected value2 of the fines and other losses that citation might bring.) But OSHA has not demon strated an intention to enforce its regulations in this manner; if that should prove to be its policy, firms may challenge it at the enforcement stage. See Steelworkers, 647 F.2d at 1270. C. Cost-Effectiveness and "Reasonably Necessary" Standards OSHA standards for toxic substances are governed not only by 6(b) (5) but also by 3(8) of the Act, defining occupational safety and health standards as ones which require "adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment." 29 U.S.C. 652(8) (emphasis added). The "reasonably necessary" language was the basis in Benzene for the Court's requirement of a finding of a "significant risk" as a precondition to OSHA's im position of more drastic standards. 448 U.S. at 642. In Cotton Dust, however, the Court made clear that, in light of the feasibility language in 16(b)(5), "reasonably necessary" in 3(8) did not require cost-benefit analy sis. 452 U.S. at 513. The ALA now invokes this language in support of a requirement of cost-effectiveness, i.e., a requirement that OSHA must, when confronted with two alternative routes to a given level of safety, choose the less expensive one. More specifically, ALA asserts that a 0.2 f/cc PEL is not "reasonably necessary" because a 0.5 f/cc PEL, com bined with various supplemental methods, would produce better results at a lower cost. AIA Reply Brief at 24. Cost-effectiveness certainly appears to have a powerful claim. As between saving lives expensively and thriftily, it would seem curmudgeonly and wasteful in the extreme 21.e., value multiplied by likelihood of occurrence. (ie., not mer. We m retary's ruh of risk that such risk e AIA has no do so. Ther sistencies b> packages, ii as they afft where he n we will tur inally advai patible as s aider the re: D. OSHA' In the re products cc (1) (vi), 1 the ban is the materk protected 1 rather its 51 Fed. Re the observa fornia have products. 1 We sides emerge as ; proposal, cj 659 (1st Cl requirement 653 (198: meet the ' 6(f) of t case on (1 n tiiM it 21 (ie., not "reasonably necessary") to insist on the for mer. We need not, however, resolve the issue. The Sec retary's rule will not reduce the dangers below the level of risk that he reasonably deems "significant" (he finds such risk even at concentrations of 0.1 f/cc), and the AIA has not shown that their alternative package would do so. Therefore, except insofar as there might be incon sistencies between elements of the Secretary's and AIA's packages, it is his duty to keep adding measures so long as they afford benefit and are feasible, up to the point where he no longer finds significant risk. Accordingly, we will turn shortly to AIA's proposed measures--orig inally advanced as partial substitutes but seemingly com patible as supplements--and the Secretary's duty to con sider the reasonableness of adopting them. D. OSHA's Ban on the Spraying of Asbestos Products In the revised regulations, OSHA bans the spraying of products containing asbestos. 29 C.F.R. 1910.1001(f) (1) (vi), 1926.58(g) (2) (iii). Its reason for adopting the ban is not protection of workers actually spraying the materials--it concedes that they may be adequately protected by respirators and protective clothing--but rather its perception of potential danger to bystanders. 51 Fed. Reg. 22,716/2. It supports this perception with the observation that both the EPA and the State of Cali fornia have banned the spraying of asbestos-containing products. IdL We sidestep the AIA's argument that the ban did not emerge as a "logical outgrowth" of the originally noticed proposal, cf. South Terminal Corp. v. EPA, 504 F.2d 646, 659 (1st Cir. 1974), and thereby violated the procedural requirements of notice-and-comment rulemaking, 5 U.S.C. 553 (1982). The support for the ban plainly fails to meet the "substantial evidence" standard imposed by 6(f) of the Act, 29 U.S.C. 655(f). OSHA rests its case on (1) its failure to find anything in the 55,000- *m tim 22 page exonerating such practices and (2) bans imposed by the EPA and the State of California. These supports do not hold up under examination. First, the AIA points to evidence in the record indicating that modern process of encapsulating spray-on asbestos products ensures that asbestos fibers are not released on application.3 OSHA says nothing to refute these claims. Second, both EPA and California specifically exempt encapsulated asbestos products from their spraying pro hibitions, so their bans provide no support at all for OSHA's far more sweeping one. The ban cannot stand. E. Failwre to Issue a Smoking-Control Regulation Uncontested evidence shows that the lung cancer risk posed by asbestos exposure is ten times greater for smok ers than for nonsmokers. Chronic Hazard Advisory Panel on Asbestos, Report to the US. Consumer Product Safety Commission at 11-131 to 11-132 (July 1983), J.A. at 293-94. OSHA itself noted in both its proposal and its final regulations that asbestos exposure "acts synergistically with cigarette smoking to multiply the risk of developing lung cancer." 51 Fed. Reg. at 22,616/1; 49 Fed. Reg. at 14,118/2. In response to this relation ship, OSHA included limited smoking control provisions in its final regulations. It banned smoking in all areas where the levels of airborne asbestos levels exceed the PEL, 29 C.F.R. 5 1910.1001(e) (5), 1926.58(e) (5),. and* * See, e.g., RTI, Asbestos Dust: Technological Feasibility Assessment and Economic Impact Analysis of the Proposed Federal Occupational Standard Part I at 11-15 (September 1978), J.A. at 187 (1978 feasibility study finding that the use of encapsulated asbestos products produced fiber counts below detectable limits); Versar, Inc., Draft Final Report: Exposure Assessment for Asbestos at 253 (January 9, 1984), J.A. at 431 (report for EPA commenting that "[B]ince the banning of water-based products, exposures due to application of coatings are unlikely; petroleum-based compounds do not release fibers on application."). sed on. ng cos on ns. .ipt rofor nd. isk .okory 'uct 53}, 33ai lets isk /i; ionions reas the and ility oaed, aber the unts >ort: '84), the ition not 23 required employers to inform employees of the relation ship between smoking and asbestos exposure. 