Document 9LyXERwm78dnaRp3vYnXoNDoL

FROM: SENIOR INDUSTRIAL HYGIENIST, HEALTH & SAFETY, MFG. & TECH. TO: SEE ATTACHED DISTRIBUTION LIST SUBJECT: EMERGENCY TEMPORARY STANDARD FOR ASBESTOS The attached summarizes the decision by the Fifth Circuit Court of Appeals to strike down the OSHA Emergency Temporary Standard (ETS) for asbestos. We will continue to keep you apprised of further developments. JDRrbjd Attachment cc: B. F. Aurelius K. C. Crawford C. F. Phillips J. L. Rivard J.X Guimr R.ET-EfeRidK ~S*TPlilIie J^V. MWIW5 RgEbfentford J. H^^mTnT LAM 001391 DPMC-17088 DISTRIBUTION LIST ANACORTES REFINERY MANAGER, SAFETY DEER PARK MANUFACTURING COMPLEX SUPERINTENDENT,HEALTH, SAFETY AND ENVIRONMENTAL MANAGER, SAFETY ^ SENIOR INDUSTRIAL HYGIENIST EL PASO PLANT SAFETY REPRESENTATIVE GEISMAR PLANT MANAGER, HEALTH, SAFETY AND ENVIRONMENT INDUSTRIAL HYGIENIST MARIETTA PLANT : MANAGER, HEALTH, SAFETY AND ENVIRONMENT SENIOR ENGINEER, HEALTH, SAFETY AND ENVIRONMENT MARTINEZ MANUFACTURING COMPLEX manAgEr'T'HeAlTh And safety SUPERVISOR, HEALTH AND SAFETY INDUSTRIAL HYGIENIST II MOBILE PLANT MANAGER, SAFETY, HEALTH AND ENVIRONMENT SENIOR INDUSTRIAL HYGIENIST NORCO MANUFACTURING COMPLEX MANAGER, HEALTH, SAFETY AND MEDICAL INDUSTRIAL HYGIENIST II INDUSTRIAL HYGIENIST I ODESSA REFINERY SAFETY REPRESENTATIVE TAFT PLANT SAFETY AND TRAINING REPRESENTATIVE WILMINGTON MANUFACTURING COMPLEX MANAGER, SAFETY AND INDUSTRIAL HYGIENE SENIOR INDUSTRIAL HYGIENIST WOODBURY PLANT MANAGER, HEALTH, SAFETY AND ENVIRONMENT SENIOR ENGINEER, HEALTH, SAFETY AND ENVIRONMENT WOOD RIVER MANUFACTURING COMPLEX MANAGER, SAFETY AND INDUSTRIAL HYGIENE SENIOR INDUSTRIAL HYGIENIST Shell Oil Company Interoffice Memorandum MARCH 14, 1984 ^^ iS FROM: B. F. AURELIUS, ATTORNEY ENVIRONMENT AND LABOR DEPARTMENT HEAD OFFICE LEGAL ' TO: H. L. KUSNETZ, MANAGER 'SAFETY & INDUSTRIAL HYGIENE HS&E ' ~J. L. RIVARD, MANAGER REGULATIONS AND SAFETY SERVICES HS&E J. S. SZYMANOWSKI, MANAGER HEALTH & SAFETY MANUFACTURING D. P. ATWOOD, MANAGER SERVICES - HS&E SHELL DEVELOPMENT F. A. ELY, MANAGER PRODUCTS DISTRIBUTION HEALTH AND SAFETY J. 0. PICKELL, MANAGER SAFETY ENVIRONMENTAL CONSERVATION E&P SUBJECT: ASBESTOS INFORMATION ASSOCIATION"V. OSHA (EMERGENCY TEMPORARY STANDARD FOR ASBESTOS) LAM 001393 DPMC-17090 ASBESTOS INFORMATION ASSOCIATION V. OSHA (EMERGENCY TEMPORARY STANDARD FOR ASBESTOS) 2 PI8AQ7403 N\ 00139* DPMC-17091 BNA's Daily Reporter System DAILY LABOR REPORT (:;c.4^ d-1 FULL TEXT SECTION I DECISION OF FIFTH CIRCUIT IN ASBESTOS INFORMATION ASSOCIATION v. OSHA (TEXT) IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Nos. 83-4687, 83-4688,' 83-4689 ' No.83-4711 ASBESTOS INFORMATION ASSOCIATION/ _> NORTH AMERICA, et al., . . \i Petitioners, ... versus ., OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, etal., - - - ^ . Respondents. . . '. ,, EAST TEXAS SERVICE CORPORATION, et al., Fetitioners, versus ` ...- . . ... -OCCUPATIONAL SAFETY AND HEALTH :-ADMINISTRATION, etal., . j. Respondents. ........ ... .. Petitions for Review of an Order of the . Occupational Safety and Health Administration' . ' ( ' MARCH 7 ' ,: 1984) : Before CLARK, Chief Judge, RUBIN and JOLLY, Circuit : Judges. : E. GRADY JOLLY, Circuit Judge: . The Asbestos Information Association (AIA), an or ganization of American and Canadian manufacturers of .asbestos products, asks this court to determine whether the Occupational Safety and Health Administration (OSHA) ; properly by-passed normal notice-and-comment rule- . making procedures in favor of creating an Emergency Temporary Standard (ETS) lowering workers' permissi ble exposure level (PEL) to ambient asbestos fibers from - 2.0 fibers per cubic centimeter (f/cc) to 0.5 f/cc. We hold that OSHA did not invoke its ETS powers properly. I I. . ... ' Congress passed the Occupational Safety and Health Act (the Act) in 1970, codified at 29 U.S.C. 11651-678, to assure safe and healthful working conditions for the na' tion's work force and to preserve the nation's human re sources. 29 U.S.C. 651 (1976). Toward that goal, the Act allows the Secretary of Labor (the Secretary), after public notice and opportunity for comment by interested persons, to promulgate rules and standards for occupa tional safety and health. Id. at 655(b). The Act also al lows the Secretary to by-pass these normal procedures in favor of promulgating an ETS to take effect immediately upon publication in the Federal Register if he determines that "employees are exposed to grave danger from expo sure to substances or agents determined to be toxic or physically harmful or from new hazards," and also de termines "chat such emergency standard is necessary to protect employees from such danger." 29 U.S.C. 655(c)(l). The ETS statute further provides that the ETS as published shall serve as a proposed rule, and chac the Secretary shall act on the rule no later than six months after publication.1 ' The full text of the scatute says: Any standard. Including an ETS, properly imposed under the Act has the force of law because the Act im poses upon every employer 1 the duty to "comply with oc cupational safety and health standards promulgated under this chapter" or face civil and criminal penalties. 29 U.S.C. 1654; Florida Peach Growers Association v. De partment of Labor, 489 F.2d 120, 123 (5th Cir. 1974). On November 4, 1983, acting pursuant to Its ETS enabling statute, OSHA published in the Federal Register an ETS lowering the time-weighted average PEL for am bient asbestos fibers from 2.0 f/cc that are 5 microns or more in length * to 0.5 f/cc.'48 Fed. Reg. 51,086-51,140 (1983). See also 29 C.F.R. 1910.1001 (1983) (text of current rule). In die November 4 publication, the Secre tary also included a statement of reasons to support his action as be is required by law to'do. 29U.S.C. 1655(c). See also Dry Color Manufacturers' Association r. De partment of Labor, 486 F.2d 98 (3d Cir. 1973) (applying {655(c) to ETS promulgadons). The ETS allows "any practical combination" of en gineering controls, work practices and personal protec tive equipment to meet the lower PEL; The ETS also . requires training to begin within thirty days for all em ployees whose exposure is "reasonably expected" to be at or above the PEL. Training must cover respirator fit ting and use, asbestos handling, medical information, and the relationship between smoking, lung cancer and asbestos-related diseases. 