Document GbXdVynky7ergQ6X4KvRm2Ov

PLAINTIFF'S EXHIBIT Bell Laboratories ______ 3 li____ .. M To; tu.itf.C. P A. /!... L. L. C- * L. H. r I>:e. Xl. X. K 0.7 5. /. x r. C oO^ ad -f* / f Tfi aT OSH A '' U ' o assist** dec.*'**- . _ M(z- raUOF UHTT MACTICn * t w o t t -- * t MOMI -- *r ft*r r i LLA 001429 1138 Polychrome Corporation, dark, NJ, Is contesting i sviout citation and a U40 penalty (or 1910.23(cX1) for (ailore to guard an open tided platfceio. and 191#-312<*X*X11) fr failure to (Hard points of operation of a trash compactor (No. 24-9064). Rede* Corporation. Red Lien. Pa, Is conteatiac a ssrious citatloa and a 32,219 penalty for lll9 U(aXl) (or (allora to correct a slippery Boor, 1910.13S(a> (or fallore to protect workers (ram flying spark hazards, 19l6.2lS(bX9) (or (alive to pard movtng parti of an abrasive wheel machine, and II10.117(cXlXO (or (allure to guard points o( operation of a power pres* (No. 14-0121). Seareest CuMitrectien, Lancaster, N.Y, is contesting a repeated citation and a 11.960 penalty for 1926.631(b) for fallore to ihore the tides of s trench, and 1926.632(h) for fallore to provide an adequate means of exit for employes working in a trench (No. 14-0129). Snyder Sign Service. lac.. Cheektowapa, N.Y., Is contest ing a serious citation and a 2730 penalty for 1926.104(h) for OCCUPATIONAL SAFETY 8 HEALTH REPORTER fallore to provide a secure anchor for lifelines, and 1926.430(aX10) for failure to secure portable ladders while in oae (No. 24-0061). SSeae (Udge, lac, Aftaay, N.Y, is contesting a serious citation and 2230 penalty for 1926.400(a) tor failure to provide a ground for a (boresceot light iiture (No. 340127). Val Rater Works, lac, BtimJnghaa, Ala, Is contesting a serious citation and a 21.016 penalty for 1910.213(3X1) for fallore to guard points of operation of a radial saw. 1210.213(11X4) tor fallore to maintain a radial saw la no approved condition, and I910.21S(aX4) for failire to equip grinding machinery with work rests In proper adjustment (No. 34-6147). Veft Contraction, Inc, Great Falls, Meat, j contesting a serious citation and a 2416 penalty (or 1924.400(h)(1) for fallore ta equip a worksite with approved wiring, and 1926.401(c) for failure to provide a grounded path from power equipment (No. 44-0113). Full Text DECISION OF FIFTH CIRCUIT IN ASBESTOS INFORMATION ASSOCIATION v. OSHA (TEXT) IN THE UNTTH) STATES COURT Of APPEALS FOR THE FIFTH CTRCUTT Non. 23-4617. 23-4gggl 23-4469 No. 63-4711 ASBESTOS INFORMATION ASSOCIATION' NORTH AMERICA, et sL. Petitioners. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, et al.. Respondents. EAST TEXAS SERVICE CORPORATION, et al. Petitioners. versus OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, et al.. Respondents. Petitions (or Review of an Order of the Occupational Safety and Health Admimstratloo Before CLARK. Chief lodge. RUBIN and JOLLY. Circuit Judges. E GRADY JOLLY. Circuit Judge The Alkaline Information Amociation (AlA), an organisa tion of American and Cmadias maanfactnren of asbestos tionaTsafety and Health Admhdstntioa (OSHA) psspsilj by-pnaed aormal entire mrt rnwunti rulemaking procederea in favor at creating an Eaaigtncy Temporary Stand ard (ETS) lowering workesi' prrmiwihlr upoanit level I PEL) to ambient ajhestae ten horn 16 ten per cubic ceotimetv (f/cc) to 6 3 f ee. We hold that OSHA did not invoke its ETS powers property L Congress passed the Occupational Safety and Health Act (the Act) in 1976. codiked at 29 USC. $$451-471. to assure safe and healthful working conditions foe the Ration's wort force and to pwierve the nation's human resources. 