29 C.F.R. H 1910.1001 (j) (5) (iii)(B); 1926.58(k) (3) (iii) (C). How ever, in response to ALA's suggestion in a posthear ing brief that OSHA adopt additional provisions to re duce smoking-related asbestos risks, such as prohibiting employers from hiring smokers and forcing employers to provide smoking cessation programs, OSHA stated that it had "made a determination, based on policy considera tions," not to expand this aspect of its standards. 51 Fed. Reg. at 22,700/2. Industry challenges OSHA's fail ure to require more vigorous measures to reduce smok ing-related asbestos risks. The proposal raises the issue of what circumstances re quire OSHA to justify its refusal to adopt a proposal for tighter standards. Our starting point is 6(b) (5) of the Act, which provides that OSHA "shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health . . . ." 29 U.S.C. 655(b) (5) (emphasis added). In Public Citizen Health Research Group v. Tyson, 796 F.2d 1479 (D.C. Cir. 1986), this court applied that language to a claim that OSHA should have promulgated a short-term emis sions limitation (STEL). The court held that "[i]f in fact a STEL would further reduce a significant health risk and is feasible to implement, then the OSH Act compels the agency to adopt it (barring alternative ave nues to the same result)." Public Citizen, 796 F.2d at 1505 (emphasis in original). We take the principle to be applicable to any proposal Clearly, however, courts may not apply the principle in a way that would deprive OSHA of the "almost un limited discretion" that statute affords it "to devise means to achieve the congressionally mandated goal." Steelworkers, 647 F.2d at 1230. If the courts were to force the Secretary to produce substantial evidence from the record to support his choice in every case of a differ- tttszois 24 ence, no matter how minor, between the rules he adopts and the proposals of every party to the rulemaking, his discretion would be illusory and the administrative and judicial review processes interminable. The Act simply does not require the agency to respond in detail to entire shopping lists of minute criticisms. Moreover, proposals must be considered in their prac tical context. In some abstract sense a regulation can always be tightened. It will be rare that any given extra twist will push the cost up to the levels necessary for economic infeasibility; even a series of 20 or 50 proposals may not do so in the aggregate. And many imaginable tightenings will, standing alone, be technically feasible. But it does not follow from this that the statute man dates every proposed tightening not shown to be infeas ible in either of these senses, just because it is theoreti cally capable of conferring a health benefit. OSHA's en forcement and employers' compliance duties both depend on ordinary human beings. Multiplication of require ments tax their abilities. (The present rules run some 57 pages in the Federal Register, 51 Fed. Reg. 22,733-90, not including the preamble.) At some point the confusion resulting from an extra burden is likely to outweigh any practical benefit. Accordingly, we hold that a party challenging an OSHA standard must bear the burden of demonstrating that the variations it advocates will be feasible to imple ment and will provide more than a de minimis benefit for worker health. Cf. Steelworkers, 647 F.2d at 1207 (the Act requires that when making legislative-type pol icy decisions, the Secretary "present [his] reasons for rejecting significant contrary evidence and argument") (emphasis added); Alabama Power Co. v. Castle, 636 F.2d 323, 360-61 (1979). Naturally the force of the evi dence and argument that OSHA must offer to defend it3 choice will vary with the force of the proponent's evi dence and argument. Cf. Stevenson v. Linens of the ICZtfZOlS W tu th ti< S' w th e' ?' h* K bi sJ w le Sf r a t] n P n C ( C K IIU 01S 25 Week, 688 F.2d 93, 99 (D.C. Cir. 1982) ("[T]he quan tum and type of evidence required . . . corresponds to the specificity of the claimant's evidence and allega tions." ) (internal quotation omitted). OSHA here recognizes that asbestos exposure poses heightened risks to smokers. It makes no attempt to ar gue that the smoking-related provisions in its regulations will eliminate smoking-related asbestos hazards, or reduce them to insignificant levels. The AIA points to specific evidence in the record showing that smoking cessation programs would be both beneficial in terms of worker health and feasible. John M. Pinney, of the John F. Kennedy School of Government's program on smoking behavior and policy, testified that such programs could achieve "long term success rates in excess of 30 percent." J.A. 1078. He also listed the types of programs that he would recommend (e.g., smoking cessation activities on at least a quarterly basis; incentives to participate; making self-help materials available; and providing employees with periodic medical advice and health examinations to heighten individual motivation!. Id. at 1078-79. Feas ibility seems highly probable; Pinney estimated the av erage cost of a comprehensive program at about $200 per worker. Id. at 1079. This evidence seems to us enough to trigger OSHA's duty under Public Citizen to justify non-adoption of restrictions of the sort proposed. It clearly must defend any decision not to institute such regulations with more than