48 Fed. Reg. 51,139-51,140 (1983) (text of ETS). Finally, the Agency announced it would increase enforcement efforts in workplaces where asbestos is handled. Id. at 51.087. '.. I . " (1) The Secretary shall provide, without regard to die requirements of chapter 5 of Title 5, for an emer gency temporary standard to take immediate effect upon publication in the Federal Register if he deter mines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger. (2) Such standard shall be effective until superseded by a standard promulgated in accordance with the pro cedures prescribed in paragraph (3) of this subsection. (3) Upon publication of such standard in the Federal Register the Secretary shall commence a proceeding in accordance with subsection (b) of this section, and the standard as published shall also serve as a pro posed rule for the proceeding. The Secretary shall promulgate a standard under this paragraph no later than six months after publication of the emergency standard as provided in paragraph (2) of this subsection. 29 U.S.C. 1655(c). 1 The Act defines an employer as "a person engaged in a business affecting commerce who has employees, but does not include the United States or any State or political subdivision of a Stats." 29 U.S.C. 652(5). ' As much as 98% of ambient asbestos fibers may be less than 5 microns long, and, given the sophistication of measuring devices, too small to regulate. 48 Fed. Reg. at 51,086, 51,092 (1983). o. ---c ' .~c \MTy>-v LAM 001395 1 Va IS* DPMC-17092 U.ufVi, LAM 001396 (DLR) o i n o j The AIA Immediately petitioned OS HA to stay the effective date of the ETS pending judicial review of whether OSHA's action is a proper application of its ETS statute. The Agency refused the stay. Subsequently, on November 17, 1983, the AIApeti- *' tioned this court for an emergency stay pending judicial - review of OSHA's action, arguing that its members would suffer irreparable harm if the stay were not granted, and arguing Its likely ultimate success on the merits. After reviewing the arguments of both the AIA and OSHA, ana- , lyzing them according to well-established legal criteria* for determining when a court should grant equitable ln- .. terim relief, and balancing the equities involved,' this court granted the stay but expedited full hearing on the' merits. We how hold that OSHA did not properly act pur- . suant to its ETS enabling statute and that the'standard in question, therefore, should not become effective absent notice-and-comment rulemaking. ,. . -r sn. " ,. . -r': - OSHA has regulated asbestos since' 1971. Its first ' asbestos PEL was 12.0 f/cc.*In 1972 OSHA reduced this ~ standard to 5 f/cc,` and in 1976 OSHA again reduced the . standard to the currently effective 2 f/cc..In 1975 OSHA proposed to reduce the standard to 0.5 f/cc, but founded Its proposal on a policy to set PEL'S for carcinogens as j, " low as technologically and economically feasible. The ; _ Agendy did not act quickly and, in 1980, the Supreme - Court rejected the proposition that such a general policy * may serve as te basis for any rule, and held that OSHA ; must make an actual finding that die workplace is unsafe : " before it promulgates a standard .'Industrial Union de partment v. American Petroleum Institute, 448 U.S. 601, ; 100 S.Ct/3844, 65 L.Ed.2d 1010 (1980).-OSHAbases its _ '1983 promulgation of an ETS lowering the PEL to 0.5 ~"f/cc, however, on specific data compiled and analyzed by OSHA that lead it to conclude that a "grave danger" ex- ists, necessitating immediate action. 48 Fed. Reg. at ` '51.088." ; ..' No new data of discovery leads OSHA to invoke its -pTfraitrninary plMiuttj; aild IQW&rThe asbestos PEL. Rather, OSHA bases its conclusion that a grave danger ; -s' -? To obtain equitable relief pending further Judicial action on the merits, an applicant must establish (1) a -substantial likelihood of success on the merits; (2) danger - `of irreparable harm if the court denies interim relief; (3) - that other parties will not be harmed substantially if die - court grants interim relief; and (4) that interim relief will not harm the public Interest. Virginia Petroleum Job bers Ass in. r. Federal Power Commission, 104 U.S.App.D.C. 106, 259 F.2d 921, 925 (1958). In Taylor - 'Diving & Salvage Co. v. Department ofLabor, 537 F.2d 819, 821 n. 8 (5th Cir. 1976) this court applied Virginia Petroleum Jobbers' four criteria to application for stay " pending review of an OSHA ETS. ' ` Subsequent interpretations of the four legal crice- ' ria de-emphasize the likelihood-of-success criteria and emphasize balancing the equities of the situation. United States v. Baylor University Medical Center, 711 F.2d 38 (5th Cir. 1983). OSHA adopted the 12.0 f/cc PEL by adopting a na tional concensus standard existing in 1971, the year the Occupational Health and Safety Act became effective. Section 6 of the Act explicitly allowed OSHA to adopt na tional concensus standards, and directed the agency to establish standards "as soon as practicable." 20 U.S.C. |655(a). On December 7, 1971, OSHA lowered the 12.0 f/cc standard to 5.0 f/cc by using, for the first time, its ETS powers. The action was not challenged, and in June of 1972, it became a permanent standard through normal r.ov.ce-ar.d-comrr.ent procedures. 48 Fed. Reg. at exists on quantitative risk assessments. which are math ematical extrapolations/ fo tE^TDceliEobd of contracting an asbestos-related disease at various levels of exposure to asbestos particles. The risk assessment, which OSHA completed in July of 1983, and a meeting a few months earlier between the Assistant Secretary of Labor and a recognized expert in the asbestos epidemiology field, heightened OSHA's awareness of the asbestos situation and precipitated the ETS. ' - " OSHA calculated the likelihood of developing lung cancer, mesothelioma,' and gastrointestinal cancer due to contact with ambient asbestos fibers at different expo sure levels. By applying Its calculations to an estimated working population exposed to asbestos, OSHA claims that 210 lives eventually can be saved from cancer by lowering the PEL to 0.5 f/cc for six months. 