29 U S.C. $631 (1976V Toward that goal the Art allows the Secretary of Labor (the Secretary), after public notice and opportunity for comment by interested persons, to promul gate rules and standards for occupational safely and health. Id at $6S5(b). The Act also allows the Secretary to by pass these normal procedures m taror of promulgating an ETS to take effect immediately upon pobtication to the Federal Register if be determines that employees are exposed to grave danger from expasnre to substances or agents deter mined to be tone or physically harmful or from new hax- j-i5 a* CocTfYjr* > SwffMu c* **aor *Nn ."ONt- Ln; u-w- w LLA 001430 CURRENT REPORT nj 1139 4nto." tod also determines "that neb (mergeocy lUndard it Mcemary to protect employees from web 4*ngcr " C.S.C. HSVcXD- The FTS statute further provida Uut the ETS as ehsll (erve as a proposed rule, and that the Secretary shall act on ihe rule no later taan sis moethx after publication' ____ Any (Uadard. including an ETS, properly Imposed aoder the Act has the force of law because the Act Imposes sport every employer1 the duty to "comply with occupational safety and health standards promulgated under this chap ter" or face civil and criminal penalties. 29 U.S.C J4S4. Florida Peach Grouters Association i\ Department of Labor, 411 FJd ISO. 113 <Sth Clr. 1974). On November 4. IMS, acting pursuant to its ETS enabling statute, OSHA published In the Federal Register an ETS lowering the time-weighted average PEL for ambient asbes tos fibers from 10 f/cc that are S microns or more in length' to OS f/ce 40 Fed Reg Sl.000-51.140 flMli See also C.F.R JfOlO.iOOl (1003) (text of current rule). In the November 4 nubUcation. the Secretary also included state ment of reasons to support his action as he is required by law to do. 29 U S C M53fc). See also Dry Color Manufac turers' Association r Department of Labor. 434 F.Jd 98 (3d Cir. 1973) (applying 5*33(0 to ETS pmmalgatioas). The ETS allows "any practical combination'* of engineer ing controls, work practices and personal protective equip ment to meet the lower PEL- The ETS also requires training to begin within thirty days (or all employees whose exposure is ' reasonably expected" to be at or above the PEL. Train ing must cover respirator fitting and one. asbestos handling, medical infortnalno. and the relationship between smoking, lung cancer and asbestos-related dtscmi. 49 Fed. Reg 31.139-31.140 11993) (lest of ETS). Finally, the Agency an nounced it would increase enforcement efforts in work places where asbestos is handled Id at 51.4*7 The A1A immediately petitioned OSHA to stay the effec tive date of the ETS ftwitting judicial review of whether OSHA's actioo to a proper application ot its ETS statute The Agency refused the stay. Subsequently, on November 17, 1993. the AIA petitioned this court for ao emergency stay pending judicial review of OSHA's action, arguing that its members would suffer irre parable harm if the stay were not granted, and arguing Its liVely ultimate success on the merits. After reviewing the arguments of both the AIA und OSHA. analyzing them according to well-established legal criteria ' far determining when a court Mould grunt equitable Interim relief, and balancing the equities Involved,' this court granted the stay but expedited fuQ bearing on the merits. We now bold that OSHA did not properly act pursuant to Its ETS enabling statue and that the standard in question, therefore, should not become effective absent notlce-and-commeot rulemaking n OSHA has regulated asbestoe since 1971 Its first asbestos PEL was 12.0 f/cc In 1172 OSHA reduced this standard to 5 f/cc.` and In 1974 OSHA again reduced the standard to the currently effective 2 f/cc. In 1973 OSHA proponed to redace the standard to 0.3 f/cc, but founded Its proposal on a policy to wt PEL'S for carcinogens as low as technologically and economically feasible, lie Agency did not act quickly and. in 19M. the Supreme Court rejected the proposition that such a general policy may serve as the basis for any rale, and held that OSHA must make an actus) finding that the workplace to mult before it promulgates s standard. In dustrial Union department v. American Petroleum In stitute. 441 U S Ml. 190 S.CI. 3*44. (3 LEd-2d 1019 (19*0) OSHA bases its 19*3 pramulgstioa of sn ETS lowering the PEL to 9.3 f/cc, howevet. os specific data compiled and analysed by OSHA that lend it to conclude that a "grave danger** exists, necessitating immediate action. 