unarticulated "policy considerations." OSHA has not revealed what these might be, but we note two points. First, OSHA regulations have not infrequently mandated special treatment of workers with higher risk propensities. For instance, it has required the removal of workers unable to wear respirators. See, e.g., 29 C.F.R. 1910.1001(g) (3) (iv) (asbestos standard); 29 C.F.R. 1910.1043 (cotton dust standard). Second, OSHA has even regulated matters of personal appear 26 ance. Thus, it has required that workers trim their beards to allow a good face-seal when using respirators. See 29 C.F.R. 1910.134(e) (5) (i). Accordingly, glib references to possible intrusion on matters of personal taste will not support rejection of smoking control measures. III. Union Challenges A. Feasibility of a OJ. f/cc PEL Where a significant health risk exists, the Act requires that the agency adopt "the most stringent standard to protect against material health impairment, bounded only by technological and economic feasibility." Cotton Dust, 452 U.S. at 503. As noted above, the agency acknowl edges that a 0.2 f/cc PEL will not eliminate all signifi cant risk, and has found that significant risk would con tinue to exist even at 0.1 f/cc. 51 Fed. Reg. at 22,648/1. Thus, OSHA's decision to set the PEL at 0.2 f/cc was based solely on its view that industry could not attain a lower level. Id. The unions assert that OSHA's own findings demon strate that a 0.1 f/cc level is achievable in operations affecting over 97 percent of the workers exposed to as bestos in general industry, and that its decision not to adopt a PEL of 0.1 f/cc is therefore unsupportable. Indeed, both union and industry petitioners point out. that OSHA's exposure data for the automotive brake and re pair industry, which employs 541,998 workers, or 93 per cent of all general industry workers exposed to airborne asbestos, 51 Fed. Reg. 22,654, Table 11, shows that aver age exposures in that industry are below 0.1 f/cc. 51 Fed. Reg. at 22,665, Table 22 (estimated current average exposure level is 0.06 f/cc in that industry). (OSHA also cites a study based on 47 observations between 1979 and 1984, finding a mean eight-hour time weighted aver age of 0.03 f/cc. Id. at 22,662/1.) tttttz o is eir >rs. ;lib ste es. res to nly ist, wl:ifion71. vas -n a onons as. to ble. hat re.'erme ver51 age HA 979 ver- 27 Rather than lower the PEL for the automotive repair sector, however, OSHA has merely recommended that employers "who wish to reduce their employees' asbestos exposure during repair operations to levels below the new standard's action level (0.1 f/cc)" employ certain con trol measures that are indisputably available (such as solvent mist or high efficiency particulate air (HEPA) vacuum systems). Appendix F, 29 C.F.R. 1910.1001. OSHA rested its decision not to mandate a 0.1 f/cc PEL on its finding that "most of the `best' plant expo sure data indicate that average exposures at many sta tions . . . are in excess of 0.1 f/cc and cannot be reduced using current controls and practices,'' 51 Fed. Reg. at 22,654/3. But the factual findings implicit in Table 11 obviously make this statement inapplicable to the auto motive brake and clutch repair sector. In its brief here, OSHA appears to acknowledge the feasibility of 0.1 f/cc for that sector, but turns the fact around, arguing that there is no need to give weight, in a feasibility analysis, to "an operation that may be practically unaffected by [the Secretary's] feasibility resolution." OSHA Brief at 79. But, quite apart from the argument being a mere post hoc rationalization of the agency's counsel, see Citi zens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419 (1971), the argument turns feasibility analysis in side out: sectors where compliance with a given PEL is easy become arguments, in effect, for a less stringent PEL. The consequence is to deny OSHA protection to those in the automotive repair sector who work in shops with higher-than-average exposure levels. We see no basis for this in the Act. At oral argument, OSHA counsel defended the Secre tary's decision not to set a lower PEL for this sector by invoking the Secretary's discretion to decide what indus tries should be grouped together for regulatory purposes. Obviously, great numbers of minuscule industry subcate gories may complicate enforcement, and we have else- ttS ItM U scm m s 28 where acknowledged OSHA's discretion in the matter. See Hodgson, 499 F.2d at 481. But where the subcate gory consists of 93 percent of affected workers, number ing over 500,000, this justification seems to completely disappear. Accordingly, we must remand the case for the Secretary to address the issue of disaggregating the gen eral industry standard to afford workers the benefits of more stringent standards in areas where they are feasi ble.4 OSHA's Tables 22 and 23 also indicate many smaller subcategories with average current concentrations well below 0.2 f/cc, several of them well below even 0.1 f/cc. 51 Fed. Reg. at 22,665. Moreover, the agency acknowl edges that in many operations the 0.1 f/cc level "is already met on average by the best plants." OSHA Brief at 79. It then invokes the problem of variability--heav ily stressed by industry, as we have seen--as justifying the choice of 0.2 f/cc. We think that in addressing this problem OSHA must provide a little more enlightenment. If its sole basis for selecting a uniform PEL of 0.2 f/cc is the administrative difficulty of selectively lower PELs, it should spell out the analysis. (We can imagine that the analysis would ad dress such factors as the size of such sectors and the difficulties of drawing clear borders between them and ones where only 0.2 is attainable. Of course the exper tise is OSHA's, and it may well have other concerns.) To the extent that the administrative