48 Fed.Reg. at 51,086. These'figures include deaths that will occur at OSHA's estimated current actual exposure levels and in clude employees working in environments where the den sity of ambient asbestos particles is 20 f/cc, ten times the current PEL. Even if, however, OSHA removes from the computation those employees who do not enjoy the benefit of the current 2.0 f/cc PEL because it is not en forced in their work place, and counts only those employ ees who are exposed to ambient asbestos between the levels of 2.0 f/cc and 0.5 f/cc, OSHA estimates it can save 80 lives by lowering the PEL for six months .* OSHA calculated the number of lives saved by first deriving a mortality rate, which is the number of excess deaths ' because of exposure to ambient asbestos parti cles atjdifferent levels. It then multiplied the number of* 14 ,; ' ' Mesothelioma is an incurable cancer'infecting the mesothelium, a layer of flat cells lining the membranes enclosing the heart, abdominal cavity, and thoracic cav ity and lungs. . -- * OSHA's own data, however, indicates that the ac tual number of asbestos-related cancer deaths prevented by a 0.5 f/cc standard would be approximately 40 for six months. Approximately 71% of the benefits of OSHA's ETS accrue in the drywall construction industry where demolition and other activities generate large amounts of ambient asbestos particles .-'OSHA specifically estimates it could save 57 lives in that industry by lowering the PEL for six months/'assuming the entire industry currently complies with the 2 f/cc standard. 48 Fed. Reg. at ' 51,097 (Table 4). Its estimate of employee exposure, however, indicates that of all 51,621 employees estimat ed to be working in that industry, 38,666 or approximate ly 75% currently are exposed to only 0.2 f/cc. Id. at 51,094 (Table 1). Consequently, these workers would net benefit by lowering the standard to 0.5 f/cc. Reducing OSHA's calculations by 75% indicates that approximately 14 drywall construction workers will benefit from the ETS. Stated differently, approximately 43 of the 57 work ers already are exposed to levels below that which the ETS would permit. ' ' Excess deaths are those that would not occur in a control group not exposed to asbestos. 48 Fed. Reg. at 51,101. For mesothelioma, the number of excess deaths projected due to asbestos exposure also is the total num ber of deaths, because mesothelioma almost never oc curs in someone not exposed to asbestos. Id. at 51,0S9. " Because of the latency period for most asbestosrelated cancers, OSHA had no observations for asbestesrelated deaths under the current 2 f/cc PEL. OSHA calculated a mortality rate for the 2 f/cc PEL by estimat ing the cumulative number of particles to which a worker will be exposed over varying lengths of time at 2.0 f/cc, and then applying the mortality rate to higher exposures over a shorter period of time. For example, a worker exposed to 0.2 f/cc for ten years would be as likely to de velop cancer as a worker exposed to 0.4 f/cc for five years. The validity of this calcul^tioa depends or. the as- Published by THE BUREAU Or NATIONAL AFFAIRS, INC., Washington. O.C. 20C37 DPMC-17093 (DLR) TEXT (No. 4S) D - 3 workers currently exposed at chose levels by the mortal ity rate. Finally, to obtain a projected number of lives saved, it subtracted the number of deaths that it esti mates will continue to occur even at the new PEL from the number of deaths likely to occur at the higher levels of , exposure, which resulted In 210 deaths for six months exposure. 48 Fed. Reg. at 51,095-51,097 and Chart 4. The underlying data base from which OSHA derived its mortality races consists of eleven epidemiological studies which OSHA felc contained sufficient data to allow computation of quantitative risk assessments for lung cancer. Four of these studies OSHA decided also provide sufficient data to compute risk assessments for mesothe lioma. These eleven studies observe a total of appropri ately 53,000 workers In several countries and in a wide range of occupations. The studies Include Insulation workers, production workers, maintenance employees, textile workers, miners, and millers. They observe a variety of exposure levels, and Include workers exposed to the three commonly occurring asbestos fiber types.".' . 48 Fed. Reg. at 51,101-51,105.. ^ . .c .i JRB Associates, a private research firm, actually performed the mathematical computations to estimate the ' benefits of reducing the asbestos PEL from 2.0 f/cc to .. 0.5 f/cc. Additionally, JRB Associates estimated the .. . number of workers currently exposed to asbestos, rely-, ing on.1980 worker population estimates made by Re- search Triangle Institute (RTI). JRB updated the RT1 estimates to incorporate more recent employment statis tics . Final Report, Benefits Assessment of Emergency ' Temporary and Proposed Asbestos Standards, JRB Asso- . dates (1983) (Record Exhibit 84-393). OSHA evidently r , .also estimated the number of workers currently exposed to asbestos, by updating the 1980 RTI figures to reflect data it had accumulated over the past, three years enforc- ; ing the 2.0 f/cc PEL. 48 Fed. Reg. at 51,092. Finally, OSHA had its conclusions reviewed by sev eral experts. Most of these reviews are favorable, at leas: regarding OSHA's mathematical methodology and overall conclusions." .- sumption accepted by most, but not all, researchers that the likelihood of developing asbestos-related cancer var ies directly with the number of fibers Inhaled, and is not independently affected by intensity or duration of ^ exposure. .- 11 The three fiber types are crocidolite, amosite and chrysotile. OSHA concluded that three should be subject to a uniform regulation, partially for practical reasons. Inconclusive evidence, however, suggests that some fi ber types are more harmful than others. 