49 Fed. Reg at 31.9*9. No now data or discovery leads OSHA to Invoke Its extraordinary ETS powers and lower the asbestoe PEL Rather, OSHA basts its ennrhasten that a pave danger writes on gnantitsUve risk imemments. wkick are math ematics] extrapolations, of the likelihood of contracting an arbestor-related dtorase at venom levels of exposure to sihrstiw particles The risk amrismwn. which OSHA com pleted in July of 19*3. and a meeting a few months earlier between the Astestant Secretary of Labor aad a recognised expert in the asbestos epidemiology field, heightened Thr fall text of tSr statute says (I) The Swmsn shall orondr. withsnt regard to the rei|MiiiiHaii nfrbipim iftillri lirr ia iirirrim j lm|imr ilindiril to lake awiikitr effect open pakbcaniwi the Federal Ihpan if be detenus (A) that employen, are exposed to grave finger trem exponwe to isbrnie 11 or agems deterouaed to be tour or physically karaafal ot from ore hazards aad (B' that act emeigiary standard xs senaan to protect employers (ram saeh Singrr l2i Sack standard doll be cffecliev mill superseded by a standard promLgated m mwdinri wstb tbe ptutedam pre scribed in paragraph ill of iSb lUbsenmn (Ji I'poo pnblicatioa of snch standard m tbe Federal Regtster the Secretary shall commence a proceeding m accordance sntb snbsectmn tbi of Urn section, and the standard as pabbshed shall also serve as a proposed rule for tbe proceedac Tbe Secretary shall promnlgate a standard natter this paragraph no later than sis months after publication of the tmergeor> standard as provided m paragraph <2> of tbs subsection ru sc 5455>c Tbe Art define-.. in employer as a person engaged in > business affecting commerce who has emplovees btrt does not usclotfr tbe I rtiird Slates or am State or polilKil subdivision of a State T9 i SC 5*515. As much as tt~ of ambieot asbestos fibers mar be less than i rmcroas long and given tbe sophistication of measuring devices :on small In regulate 41 Fed Reg at 51 944 51 092 H94Ji ` To ohtaia oqmUNe rebel peadag fwtber jntenal action on tbe non. no appbems mat ntabftsh |l) a mbteaalial Bkekhnod of atna on the holti. |2l danger of repni alia bam if the eoart hau muan rebel |1> that other portae fill M be hormed mhteaattaOy If the cart grants laterun rebel, aad (4) that atrnra rebel ml) not harm tbe pahbc mlcrest Virpima Petrofemwi Jobbers Ass n r Federal Poster Ommisrem 1M U-SApp D C IN. 2S> F M 921. 925 (1959) b Tapinr Dtnnp A Salrapr Co t Department of Labor 5X7 F 2d 919 (21 o 9 15th Cir 1974i the conn appbed Vtrgima Petroleum Jobbers' fear enteru to ipptocauoa for stay peadag revtrw of so OSHA ETS ' Sibeymt aterpretatioas of the lew legal entena dr-etnpha stae tbe teehkond of-wremt entena and eznphasxrr halaacmg tbe egaitaa of tbe atxauaa l otted Slates r Bapfor l oti ersttp Medical Tenter, 711 Fid MlStbCtx 19*li ' OSHA adopted tbe 12 01 cc PEL by adopting a national cooserr sws standard rating in 1971. ibr yens tbe OrcxpaUocial Health and Salesy Art became effective Section 4 of the Act explicitly allowed OSHA to adopt satiocal cooseosis standards aad directed the agency to establah standards ' as soon as practicable 20 I SC Ka5ta> On December 7.1971 OSHA lowered tbe 12 0 I cc standard to 5 f cc by mag lor the Lrtt time us ETS powers Tbe action was sot challenged lad ta June of 1972. il became a permanent ftandard Ihruogh formal softer-and-comment procedures fl Fed R-g at 51,4*7 3 `5 At Cccuoar<<-a- Sa-er, 5 .vaur- ttepcete- LLA 001431 1140 OCCUPATIONAL SAFETY & HEALTH REPORTER OSHAt ittrnxv of tbe tubes toa situation and precipitated the ETS OSHA calculated tbe likelihood of developing lung cancer, mesothelioma,' tnd gastrointestinal cancer due to contact with tmLieol asbestos fibers at different exposure level? B> applying Ha cslculsUcm to an estimated working population exposed to aabeatoa, OSHA claim* that 210 live* eventually can be aaved from cancer by lowering the PEL to O S f/cc for ala month* 41 Fed Reg at St.MS Tbeie figure? Include death* that will occur at O&HA'a estimated current actual eipoaure level* and include employee* working In environ ments where