problems of ex cessive disaggregation are not the full answer, i.e., to the extent that it relies on such factors as excessive random fluctuations in exposure levels, it should make specific findings. As to such other factors, we note that: (1) OSHA's own average figures presumably comprise the 4 As the Secretary set the action level at one half the PEL, on remand we instruct the Secretary to consider an appro priate modification of the action levels where, in response to this opinion, he changes the PELs. 29 less advanced firms as well a3 the more advanced- Thus the figures in Tables 22 and 23 seem to suggest the at tainability of the average levels reflected there. (2) If r OSHA's references to "the best plants" reflect a notion that their experience should be discounted, that is in plain contravention of the prevailing legal standard of i feasibility. Steelworkers, 647 F.2d at 1264 ("OSHA can impose a standard which only the most technologically advanced plants in an industry have been able to achieve --even if only in some of their operations some of the r time."}.4 .1 B. Requirement of a STEL KZII201S All petitioners challenge the Secretary's omission of a STEL, and OSHA has decided to reconsider its decision f on this issue in light of this court's decision in Public Citizen. OSHA reported to the court its belief that it could complete its reconsideration of this issue, on the existing record, by November 1987. The court hereby * orders that this reconsideration be completed within 60 days of the issuance of the mandate in this case. C. Miscellaneous BCTD Challenges BCTD raises a host of objections to specific provisions of the construction standard. We review by the standard a i * AIA appears to argue that Steelworkers'& concept of feasi bility--that EPA may infer feasibility from the "reasonable ) possibility" that a typical firm will be able to comply--is applicable only where the agency is engaged in "technology- e forcing," i.e,, where the technology of compliance is not cur rently available. AIA Brief at 13-14. This seems manifestly .1 backwards. The inference is surely more supportable where c the technology of compliance is available. > No party here argues that there is a difference between the e standard of feasibility for what the Secretary must prescribe (at issue here) as opposed to the standard for what he may prescribe (at issue in Steelworkers). Accordingly, we do not address the issue. We note that as a practical matter the e deference we owe the agency is likely to create a practical gap between the minimum and maximum levels of stringency. ta iK iu 30 articulated in part II.E above (addressing AIA's pro posals of additional smoking controls). 1. Action level trigger issues. As noted above, the regulations are structured in such a way that some em ployer duties (e.g., exposure monitoring, employee train ing and information requirements) are triggered by ex posures at or above the action level, while other duties (e.g., establishment of regulated areas, and provision of protective clothing and hygiene facilities) are not trig gered until exposure levels reach the PEL. BCTD argues that it is feasible to trigger many of the latter duties at the action level rather than at the PEL, and that the Secretary therefore erred in not so providing. BCTD Brief at 41-42. In the preamble, the agency explains that action levels "provide an appropriate cut-off point for many of the re quired compliance activities." 51 Fed. Reg. at 22,680/1. It notes that this setting of compliance priorities "per mits employers to concentrate their resources on those employees and workplace conditions with the potential for high asbestos exposures." Id. at 22,707/2. BCTD in effect is arguing that OSHA's rationale is unlawful be cause the agency has not justified its decision not to mandate greater duties at the action level on either in feasibility or lack-of-benefit grounds. We are skeptical of the agency's asserted justification for similar reasons. However, as BCTD has failed to point to any evidence that triggering the regulated area requirements and other duties at the action level, rather than at the PEL, would result in a greater than de minimis incremental benefit, we do not find that the Secretary has abused his discretion. 2. Compliance Methods. BCTD argues that, like the general industry standard, the construction industry standard should allow employers to use only local ex haust ventilation or wet methods, and not any of the four 31 S T m im other compliance methods approved by OSHA at 29 C.F.R. 1926.58(g) (1) (i), to reduce exposure levels to the PEL. BCTD Brief at 42-44. BCTD points to evi e dence as to the effectiveness of its favored methods, but not as to any marked superiority of those methods over others OSHA chose to permit Accordingly, we can find no evidence that the proposed restriction would have 3 more than de minimis health benefits. There is obviously, f moreover, some practical advantage in permitting em ployer choice and experimentation. 