48 Fed. Reg. at 51,115-51,121. " OSHA first submitted, by motion to amend the '' record, only the seven peer reviews on which it claimed to rely to support its ETS. This court granted that motion prior to oral argument,'over the petitioners' objection. The petitioners informed the court that other, unfavor able peer reviews existed. At oral argument die court requested that OSHA either produce the unfavorable re ports or exolain their absence from the record. OSHA subsequently complied with the request. It also acknowl edged that it considered all peer reviews, both favorable and unfavorable. Because of the extraordinary posture of the court reviewing an ETS, made more extraordinary by the statutory reqirement that we review it under a sub stantial evidence standard, 29 U.S.C. 665(f), we also considered the unfavorable reviews as well as the favor able ones to aid us in our understanding of this techno logically complex case. To do otherwise "would convert the reviewLng process into an artificial game." Amoco Oil Co. y. EPA, 501 F.2d722, 729 n. 10 (D.C.Cir. 1974) (admitting evidence accumulated after rule promulgation to assess validity of pre-rule predictions). HI. We note at the outset of our analysis that immedi ately after its November publications, OSHA commenced regular notice-and-comment rulemaking to decide wheth er to impose a new permanent PEL for asbestos. The statute requires that the Secretary promulgate a perma nent standard no later than six months after publication of the ETS. 29 U.S.C. 1655(c)(3). At oral argument OSHA's counsel stated that OSHA could complete full notice-and- comment rulemaking within one year, presumably even without the Impetus of the ETS requirement that it do so within six months." Consequently, the practical effects of our decision on the regulations enforced in the workplace will endure only a short time. We are, however, con cerned not only with practical Implications, .but also with the legal Issue of the extent of the Secretary's power to determine when an emergency situation exists and his powe'r to act in such a situation, t ... T_ :1';." ' The standard under which we review OSHA's new PEL is whether the Agency's action is "supported by sub stantial evidence In the record considered as a whole.*11 29 U.S.C. 5655(f). This court's decision in Florida Peach Growers v. Department ofLabor holds that an ETS is like any other OSHA regulation under pre-enforcement judici al scrutiny for purposes of imposing the statutorily pre-. scribed substantial evidence standard. 489 F.2d at . 127-28. Consequently, we must take a "harder look" at OSHA's action than we would if we were reviewing the ac tion under the more deferential arbitrary and capricious standard applicable to agencies governed by the Adminis trative Procedure Act.14 . Even though we must apply die substantial evidence test, OSHA urges us to apply it less rigorously In review ing an informally promulgated ETS than we would in re viewing a standard imposed after formal - notice-and-comment rulemaking procedures. Indeed, the anomaly of being required to make a searching review of the evidence, but being provided only with a record of a volume and technical complexity that would tax the com petency of any court.'forces us to concede the Agency's contention to a degree. The'record fills nine large boxes, and contains years' worth of accumulated asbestos re ports and studies from all over the world. It also includes mathematical and statistical computations, and letters and memoranda to, from and between government ' agencies.' - We recognize that the general rule is that court cannot consider evidence not relied on by the agency in reviewing agency action. Motor & Equipment Mfrs. Assn, Inc. r. EPA, 627 F.2d 1095, 1105 (D.C. Cir. 1979); Dry Color Mfrs. Ass'n v. Dept, of Labor, 486 F.2d 98, 104 n.8 (3d Cir. 1973). This case does not cre ate an exception to that rule, nor present the question whether a court may consider evidence not relied on by the agency, but merely submitted by one of the parties after ETS promulgation. 11 At oral argument OSHA intimated that even with the ETS requirement that It promulgate a permanent standard within six months, the complexity of the data in this case might make impossible such rapid action. We note, however, that the statute says the agency "shall promulgate a standard no later than six months after pub lication." 29 U.S.C. 5655(c)(3). The statute does not contemplate the agency's allowing the new rule to lapse. M See 5 U.S.C. 706. See also Vermont Yankee Nu clear Power Corp. v. NRDC, 435 U.S. 519, 549, 98 S.Ct. 1197, 1214, 55 L.Ed.2d 460 (1973); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Texas Independent Cinners Ass'n v. Marshall, 630 F.2d 339, 405 (5th cir. 1980). Published by THE BUREAU OP NATIONAL AFFAIRS. INC., Washington. O.C. 20037 LAM 001397 DPMC-17094 V.- -/ (DLR) 1 n o .< The type of administrative proceeding giving rise to In reviewing the ETS, we also must remain aware the regulation, and the form of the record it produces, that the plain wording of the statute limits us to assessing inevitably influences Judicial review. A record like the the harm likely to accrue, or the grave danger that the one before us cannot be reviewed as a record in which ad ETS may alleviate, during the six-month period that is versary proceedings have narrowly focused the facts and the life of the standard. OSHA urges us to assess the issues in dispute. Florida Peach Growers, 489 F.2d at harm likely to accrue over at least a year, even though 123-29. While we do not question risk assessment as a the ETS expires six months from its promulgation. At 1..: oi sitioiying the ruor tir.tlc'.-c. r-.7.