the density of ambient aabeatos particles is 20 f/cc. ten times the current PEL Even If. however. OSHA removes from the computation those employee* who do not enjoy the benefit of the current 2.0 f'co PEL because It is not enforced In their work place, and counts only those employees who areexposed to ambient asbestos between the levels of 2.0 f/cc and O S f/cc. OSHA estimate* it can save lo livea by lowering the PEL for ala months1 OSHA calculated the somber of lives saved by first deriv ing t mortality rate, which Is the number of excess deaths ' because of exposure to ambient asbestos particles at differ ent levels * It then multiplied the number of workers cur rently eipoaed at those levels by the mortality rate. Finally, lo obtain a projected number of lives saved. It subtracted the number of deaths that it estimates wtlf continue to occur even at the new PEL from the number of deaths likely In occur at the higher level* of etposure. which resulted to 2)0 deaths for ux months exposure 4( Fed Reg at 51.095 51.097 and Chan 4 The underlying data base from which OSHA derived it* mortality rates consists of eleven epidemiological studies which OSHA felt contained Mirim data to allow computaUrn of quantitative nsk assessments for lung cancer Four ' Mesetbetiama b aa anriUr rawer iafertuig the meiotWImm a layer of flat cells lunue tfce membrane* enclosing Uw bran, ibdnmitxl canty, and thoranr rarity and twig? 1 OSHA * nwu data however, mdarale* that the artaal number of arbrflw related cancer deaths prevented by a *5 f or standard would he approatmateiy 4* for aa mouths Apprammalrlv It *1 the bcactfi *4 OSHA'* ETS accrue a the ywall construe m----d--m--t,,rj w.h.e.re dnHiUni--u a--ad e---t-h--e--r---a--r--t-j-n---l-ia-- ggraranunulelelalarge amnuun of ambitnt eahesto* pantries OSHA ipceitcalh estimate* it could auee 57 trees aa that ndatiy hy tew n ag the PEL lor m ----- . ----------------p* rotor mduatry conowtiy coaaltre wita tbe I f Fed Reg at J1.S9J iTablr li ns estnwair of hewerrr. udnits that at ait 51.S21 inpuii i estimated to he warfaag B that mdwstry SS.SSS or appmunatel? IS", rarreotly are tsprecd to h 13 ! ft Id at ll.fM (Table I Consequently.' thmr often would not hewedi hy towmog Ur standard ta * 5 . ee Reduriag OSHA s calraUtaoao h TS~ mdi rate that approximately If dyuall coastrortioo worker* wu1' brertl from Ur ETS Suied diflcrentlv. appeoximatrh of the tr worker* already arr upond in Inth below that wiurk the ETS would permit * Excess deaths are those that would not oreor a a control group boc exposed to asbestos 41 Fed Reg at hi.Idt Foe mesothelioma the Dumber of excess death* projected dor to asbestos expoeurr also n the total number of deaths became mesochetoou almost ortrr occurs a> someone not exposed to mbesiee Id at it 4th Berime el tbe latency period foe most asbestos related cancers OSHA had no observations for asbestos-related death? ander tbe current 1 f rr PEL 06HA calculated a mortality rale for tbe ; f re PEL by estimating ihr rumolalivr number of panicles m vrtioh a worhrf will be exposed over varying lengths of timr ai 2 0 I cc and then appiyiog 0>e modality rate to higher exposure? over a vhortr? period of time For example a woriet exposed to 0 1 f rc lor ten year* would be as Ulely lo drvrlop canrer as a worhrr eiposed lo Of f cr for Sve year* The validilv of till' ralmlati.'o depend? or the aammpfion accepted b? most Ihji do: all researrber-? that ibe li*elihood of developing asbrslos-rftated caiwrr varies direct)? *iir. tbe number of tbrrs inhaled arm is not independent!? ifmri bv mtrnsny or duration of exposure of these studies OSHA decided also provide tuScieni data to compute risk assessments for mesothelioma These eleven studies observe a total of approximately 55,900 workers in several countries and lo a wide range of occupations The studie- include insulation workers, proata.'uoc workers, maintenance employees, textile worker*, miner*, and mill ers They observe a variety of exposure levels, aad include workers exposed to tbe three commonly occurring asbestos fiber type*." 