3 .t 3. Respirator use and classification. BCTD contends that when exposure levels exceed the PEL and an em (S ployer is thereby forced to provide supplemental res pirator protection, the regulations should mandate the use of the most protective respirator feasible rather than 3 allowing the use of any respirator that can protect em ployees to the degree that they would be protected by ex l. posure at 0.2 f/cc. BCTD Brief at 46-49. This would be likely almost always to require use of a "supplied-air" e respirator for operations where the 0.2 PEL could not be tl attained. n OSHA noted in the rulemaking that the supplied-air respirator had hazards of its own--specifically tripping o over the hose supplying the air. 51 Fed. Reg. at 22,- l- 719/2. We regard this sort of judgment as within il 3. :e d OSHA's discretion in the absence of evidence supporting the view that the incremental asbestos safety gains plainly exceed the incremental non-asbestos hazards. -h One aspect of OSHA's approach, however, fails to meet il the basic standard of reasoned decision-making. The is agency sets respirator requirements in terms of the as bestos level attained by the work practice and engineer- ing requirments, so that the combination of measures will le limit each worker's exposure to the PEL. But OSHA's y statutory mandate is not framed as requiring it to en t- sure that all employees are protected at the level of its ir chosen PEL. It requires it to ensure that employers use IttliU U 32 all feasible methods to eliminate significant risk. Where the PEL is conceded to leave a significant health risk, as is the case here, we wonder why OSHA has concluded that protection at the PEL level should be regarded as enough. Our hunch is that OSHA's policy is based on an implicit determination that universal inforcement of a 0.2 f/cc safety level is, for administrative efficiency reasons, the optimal enforcement strategy. But, as we noted above j in part III.A, OSHA must explicitly define and justify I such policies. As it has not done so, we include the resi pirator policy among the issues to be reconsidered on remand. BCTD also points to evidence that the regulations credit various respirators with more effectiveness than the record supports. BCTD Brief at 49-50. OSHA does not dispute BCTD's argument on the merits. It points out, however, that it is currently undertaking a compre hensive review of its general respirator standard, see 51 Fed. Reg. 38,593 (Oct. 27, 1986), and notes that upon the completion of this review it will make conforming changes in the asbestos standard where appropriate. OSHA Brief at 85. As the agency is already reevaluat ing the standard at issue, we can do no more than order that the agency complete such reconsideration and inte grate its results with these regulations without undue delay. 5. "Initial monitoring" exemptions. The regulations provide two exceptions to their general requirement that all covered employers conduct initial asbestos exposure level monitoring. First, an employer can avoid initial monitoring if it can show "by means of objective data . . . that the product or material containing asbestos, . . . cannot release airborne fibers in concen trations exceeding the action level" 29 C.F.R. 1926.58 (f)(2)(ii). BCTD objects that OSHA has not spelled j out clearly enough what qualifies as "objective data." BCTD Brief at 56-58. We think such drafting choices 33 are plainly within OSHA's discretion in the absence of a showing that a different approach would achieve more than de minimis health benefits. Second, the regulations allow an employer to use prior monitoring data to meet the regulation's initial monitor ing requirements where the monitoring occurred under conditions "closely resembling" those currently prevail ing. 29 C.F.R. 1926.58(f) (2) (iii). BCTD again ar gues that the rule should be drafted with greater speci ficity. BCTD Brief at 55-56. Again, on this record the choice is up to OSHA. 6. Periodic monitoring, (a) The regulations define a "regulated area" as "an area established by the employer to demarcate areas where airborne [asbestos concentra tions] exceed or can reasonably be expected to exceed the [PEL]," 29 C.F.R. i 1926.58(b), and require employers to conduct daily "breathing zone" monitoring "that is representative of the exposure of each employee who i3 assigned to work within a regulated area." Id. 1926. 58(f) (3). BCTD argues that while these breathing zone samples accurately determine employee exposure within the regulated areas, periodic environmental monitoring at the boundaries of regulated areas is necessary to de fine the areas' boundaries and thus to protect employees working outside of them. BCTD Brief at 59-60. OSHA explained in the preamble its belief that the concerns expressed by BCTD are adequately addressed by the regulations' general monitoring provisions, 1926. 58(f) (1) (i) & (ii), which require breathing zone sam ples that are representative of the exposure of each em ployee. As employees outside of the regulated areas are covered by these general monitoring requirements, OSHA asserts that environmental monitoring is unnecessary. 51 Fed. Reg. at 22,714/2. BCTD points to nothing in the record undermining that judgment. m um s 34 (b) The regulations allow employers to dispense with periodic monitoring within a regulated area if all em ployees working within that area are equipped with supplied-air respirators. 29 C.F.R. 1926.58(f) (3). This monitoring exemption is explained by OSHA's belief that "proper use of these respirators will assure that employ ees are not inhaling asbestos fibers above the PEL, re gardless of the levels of airborne asbestos outside their breathing zone." OSHA Brief at 89. BCTD argues that the possibility that an employee may have a defective respirator ought to preclude the Secretary from approv ing this exception. Given the fact that the standard mandates respirator maintenance and fit-testing, 29 C.F.R. 1926.58(h) (3) & (4), the mere imperfection of respirators does not support an inference that elimi nating this monitoring exception would result in more than a de minimis health gain. (c) The regulations also allow a construction indus try employer to terminate periodic monitoring if the re sults of monitoring demonstrate that exposures are below the action level 29 C.F.R. 1926.58(f) (4). Unlike the equivalent provision for general industry, however, the construction industry standard includes no requirement for resumption of monitoring when a change in work place conditions may result in exposures above the action level. Compare 29 C.F.R. 1910.1001(d) (5). OSHA re plies only that this sort of resumption requirement is implicit in the current standard. OSHA Brief at 90. In view of the risk that an employer might infer the oppo site from the contrast in language, we believe OSHA should clarify the regulation to conform to the intent expressed in its brief. 