=: rt- oral argument CSHA said that even if the ETS lapsed be quirement, CSHA's reliance on several studies to com fore OSHA promulgated a permanent regulation, the pute a mathematical quantitative risk assessment, and its benefits of the EST likely would continue because employ reliance on the 1983 JRB Report for its estimations of the ers will have expended the resources to comply with the population at risk, which in turn relies on the 1980 RT1 new lower standard and would have no Incentive to revert report, makes the evidence supporting OSHA's action to old practices. These post hoc rationalizations cannot elusive indeed. be accepted as basis for our review; first, because the While the ultimate question is whether the record ETS statute does not contemplate the Secretary's allowing contains "such relevnt evidence as a reasonable mind an ETS to lapse before he promulgates a permanent might accept as adequate to support a conclusion," Con- standard, and second, because to assume that the em 'solidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 ployers will not revert to less exacting standards is pure S.Ct. 206, 217, 83 L.Ed. 126, (1938), the nature of the speculation. The opposite is equally plausible, especially evidence in this case requires that we inquire into wheth- given that OSHA allows compliance with the ETS through er OSHA "carried out (its] essentially legislative task in methods as simple as wetting floors or wearing respira a manner reasonable under the state of the record before tors. See 48 Fed. Reg. at 51,086. [it]." Aqua Slide 'i1 Dive Corp. v. Consumer Product In its November 4 publication OSHA partially Justi Safety Commission, 589 F.2d 831, 838 (5th Cir. 1978) fied its decision to issue an ETS on the fact that notice- (quoting Florida Peach Growers, 489 F.2d at 129). In and-comment rulemaking often takes several years to making this inquiry , we must, of course, defer to complete, excluding possible subsequent postponements OSHA's fact-finding expertise. Aqua Slide 'if Dive Corp., of the effective date caused by court-ordered stays pend 569 F.2d at 838. See also Industrial Union Department, ing judicial review. 50 Fed. Reg. at 51,089. OSHA ap 448 U.S. at 652, 100 S.Ct. at 2870, 65 L.Ed.2d at--------- parently would have us assess benefits in this light. We The extent to which the supporting evidence has survived cannot do so. As noted earlier, OSHA concedes that it can public and scientific scrutiny, however, will affect the complete rulemaking within one year. Additionally, as its weight given to it by an Inexpert Judiciary." Aqua Slide `if legislative history makes clear, the ETS statute is not to j Dive, 569 F.2d at 838. be used merely as an interim releif measure, but treated i as an extraordinary power to be used only in "limited sit- I The Agency's essentially legislative task, more uations" in which a grave danger exists, and then, to be j over, necessarily requires that it make two types of de "delicately exercise!." Public Citizen Health Research I terminations. In Industrial Union Department, AFL-CIO Group v. Auchter, 702 F.2d at 1150 (D.C. Cir. 1983). I v. Hodgson, 499 F.2d 467 (D.C. Cir. 1974), the United See also Taylor Diving & Salvage v. Department of La- i States Court of Appeals for the District of Columbia re bor, 537 F.2d 819, 820-21 (5th Cir. 1976); Florida Peach j viewed an asbestos PEL set by the Secretary after notice- Growers, 489 F. 2d at 129; Dry Color Manufacturers' and-comment rulemaking procedures. In discussing Ass'n 486 F.2d at 104 n. 9a (3d Cir. 1973). The Agency application of a substantial-evidence standard of review cannot use its ETS powers as a stop-gap measure. This I to an informal, essentially legislative proceeding, the .court recognized that only some of the Agency's decisions would allow It to displace its clear obligations to promul gate rules after public notice and opportunity for com- i are capable of being reviewed under the usual substan ment in any case, not just in those in which ETS is ! tial-evidence standard. The Agency makes these re- neces sasry to avert grave danger. See 29 U. S. C. ; viewable decisions primarily by "evaluating the data and 655(b). drawing conclusions from it," and the court "can review that data in the record and determine whether it reflects IV' LAM 001398 substantial support for the Secretary's findings." Id. at 474. To speak of substantial evidence review with respect A. to other determinations, however, is anomalous, be The ALA urges us to hold that OSHA must have new cause these determinations Involve policy choices or fac- information before it promulgates an ETS." An "emer .tual determinations so much "on the frontiers of gency" cannot exist, it argues, when the Agency has scientific knowledge" that they resemble policy determi nations more than factual ones. Id. Judicial review inher " The ALA argues that OSHA's successful invocation ently legislative decisions of this sort is obviously an of its ETS powers are distinguishable from its unsuc undertaking of different dimensions," Id. at 475, and re cessful uses on the basis of the existence of new informa quires deference to the Agency that is furthering goals tion. We do not wholly agree. Certainly, OSHA has used that Congress thought to be salutory. Thus, with "a due its ETS powers successfully to address a situation that respect for the boundaries between the legislative and the recently came to light. In 1974 OSHA issued an ETS for judicial function," we "approach our reviewing task with vinyl chloride within weeks after learning that workers' a flexibility informed and shaped by sensitivity to the di deaths were attributable to exposure to that substance. verse origins of the determinations that enter into a leg No one contested the Agency's action. See 39 Fed. Reg. islative judgment"made by an agency. Id. 12,342 (1974). See also Society of Plastics Industries, Inc. v. OSHA, 509 F.2d 1301 (2d Cir. 1975) (upholding fi nal rule). Similarly, in 1977 OSHA issued an ETS for 1,2 " When new daca or, as in this case, new mathemat Dibramo-3-Chloropropane (DBCP), after having become ical extrapolations, provide the basis for the new rule, aware in just a few months that exposure to even small independent peer reviews may be extraordinarily helpful amounts of the chemical caused sterility. See 42 Fed. to die court. See supra note 11. Precisely because the Reg. 45,536 (1977). In 1971, however, OSHA used its data has not been scrutinized, however, the court has ETTi powers to lower the asbestos PEL from 12 f/cc to 5 particular interest in having access to both favorable and f/cc, having concluded only that asbestos presented a unfavorable peer reviews. i "grave danger." me 1971 action was not challenged. DPMC-17095 (No. 48) D - 5 known for years that asbestos constitutes a serious health risk and, in fact, has had all the data it uses to support its November 4 action at hand, but nevertheless failed to act on it. Although new information may be a sound basis for an ETS, we decline to hold that OSHA cannot issue an ETS in its absence. As OSHA admits, the