41 Fed Ref at 51,101-51.1*5 JRB Associates, a private research firm, actually per formed tbe mathematical computations to estimate tbe benefit? of reducing tbe asbestos PEL from 2.0 f/cc to 0.5 f/cc Additionally. JRB Associate* estimated the number of worker* currently exposed to asbestos, relying oe 1940 worker population estimates made by Research Triangle Institute (RTI) JRB updated tbe RTI estimates to incorpo rate more recent employment statistics Final Report. Benefits Assessment of Emergency Temporary and Proposed Asbestos Standards. JRB Associates (1913) (Record Exhibit 14-3931 OSHA evidently also estimated tbe number of workers currently exposed to asbestos, by updat ing tbe 1910 RTI figures to reflect data it bad accumulated over tbe past three vein enforcing the 2.0 f/cc PEI. 49 Fed. Reg at 51.092. Final)) OSHA bad its conclusions reviewed by several experts Moat of these reviews are favorable, at least re garding OSHAs mathematical methodology and overall conclusions. HI We note af the outset of our analysis that immediately after its November publication. OSHA commenced regular aottce-aad-eoaunent rulemaking to decide whether to un pose a new permanent PEL for asbestos The statute re quires that the Secretary promulgate a permanent gU-aUrd no later than six months after publication of the ETS 29 L'SC {455(c)(3) At oral argument OSHA's counsel staled that OSHA could complete full notice-and-coenroeut ru)e- Thr three titer type* are crondoiite. unantr and chrysotiir OSHA centladed that three should hr xuhjetl ta a wwtruui regula boo. partially for practical reasoaa brewlwm inhui. howev er. luggifti that sane hher type* are more harmful than other* ft Fed Reg at 5I.1IS-S1.IX1 OSHA km mbautted. hy motioa to amrad the record, eaiy the wren peer men oa wharh if (fanned to rely lo support its ETS The court graated that mouo* prior to oral mania, ever the petitioners ohjeeuoa The petmowen mfarmed the reart that other unfavorable peer reviews rested At oral irgwiw d ibr rowrt reqarsttd that OSHA either pradwte the uadavorabtr report* or exptam thnr absence from the record OSHA iuhn>uially cocnplwb with Ibr nquM ll also aekaowtedged that it coambteed alt per-? review* both favorablr and uafavarahte Became of the ntraorth sary posiure of the roan renewing an ETS made aacre rxtraordi oar* by thr Aatnorv reqirement that we renew It wider tahstantia; rvulrate standard I* 1`SC {dabfv we abo Tcwndrrr. 1 the onfarevabtr review? a* welt as tbe lavorabfa one* to aid wo ia our onberstaadtag of this trehnofogKallv rompfex ease To do otherwise would coawn the reviewing process into an irtihnal game (hi To i FFA 1 F Jd 722 779 olPIDCCir l7*. (admitting evidence aerorruiated afte- rule promolgation to assess iUntil' cf pee ru)e predirtions. We rerogmrr that the genera; role u? that rerun ranow romiorevidence no* retied on bv the agenev m reviewing agree? action \f<-.*o- f- Fqutj*ionF If/?? .-Ism /ni i FI .1 427 F 2d 109b 110? rl` r Ctr 14741 frrp I ntor tflr?A..n* (Vplo/Lobo. 444 F 3d 44 IM n * iid fir !S7), Tbis case doe* no! create n reception <o (ha: rule nor present tbe question whether a coon mat consider ideoce nor relied co bv the agree? but morel? subenttled tn cne cf ibe panics after FTfi promitigation 3 t5-e P [? lM 8ufiEr. C: ' - .(-AD. C. J?- ' -- - ? / j LLA 001432 CURRENT REPORT 1141 making within one year, presumably even without Ike Impe tus rf the ETS requirement that It do an within its months " Consequently, the practical etecta of our dedaion on the regulaliocs enforced In the workplace will endure only a short time We are, however, concerned not only with practi cal implications, but also with the legal issue of the extent of the Secretary's power to determine when an emergency situation exists and his power to act is such a attrition. The standard under which we review OSHA's new PEL is whether the Agency's action la "supported by auhatanlial evidence in the record considered as a whole" It U5.C. *5b<f) This court's decision in Florida Peach Grower* v. Department of Labor holds Hut