7. Medical program requirements, (a) The regula tions require medical surveillance for employees subject to certain minimum exposure levels. In general indus try, the trigger is any work at or above the action level. 29 C.F.R. 1910.1001(1) (1) (i). In the construction in ST028l2%t 35 dustry, where worker turnover is often extremely high and much of the workforce is transient, see 51 Fed- Reg. at 22,727/3-28/1, the requirement applies to any worker who has been required to wear a negative pressure res pirator or who has been exposed at or above the action level for 30 or more days per year. 29 C.F.R. 1926.58 (m)(l)(i). (The Secretary construes the standard as requiring aggregation of days with different employers for purposes of meeting the 30-day trigger. See OSHA Brief at 91 n.40.) BCTD would expand the surveillance to all construction workers who are exposed to any air borne asbestos, regardless of levels or duration of ex posure, thus covering even an employee exposed at the action level for one day. BCTD Brief at 60-62. Neither the record nor common sense suggests that the proposed expansion of medical surveillance would generate mate rial gains in worker health. (b) Because of the high turnover rate and the degree of variation between construction workplaces, OSHA con cluded that "annual [chest] x-rays may not always be necessary," 51 Fed. Reg. 22,729/2, and determined to leave the decision of whether a physician should adminis ter a chest x-ray as part of the medical examination up to the discretion of the individual physician. BCTD dis agrees and argues that OSHA should require mandatory annual chest x-days. BCTD Brief at 62. It cites in sup port simply the fact that most witnesses recommend this approach. Conclusory statements of this sort are not enough. (c) BCTD also asserts that the medical question naire that is required to be administered by a physician as part of the medical surveillance program, 29 C.F.R. s 1926.58, Appendix D, should include more questions that delve specifically into the nature and amount of the workers' asbestos exposure. BCTD Brief at 63. The med ical questionnaire adopted was in fact the only medical questionnaire proposed by anyone. See 51 Fed. Reg. at smtitts 36 22,729/3. BCTD's opportunity to critique the question naire has passed. (d) Finally, BCTD argues that although an examin ing physician ought to be directed to advise the employer about limitations in an employee's job duties or use of respirators, the regulations should not permit the physi cian to divulge specific medical findings or diagnoses. BCTD Brief at 63-64. We made clear in Hodgson that the interest in guiding employers in their task of fitting specific work with specific workers justified medical sur veillance methods that revealed "the results" of physical examinations to employers. 499 F.2d at 485. We believe this provision well within Hodgson's view of OSHA's au thority to weigh the concerns of privacy against those of health. Although OSHA must be sensitive to the concern for confidentiality, as Hodgson indicated, we believe that OSHA's choice here lay well within that decision's view of the agency's authority to balance health against pri vacy. 8. Warning and labeling requirements, (a) The regu lation exempts from otherwise applicable labeling require| ments those products in which asbestos is bonded or modified in such a way that no "reasonably foreseeable" use or handling will lead to release of airborne concen trations above the action level. 29 C.F.R. 1926.58 (k) (2)(vi)(A). BCTD claims the exemption is not sup ported by substantial evidence, but adduces neither evi dence nor argument in support of a more stringent rule. | (b) The standard also exempts products containing less than 0.1 fo asbestos from the labeling requirements. 29 C.F.R. 1926.58(k) (2) (vi) (B). BCTD argues that I this exception is unjustified. BCTD Brief at 66. OSHA | found no record evidence that narrowing the exemption would generate health benefits, 51 Fed. Reg. at 22,725/1, j and BCTD points to none. j (c) OSHA's labelling rule requires only warnings in ' English. 51 Fed. Reg. at 22,724/3. BCTD contends that i 37 this is insufficiently protective of non-English-speaking employees and urges that the necessary signs and labels should be "bilingual in the languages that predominate in the workforce area." BCTD Brief at 64. OSHA itself plainly regards warnings and labels as a necessary sup plement to its other controls. It seems obvious that a warning sign or label in English will only rarely warn or educate non-English-speaking workers. The number of such workers in the construction industry is signifi cant. (E.gthere were 64,000 Hispanic workers in the construction industry in the second quarter of 1984, ac cording to the Bureau of Labor Statistics. J.A. at 1422.) As we noted earlier, 6(b) (5) directs the agency to pro vide for all workers. OSHA offers two rationales for refusing to require bilingual warnings or universal symbols. First, it main tains that such a requirement would impose "an unduly stringent requirement on those construction employers whose work force is comprised solely of English-speaking persons." 