Agency's fail ure to act may be evidence that a situation is not a true . emergency, but we agree with OSHA that failure to act 1 dees not conclusively establish that a situation is not an er.teri-er.cy. The ETS statute itself, allowing the Secretary to promulgate an ETS in response to "grave danger ... or . . . new hazards," precludes our Imposing a "new in formation" requirement on OSHA. Additionally, to im pose such a requirement would imprudently circumscribe the Secretary's ability to act in response to serious situ ations. If exposure to 2.0 f/cc.of asbestos fibers creates a grave danger, to hold that because OSHA did not act 'previously it cannot do so now only compounds the conse quences of the Agency's, failure to act.... < .. ~., OSHA should, of course, offer some explanation of its timing in promulgating an ETS, especially when, as here, for years it has known'of the serious health risk the regulated substance poses, and has possessed, albeit in unrefined form, the substantive data forming the basis for the ETS." In this case OSHA says it acted in response to new awareness of the danger of asbestos and in re sponse to extrapolated data that did not become available until July of 1983, four months before it promulgated the ETS. We are not prepared to say that such heightened awareness; cannot Justify the Secretary's action. Additionally, even if adequately explained, an ETS must, on balance; produce a benefit the costs of which are not unreasonable. The protection afforded to workers should outweigh the economic consequences to the regu lated industry. American Petroleum Institute v. OSHA, 581 F.2d 493, 502-03 (5th Cir. 1978) aff'd subnom Indus trial Union Department v. American Petroleum Institute, 448 U.S. 607, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980); Florida Peach Growers, 489 F.2d at 130.11 OSHA con- - Other invocations of the ETS power have failed. None, however, has failed solely because the Agency.did not act pursuant to newly acquired information. See American Petroleum Institute v. OSHA, 581 F.2d 493, 503 (5th Cir. 1978) aff'd sub nom Industrial Union Dept, v. American Petroleum Institute, 448 U.S. 607, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980) (benzene ETS failed for lack of substantial evidence); Taylor Diving and Sal vage Co., Inc. v. Dept, of Labor, 537 F.2d 819, 821 (5th Cir. 1976) (temporary stay granted because petitioners showed likelihood of success on the merits and irrepara ble harm); Florida Peach Growers Ass'n., Inc. v. Dept, of Labor, 489 F.2d 120, 129 (organophosphorus pesti cides ETS failed for lack of substantial evidence); Dry Color Mfrs. Ass'n., Inc. y. Dept, of Labor, 486 F.2d 98 .(3d Cir. 1973) (fourteen carcinogens ETS failed for fail ure to adequate state reasons. ..- ; OSHA completed a risk assessment in 1981 that concluded that between 8 and 260 deaths per year would occur at the 2.0 f/cc PEL. At oral argument, counsel for OSHA said the Agency did not act then becaue it considred the data to be coo unrefined. Although in this case the agency conducted a for mal cosc-benefic analysis, we do not imply that the Occu pational Safety and Health Acc requires the agency to do so before it promulgates an ETS. Indeed, in true "emer gency" situations, that the agency would have time to conduct such an analysis is unlikely. The American Pe troleum Institute and Florida Peach Growers cases re quire only thac in reviewing whether the agency's action was reasonable under the circumstances, we analyze the anticipated benefit of the ETS in light of its probable consequences. . .ducted a benefits analysis prior to promulgating the ETS, and concluded that the cost of compliance with the lower ** PEL is reasonable compared to total industry sales vol ume. Further, OSHA concluded that the costs are fairly distributed, because the industries in which asbestos-re lated risks currently are greatest are the Industries thac must spend the most to comply with the lower standard." In no industry does the compliance cost exceed 7.2 cents per dollar of sales,'and in most industries, the cost of compliance is less chan one cent per dollar. 48 Fed. Re-?, at 51,136-51, 137 and Tables 17 and 18. We cannot say that the cost of compliance is unreasonable if the ETS in fact alleviates a grave danger.' -- The ALA does not complain of the cost of compliance with the new PEL, however, as much as of the anticipated ripple effects that OSHA's action will have on the asbes tos products market. -The ALA argues that asbestos users will substitute other products for asbestos because of the alarm the ETS causes throughout the industry In labeling the situation as an emergency. Indeed, such consider ations, are not Insignificant. As this court has noted, "It is.essential that employees be protected against exposure to highly toxic materials, but this should be done without eliminating the [asbestos industry] and the associated Jobs." Florida Peach Growers, 489 F.2dat 130." The in dustry, however, already will have felt any ripple effects . precipitated by OSHA's declaration of an emergency, and our holding today cannot undo whatever harm'has been ' done, especially in light of the fact that the ETS now is a proposed permanent standard. The AIA, moreover, fails to convince us that the ETS seriously jeopardizes the as bestos industry, or even that the harm due to lost sales will be significant. .... J .. .. The ETS statute requires that the Secretary issue an ETS only after he finds substantial evidence indicating both that a "grave danger" exists and that an emergency standard is "necessary" to protect workers from such danger. Thus, the gravity and necessity requirements lie at the center of proper invocation of the ETS powers. No one doubts that asbestos is a gravely dangerous product. The gravity we are concerned with, however, is not of the product itself, but of six months exposure to it at 0.5 f/cc, as compared with six months exposure at 2.0 f/cc. Our inquiry, then, is a narrow one,' and requires us to evaluate both the nature of the consequences of exposure, and also the number of workers likely to suffer those consequences. _. . . . 