an ETS is like any other OSHA regulation under pre-enforcement judicial scrutiny for purposes of imposing the statutorily prescribed substan tial evidence standard 419 F*d at 117-X9. Consequently, we must take a ' harder look" at OSHA's action than we would If we were reviewing the action under the more deferential arbitrary and capricious standard applicable to agencies governed by the Administrative Procedure Act." Even though we must appty the eubstantial evidence test. OSHA urges us to apply it less rigorously in reviewing an informally promulgated ETS than we would in reviewing a standard imposed after formal aotke-aad-commcnt rule making procedures. Indeed, the anomaly of being required to make a searching review of the evidence, hut being provided only with a record of a volume and technical complexity that would tax the competency of any court, forces us to cuucede the Agency's eontentioa to a degree The record fills nine large boxes, and contains yews' worth of accumulated asbestos reports and studies from all over the world It also includes mathematical and statistics! computations, and letters and memoranda to, from and between government agencies. The type of administrative ptoceedmg giving me to the regulation, and the form of the record it produces, inevitably influences judicial review. A record Uke the nee before us cannot be reviewed as u record in which adversary proceed ings have oarrowlv focaeed the facts and tames in dispute. Florida Peach Grmcrn. 499 F*d at 12*- While we do not question rnfc assessment as a valid means of satisfying IN sohstantiaKevideoce requirement. OSHA's reliance on several studies to compute a mathematical qualitative rnk assessment, and its reliance on the IMS JRB Report for its estimations of the population at risk, which in tun reties n the 1M* RTI report, makes the evidence supporting OSHA's action elusive indeed While the ultimate question is whether the record contains "such relevant endencr as a reasonable mind might accept is adequate to support a conelesion." Consolidated Edison Co i SLRB. MS U5 1*7. J*9. Sf S.Ct. **. *17. M UEd 126 119X8). (he nature of the evidence in this case requires that we inquire into whether OSHA "camd out (its) essen- Al oral arfwnmt OSHA animated Ikai mu into the ETS rrqairrmetn that it prumalgale a permanent suadard wrtkm sii months the rompleim of the data in tin case might make unpessi Mr rurh raptd artioa *> oote. kowevvr. that the statate says ihi ageno ' shall pronslgatr a suadard no later than su moaehs after publication 2* 1 SC HUirili The Uatvte does sot cootempUtc ibr agency s allowing Use new rule to lapse Srr 5 V S C 5TS* See also Vermont Vonlcrr .Vurfrar Pm ir t nrP , sync tjs i s sis m se set ns: nit. ss leu sd 160 11978. fin.-m to rreime Overton Park In.- r 1 otpr 401 I S 40? SI SO ) Jl LEd 3d 1S4 I1S7U Trios Independent l,,oners Ass n , Marshall US F ?d S 4 ISto rrr !S*, ttoilv legislative task In a manner reasonable under the state of the record before |ltj." Aqua Slide Dior Carp v. Consumer Product Safety Commission, MX FJd U). IK (Sth Or. 1171) (quoting Florida Peach Grower,, itt F*d at 1*9) to making this inquiry, we mat, of course, defer to OSHA's fset-finding expertbe. Aqua Slide Drte Corp., Ml F id it lit See also Industrial Union Depart ment. 44* US. it 432, no SCt it 1*7*. U UBUd it --------- The extent to which the supporting evidence has survived public and scientific scrutiny, however, srtd elect the weight given to it by an topper! judiciary '' Aqua Slide it' Dive. M9 FJd at US. The Agency'i essentially legislative task, moreovei. nec essarily requires that it,make two types of detei mutations In Industrial Union Department. AFL-CIO v. Hodgson 499 FJd 447 (D C. Cir 1974). the United States Court of Appeals fur the District of Columbia reviewed an asbestos PEL set by the Secretary after noUce-aod-cumment rule making procedures, to diseasing application of a subriantiaKevideace standard of review to an Informal, eneaUally legislative proceeding, the court recognized that only some of the Agency's