51 Fed. Reg. 22,724/3. OSHA's refusal to im pose a pointless burden on such employers is entirely legitimate. But the agency is surely capable of designing a rule covering only employers with a significant number of non-English speakers. Second, the agency points out that "information overload" will reduce a warning's ef fectiveness. OSHA Brief at 94, citing 48 Fed. Reg. 53,301 (1983). This is clearly true. Cf. part II.E. But neither common sense nor anything in the record sug gests that a bilingual warning would confuse English speakers; the gain for others seems obvious. We recognize that BCTD's claim, suggesting use of the "languages that predominate in the workplace," has a potential breadth that could readily lead to requirements that would be infeasible as a practical matter or would yield only de minimis benefits at the margin. But OSHA is free to prevent such excesses by limiting any require- i 38 ment to instances where the number of employees affected is substantial. Accordingly, we think the issue deserves more consideration on remand. 9. Reporting requirements, (a) BCTD maintains that OSHA should require all construction industry employers to file reports with it prior to engaging in any asbestos projects. BCTD Brief at 67-68. It argues that the in formation generated by such reports would enable the agency to more efficiently enforce the regulations, BCTD Reply Brief at 32-33, and cites evidence in the record that requiring such reports would lead to significant im provements in employer compliance and consequential decreases in worker risk. Hattis & DiMauro, "Health Benefits and Costs of Supplementary Measures to Im prove Compliance With Workplace Exposure Limits for Asbestos in the Construction Industry," J.A. at 1093, 1098-1100. It also points out that in OSHA's acrylo nitrile and inorganic arsenic exposure standards, the agency does require employers to report the address of their workplace, the number of employees working within the regulated area, and a description of each operation creating employee exposures. 29 C.F.R. 1910.1045(d), 1910.1018(d). In response, OSHA argues that "the manner and method of selecting worksites for inspection falls exclu sively within [the agency's] discretion," and that the agency must to some degree rely upon self-policing by employers. OSHA Brief at 66-68. We do not see how these general principles are relevant to the issue at hand. Agency discretion in selecting targets for inspection is quite different from agency evaluation of a proposed re quirement that would arguably generate better informa tion for making these selections. And if the reports sug gested by the petitioners would significantly improve em ployer compliance, the fact that the agency must largely rely on self-policing would not justify their rejection. T I -3- 3 i As th evidei replie propo (b) all e relate ing o of ar prosp such preve OS amble serva dutiee 22,67 era " Brief futur inter; emplc their that gress coura duce ployir way. adopt "requ more reasoi health 662 We witho M il 820i t 39 As the record contains uncontradicted (and unanalyzed) evidence of non-cfe minimis benefits, and as OSHA has replied only with reasoning of marginal relevance, the proposal must be considered on remand. (b) BCTD further argues that OSHA should require all employers contracting or subcontracting asbestosrelated work to establish, maintain, and transfer to build ing owners written records of the presence and locations of any asbestos or asbestos products in any actual or prospective workplace. BCTD Brief at 68. It argues that such records would greatly facilitate identification and prevention of asbestos hazards. OSHA did not even mention this proposal in its pre amble, although it offered some purely descriptive ob servations to the effect that the regulations imposed no duties on building owners a3 such. 51 Fed. Reg. at 22,678/1. In its brief here it argues that building own ers "are outside the domain of the OSH Act." OSHA Brief at 96. This would not seem to be true insofar as future building owners are employers. Perhaps OSHA interprets the Act as conferring upon it jurisdiction over employers only as they directly control the workplaces of their employees. Some provisions of the Act may support that view. The statement of purposes, referring to Con gress's effort to assure safe working conditions "by en couraging employers and employees in their efforts to re duce the number of . . . hazards at their places of em ployment . . .," 29 U.S.C. 651(b)(1), may point that way. The definition of the standards that OSHA is to adopt seems somewhat broader: the standards are to "require [] conditions, or the adoption or use of one or more practices, means, methods, operations, or processes reasonably necessary or appropriate to provide safe or healthful employments and places of employment." Id. 652(8). We think it inappropriate for us to rule on the point without OSHA having considered it explicitly. Cf. Phil- 40 lips Petroleum Co. v. FERC, 792 F.2d 1165, 1170, 1172 (D.C. Cir. 1986) (where agency erroneously believed Supreme Court decision required particular interpreta tion of ambiguous statute, court remands to agency for it to reach its own judgment on the issue). Accordingly, we remand to OSHA for that purpose. 10. Scope of "competent person" requirement. "Com petent person" is a term of art, defined as "one who is capable of identifying existing asbestos, . . . hazards in the workplace, and who has the authority to take prompt corrective measures to eliminate them . . . 