'According to the Secretary', the consequences of ex posure to significant amounts.of asbestos are likely to be fatal. Victims of lung cancer, mesothelioma, and gastro intestinal cancer have poor survival rates. Additionally, workers exposed to significant amounts of asbestos run a . " For the six months the ETS remains in effect , the average cost per worker of compliance Is $708. The con struction industry cost per worker is $973, the highest of any industry segment. The automotive aftermarket in dustry has the lowest cost per worker at $251. 48 Fed. Reg. at 51,137, Table 17. The estimated employee expo sure in the automotive aftermarket currently is less than 0.1 f/cc for the vast majority of employees. Id. at 51,093, Table 1. * OSHA itself noted that "the nature of the action it self, and the accompanying enforcement program will un doubtedly boost the incentives to comply with all protective provisions of the asbestos standard." 48 Fed. Reg. at 51,098. Exactly what OSHA intended by this re mark is unclear from the context of the publication. Cer tainly, for OSHA to use its ETS powers expressly to alarm the industry is illegitimate, and would count against the Agency in a judicial challenge. Published by THE BUREAU OF NATIONAL AFFAIRS. INC.. Washington, O.C. 20037 LAM 001399 DPMC-17096 LAM 001400 D - 6 (No. 48) TEXT CDL-' risk of developing asbescosis, a serious condition caused less than 80." Both the gravity of the risk as defined by by :ha accumulation of asbestos fibers in the lungs. The OSHA and the necessity of an EST to protest against it are symptoms of asbestosis range from shortness of breath therefore questionable. in mild cases to respiratory failure and death in serious Additionally, although risk assessment analysis is cases. Counsel for the petitioners at oral argument ' an extremely useful tool, especially when used to project agreed that asbestos, at some level of exposure, will lifetime consequences of exposure, the results of its ap cause cancer and asbestosis, and, indeed, the number of plication to a small slice of time are speculative because the unde-lving database projects only long-term risks. docket almost makes the fact one appropriate for judicial Epidemiologists generally study only the consequences oi notice. Thus, we do not have a situation In which the symptoms of exposure are "easily curable and fleeting." See generally Florida Peach Growers, 489 F.2d at 132. . Nor do we have a situation in which the danger of develop- ing a serious disease is speculative. See generally Dry long-term exposure to asbestos. Indeed, OSHA concedes some unreliability and uncertainty to be inherent in risk /assessment generally. Applying the risk assessment process to a period of six montns. one-ninerietnof OSHA's_estimated-working lifetime, only magnifies those Color Manufacturers Association 489 F.2d at 106. ' inherent uncertainties. - - - ' OSHA claims that by permanently lowering the present 2.0 f/cc PEL to 0.5 f/cc, it will save sixty-four lives per one thousand workers over a working lifetime of forty-five years. See 48 Fed. Reg. at 51,100. Over six ---- :--By Holding as we do in this case, however, we do not )intimate at all that risk-assessment analysis is inappro priate evidence on which to base any standard, temporary or permanent. We say no more than that evidence based months, this works out to eighty uve.s out of an estimated worker population of 375,399." 48 Fed. Reg. at 51,094`'51,095. As the Supreme Court has noted, the determina- on risk-assessment analysis is precisely the type of data that may be more uncritically accepted after public scru tiny, through notice-an-comment rulemaking, especially when the conclusions It suggests are controversial or a policy consldgratfomhat Delongs, In'the-frrsrinstance subject to different interpretations. / 'to the Agency. Industrial Workers Union. 448 Lf.S. at '656, n. 62; 100 S.Ct. at 2871; 65 L.Ed.2d at "Some risks are plainly acceptable and others are plainly unacceptable." Id. at 655; 100 S.Ct. at 2870; 65 L.Ed.2d at. The Secretary determined that eighty lives at , - _r C. . . . - Even assuming that OSHA's projected benefits would accure from the ETS, however, we hold that OSHA's action must fail for another reason. The Agency :risk is a grave danger. We are not prepared to say it is has not proved that the ETS OSHA's most dramatic not. - .... weapon m its enforcement arsenal, is "necessary" to ' The Agency need not support its conclusion "with achieve the prajectedbenefits------------- - anything approaching scientific certainty." Id. at 656, As OSHA concedes, the probable practical effect of 100 S.Ct. at 2871; 65 L.Ed.2d at. Additionally, so the ETS, which allows compliance through "any feasible long as the Agency supports its conclusion with "a body of combination of engineering controls, work practices, and reputable scientific thought," it may "use conservative personal protective equipment and devices," would be assumptions" to support that conclusion. Id. The Agency that employers would require employees to wear respira also has a prerogative to choose between conflicting evi tors . Current regulations already require employers to dence of equivalent quality, and a court will consider a outfit workers with respirators that can provide up to one finding consistent with one authority or another to be sup hundred-fold protection. 29 C.F.R. ported by substantial evidence. American Petroleum In 1910.1001(c)(2)(iii), (d)(2)(ii), and (d)(2)(iii)." Yet stitute, 581 F.2d at 507. * OSHA did not include in its calculations the effect of en "*' - 'The Secretary must, however present a statement forcing the current standard by requiring employers in of the reasons for his action. 