decisions are capable of being reviewed mder the usual substantial-evidence standard. The Agency makes these reviewable decirious primarily by "ev*hutbg the data and drawing conchmoni from it," and the court "can review that data in the record and determine whether it reflects eahetewttol support for the Sec-etaryi filings." M. at 474. To speak of substantial evidence review with respect to other determinations, however, is soasmliiui because these determinations involve policy choices or fac tual deterulnatiocs so mark "on the frontiers of aruuKiknowledge" that they reuembie policy determmatsaos mere than factual goes. Id. "Judicial review of iaherewtly fegisUtive fleetotona of this sort is obviously an vdestafctog sf dtfereat dimensions." Id. at 473, and requires ihfnimi to the Agency that Is farthasing goals that Cmgras thought to be salutary That with "a due raped fa* the hiiuadailu between the legislative and the judicial (auction, we "ap proach ow- reviewiag task with a flexibility Informed and shaped by senailivTty to the diverse origint of the delcmunattous that enter into a legislative judgment" made by aa ageary. Id la reviewiag the ETS. we alao mast remain aware that the plain wording of the statute limits os to aamsiag the harm hkrty to accrue, or the grave danger that the ETS may alleviate, during the su-month period that is the life of the standard. OSHA arges an to asneas the harm dkeiy to accrue over at least a year, even thoagh the ETS expires six months from its promulgation. At oral argraewt OSHA said that even d the ETS lapsed before OSHA promatgatrd a perma nent regulation, the benefits of the EST likely ouald conto ur because employers will have expended the resources to comply with (hr arw lower standard and would have do incentive to revert to old practscex. These post hoc rational! taboos cannot be accepted as basis for our review, first, became the ETS statate does not cooteirpiate the Secre tary's allowing an ETS to lapse before be promulgites s permanent standard, and secood. became to assume that the employers will not revert to less exacting standards a pare When new data or is in Iks case er* mathematical eitrapola txws prvndr toe basis lor tor arw rale iadept atom peer renews m*> be extraordinarily hrlpfal to toe roan S. r supra amr II Precisely becaase toe data kas aol been scratmord bowever, Ibr man kas particaiar Merest m harms sens to bock fseorabtr ud wMavorable peer inws 3M CcCuO*ro% S-rVy 4 LLA 001433 1142 OCCUPATIONAL SAFET'i A HEALTH REPORTER peculation The oppoaile is equally plausiMe, especially given that OSH A allows compliance with the ETS through methods as ample as wetting floors or wearing respirators Ser W Fed Reg at 5I.0M. In its November 4 publication OSHA partially Justified Its decision to woe an ETS oo the fact that boUcc-and-com roent rulemaking often takes several year* to complete, esclading possible subseqaeot postponements of tbe effectivr date caused by coart-ordered stays pending judicial review id Fed Reg at 51.9*9 OSHA apparently would have as assess benefits in this light. We cannot do so. As noted earlier. OSHA concedes that it can complete rulemaking within one year Additionally, as Its legislative history makes clear, the ETS statute a not to be used merely as an interim rekU measure, but treated as an extraordinary power to be osed only in "limited situations" in which a grave danger exists, and then, to be "delicately exercised." Public Cittern Health Research Group I' Auchier. lot Fid si 1150 (DC Cir. 1*13) See also Taylor Dicing Sal rape r Department of Labor. 537 Fid lit, 130-21 (5th Cir 1976L Florida Peach Growers. 