29 C.F.R. 1926.58(b). The regulations require employers to designate a competent person to supervise removal, dem olition and renovation operations for which the employer is required to establish a negative-pressure enclosure. Id. at 1926.58(e) (6) (ii). Along with their other duties, competent persons are directed to: (1) set up the negativepressure enclosure and ensure its integrity, (2) super vise all employee exposure monitoring required by the standard, (3) ensure that employees are trained in the use of engineering controls, work practices, and personal protective equipment, and (4) ensure that engineering controls are functioning properly. Id. at 1926.58(e) (6) (A), (B), (D), (F) and (H). (a) BCTD argues that "employers engaged in any kind of asbestos-related construction work" should be re quired to designate competent persons to oversee asbestosrelated safety measures. BCTD Brief at 54 (emphasis in original). Thus, it would expand the requirement be yond areas where the regulations require a negativepressure enclosure. BCTD points to testimony in the record supporting an expansion of the competent person requirement. For instance, Dr. Morton Corn, a professor in the Depart ment of Enivronmental Health Science at Johns Hopkins University's School of Hygiene and Public Health, tes 41 tified that OSHA should require the presence of an in dustrial hygienist with knowledge of the operation and authority to shut down the work site. J.A. at 1707-08. John A. Pritchard testified that the regulations should require the presence of an expert in respiratory protec tion on site to ensure effective respirator fit and use. J.A. at 1718-19. While we recognize that the testimony relied on by the petitioners is somewhat conclusory, their recommendations accord with common sense. OSHA has pointed to nothing in the record that contradicts this testimony, but merely points out its belief that " [t]he operations covered by the `competent person' requirement . . . comprise the activities where exposure levels are the highest . . . ," and argues that "[implementing this requirement for the most dangerous operations is neither arbitrary nor irrational." OSHA Brief at 87. While we may take this as asserting the sound point that OSHA must draw the line somewhere, it hardly helps explain why it drew the line where it did. We recognize that it will rarely be possible to offer a compelling reason for the exact placement of a line of this sort, and we do not ask for such a reason. But we think something less con clusory is due. We note that the proposal aims directly at enhancing the human capacity for compliance, for the difference between a "competent person" and others is essentially one of training. 29 C.F.R. 1926.58(e) (6) (iii). Thus, the proposal is not as vulnerable as many others are to the observation in II.E that at some point, given the frality of human beings, the multiplication of compliance duties becomes counterproductive. The Secre tary must therefore either expand the applicability of the competent person requirement or provide a more persuasive explanation of his refusal to do so. *We observe that neither the record nor common sense provides clear support for the "small-scale short term opera tions" exception from the competent person requirement for removal, demolition and renovation operations, 29 C.F.R. V O M ItM 42 (b) BCTD also contends that the standard should ex plicitly provide that the "competent person" has the authority to suspend work and remove affected employees to a safe area when hazardous conditions exist. BCTD Brief at 54. OSHA notes that the competent person is defined as one with "the authority to take prompt cor rective measures to eliminate" workplace hazards. See 29 C.F.R. 1 1926.58(b). BCTD has pointed to nothing suggesting that its proposed change in the definition would have more than a de minimis effect, and the choice of language is therefore within the Secretary's discretion. 11. Exemption from removal, demolition and renovar tion requirements. The regulations exempt "small-scale, short-duration operations" from the competent person and negative-pressure enclosure requirements applicable to employers engaged in removal, demolition and renova tion operations. 29 C.F.R. 1926.58(e) (6) (iv). The reg ulations do not define "small-scale, short-duration opera tions" explicitly, but rather attempt to do so by example, noting that the term is meant to include operations "such as pipe repair, valve replacement, installing electrical conduits, installing or removing drywall, roofing, and other general building maintenance or renovation." Id. BCTD asserts that OSHA has not drawn the parameters of the exemption with enough specificity. Indeed, the ex ception as now worded seems to erase the rule. OSHA responds that explanatory language in the preamble ade quately narrows the exception. There OSHA stated that the exemption was meant to apply only to "those work operations where it is impractical to construct a negativepressure enclosure because of the configuration of the work environment." 51 Fed. Reg. at 22,711/2. In so far as the exemption applies to the negative-pressure en closure requirement, this language seems marginally clear 1926.58(e) (6) (iv), as OSHA currently appears to define that exception. See our general discussion of this exception in part III.C.11 infra. 43 enough and makes apparent sense, but on remand the Secretary should consider including this clarification in the regulations themselves. (In so far as the exemption applies to the competent person requirement, we can dis cern no logic whatever in OSHA's choice of language, with or without the preamble's gloss. See note 6 supra.) IV. Conclusion Accordingly, we remand the case to the Secretary for further proceedings consistent with this opinion. So ordered. 1 Weigel, Senior District Judge, dissenting in part: I respectfully dissent only from that portion of the opinion which fails to call for medical surveillance for employees in the construction industry to the same extent required for those in general industry. The record makes it clear that even if exposure to asbestos for 30 days or less in a single year is not dangerous to health, there is such danger from exposure to large quantities over an ex tended period of years. Since nothing in the record suggests that the relevant standard for construction workers should be different from those in general in dustry, I would require OSHA to reconsider its decision on thiB matter.