29 U.S.C. 5655(e). It is the drywall construction and demolition industry to fur axiomatic that the reasons the Agency gives at the time it nish these respirators. Counsel for OSHA informed the acts form the actual basis for the Agency's action. See, court at oral argument that the Secretary considers the e.g. Industrial Union, AFL-CIO v. American Petroleum regulation requiring construction and demolition workers Institute, 100 S.Ct. 2844, 2858 n.31 (1980) (plurality): to wear respirators to be unenforceable absent actual . As we have often held, the validity of an agency's de termination must be judged on the basis of the agency's monitoring to show that ambient asbestos particles are so far above the permissible limit that respirators are nec- stated reasons for making that determination. See SEC v. Chenery Corp., 318 U.S. 80, 95 S.Ct. 454, 462, 87 = See supra note 8. L.Ed. 626 ("[A]n administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its ac tion can be sustained"); FPC v. Texaco Inc., 4178 U.S. 380, 397, 94 S.Ct. 2315, 2326, 41 L.Ed.2d 141; FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 249, 92 S.Ct. 898, 907, 31 L.Ed.2d 170. See also Citizens to Preserve Overton Park v. Volpe, 91 S.Ct. 814, 825 (1971). OSHA has made the number of deaths avoided -- at least " 29 C.F.R. 1910.1001(d)(ii) and (iii) provide [emphasis added): (ii) .Powered air purifying respirators. A full facepiece powered air purifying respirator, or a powered air purifying respirator, or a respirator described in paragraph (d)(2)(iii) of this section, shall be used to reduce the concentrations of airborne asbestos fibers in the respirator below the exposure limits prescribed in paragraph (b) of this section, when the ceiling or the 80 -- the basis for its rulemaking. Yet it is apparent from an examination of the record that the actual number of lives saved is uncertain, ansd is likely to be substantially 8-hour time-weighted average concentrations of as bestos fibers are reasonably expected to exceed 10 times, but not 100 times, those limits. (iii) Type "C" supplied-air respirators, continuous flow or pressure-demand class. A type "C" continu ous flow or pressure-demand, supplied-air respirator " In the November 4 publication, OSHA stated that i shall be used to reduce the concentrations of airborne 210 lives will be saved over six months. The Agency, asbestos fibers in the respirator below the exposure however, concedes that this figure is inflated because it i includes those lives that OSHA could save by enforcing its i limits prescribed in paragraph (b) of this section, when the ceiling or the 8-hour time-weighted average current 2.0 f/cc standard. See supra note 8 and accom air-borne concentrations of asbestos fibers are rea panying text. I sonably expected to exceed 100 times those limits. DPMC-17097 *t 3-12-84 (DLR) TEXT (No. 48) D - 7 essary to bring the employees' exposure within the PEL of 2.0 f/cc. Fear of a successful judicial challenge to en forcement of OSHA's permanent standard regarding res pirator use hardly justifies resort to the most dramatic weapon in OSHA's enforcement arsenal.'* Thus, lacking a satisfactory explanation why the ETS is a necessiry means to achieve the added saving obtainable by applica tion of the current regulations, we must assume that OSHA's claimed benefit should be discounted by some ad ditional, uncertain amount. OSHA also attempts to justify the ETS by emphasiz ing that the ETS does more to protect worker's health than simply lowering the asbestos fiber PEL. An ETS, however, is not necessary to achieve these ancillary benefits. The ETS requires employers to educate em ployees concerning the risks of asbestos exposure and the proper steps necessary to minimize exposure. While education is a worthy objective, OSHA could achieve it without invoking its extraordinary ETS power. Indeed, current regulations provide for worker training and edu cation. Id. at $1926.21. Similarly, OSHA supports its action by arguing that it plans to increase enforcement efforts, with the aim of encouraging greater compliance with the new standard than it estimates currently exists under the present standard. Increasing enforcement is another worthy objective; but it likewise cannot justify* * Indeed, Occupational Safety and Health Review Commission decisions do not support the Secretary's in terpretation. See Anaconda Aluminum Co., OSH Dec. (CCH) 125,300 (1981) (1910.1001 applies to all workers, not merely those exposed to concentrations of asbestos fibers greater than the allowable limit). The regulations themselves appear to authorize Type C respirators at 10 times the current PEL. See supra note 23. use of the ETS power, especially when, as in this case, much of the claimed benefit could be obtained simply by enforcing the current standard. In sum, although asbestos doubtless may present a grave danger to workers, the record considered as a whole does not substantially support OSHA's conclusion that an ETS lowering worker PEL from 2.0 i/cc to 0.5 f/cc is necessary to alleviate a grave risk of worker deaths during its six-month term. This court, in ruling on a challenge to an ETS, has "rejected] any suggestion that deaths must occur before health and safety standards may be adopted," Florida Peach Growers Association, supra at 132, and we make no such suggestion here. Ad ditionally, we do not decide whether the record would support a conclusion that some threat to workers' health of a magnitude substantially less than 80 deaths during the ETS period constitutes a grave danger necessitating an ETS of 0.5 f/cc. Gravity of danger is a policy decision committed to OSHA, not rn thg emirts, We hold only rhat an ETS that lacks support in the record for the basis OSHA has articulated must be declared invaiia. . ' V. OSHA may, of course, continue its plan to increase enforcement of the current PEL. If danger is imminent, it should complete nodce-and-comment rulemaking as quickly as possible to determine if a new standard lower ing the PEL to 0.5 f/cc, or even lower, is appropriate. Our finding here that substantial evidence does not exist to support a six-month ETS should not be construed as a prediction that a lower asbestos PEL would fail under ju dicial scrutiny if OSHA promulgates it pursuant to proper notice-and-comment rulemaking procedures. We determine the Emergency Temporary Standard to be invalid because the record, considered as a whole, does not indicate that the risk the ETS seeks to eliminate is "grave," as OSHA itself has defined it, or that the ETS is "necessary," as those terms are used in the ETS statute. ENFORCEMENT OF EMERGENCY TEMPORARY STANDARD STAYED. -- End of Text -- -- End of Section D -- ! Published by THE BUREAU OF NATIONAL AFFAIRS, INC.. Washington, D.C. 20037 LAM 001401 i i i! DPMC-17098 I