419 FJd at 129; Dvp Color Manufacturers' Ass n 4W F.2d at 104 o. 0a (3d Or I971i Tbe Agency cannot use i s ETS powers as a stop gap measure The would allow it to displace its clear obligations to promulgate rules after public notice and opportunity for comment in any case, not just in those in which ETS is necessary to avert grave danger See 29 t'SC 6551 bl IV A The AlA urges us to hold that OSHA most hare new tnfonnatioo before it promulgates an ETS - An "emergen cy cannot exist, it argues, when tbe Agency has known lor years (bat asbestos constitutes a serious health rah and. in fan. has bad all tbe data it uses to support its November 4 ' Thr 41A argue* that 06HAs tut cental nvscatiea aI its ETS powers are dnuaguishable from ila oasureesafsl ases oo thr buns at the rstsimcr ot erw atom-alna We de oat wholly agree Cntao- tr OSHA fcas mrd its ETS powers sueeemfaBy I* adWsei a nlua- uon that tvetnify came to hgkt 1. 1974 06HA mmi an ETS for voni chloride wuhin weeks after liar--g that srarbers' dntha vere attitbuuMr u espoeorr to that subetaure No sur ramowed the Ageurys artaoe See V Fed Reg 12.342 11974) See aisv Socirlp of Ptjtii\> fwtjlne$ Inc r OSHA. a09 F 2d 13*1 174 Cir lSTi' 'upholding *ai isle SuntUely is 1977 OSHA usacd an ETS fix 12 Rbrnene- S-CMorogropanr iDHCPi after having become loare in just a few mootfes that eapeserr IP rrto small ausewtts of the rhrmtcal caused neniily 5rr 12 Fed Reg 4' 554 1 ST7 Is 1ST) hcweirr OSHA its ETS powers to lower the asbestos PEL (rum i; ( tr io S ! n having concluded only that asbestos presented a grave danger The 1*71 actioo was w* challenged Other invnrauoew of the ETS power hare tailed > -e however ba? (ailed soiefs because thr Agenry did aot act pursuant lo eewly acquired uitormalioc. .ire .-tnir-inin Prtrvtrvn i'unikir i '-.'Hi >*;FZd43 iOJ'ilhCir 1*7*. af d rA nom Induc-i'i. f ii..'. ivj.r i .I"irn. an retriali-wm Instiimr 449 V S 447 1 00 5 Cl 1*44 43 L Ed Id toto .1**0 Ibrnreoe ETS tailed lor lart of substantial e-idenc-e T-:y<-- Peine ovl Snl; opr fo In. . /*(! . `L.'"'' 53` F 71 MV *71 i5lh Cir 1*74 .temporary ua\ granted because primo-ier? shewed liktlihood ot success or the merits and irreparable harm. Tu.-iJii TYj'b ti'rm m .4s<-, In, . Orj c.' I.419 Fid 110 II* iticganopbosphoe-j? pmnride. FTS failed lor lark of substantial evidence- pry l ol' - Vf. t... ir ftrj ' nf Ln*v.- 4*4 F Id *1 i3d Cir 197? ilvj-irer. fimnogns FT- failed lor failure lo adequate's state rrasnv action at hand, but Devertbelem failed to act oo it. Although aew Information may be a aound basis for an ETS. we decline to bold that OSHA cannot Issue an ETS to its absence As OSHA admits, tbe Agency's failure to act may be evidence that a otuition la not a true emergency, but we agree witb OSHA that failure to act does not conclusively fitahlith that a aituatioo a not an emergency. Tbe ETS iLrUite Itself, allowing tbe Secretary to promul gate an ETS in response to "graTe danger . . or . . sew hazards," precludes our imposing a "new information" re quirement on OSHA Additionally, to Impose such a require ment would imprudently circumscribe tbe Secretary's abili ty to art in response lo serious sttuatinus tf exposure to 2.0 f/cc of aabeftw fibers creates a grave danger, to bold that because OSHA d;d not act previously it cannot do so now only compounds tbe consequences of tbe Agency's failure to act OSHA kbculd of coarse, offer some explanation of its timing in promu'gir ' ; an ETS. especially when, is here, for years it him kco* n i the serious health risk tbe regulated substance poses, and has possessed, albeit in unrefined form, the mbatanmc data farming the basis (or tbe ETS `` In tbs rase OSHA says it acted v t espouse In new awareness ut tbe danger of asbestos aad t response to extrapolated data that did not become ava.'s'-i until July of 1913. four months before U promulgated ;he ETS We are ort prepared to ay that neb heightened awareness cannot justify tbe Secre tary'! action. Additionally, even ti adequately explained, an ETS must, on balance, produce a benefit tbe costs of which are not aeresvsuable Thr protection afforded to worfcera should outweigh tbe economic consequences to tbe regulated Indus try. American Petroleum fiuntutr v OSHA. 5*1 Fid 493. SK-N (5tb Cir 197lf aff'd tub worn Industrial i'mon Department v American Petroleum Institute. 4<l US *7. 10* SCt 2*44. 45 LEd.2d 1*10 (1940g Florida IVacfi Growers. 4*9 FJd at 134 ' OSHA conducted a benefits analysis pnor to promulgating tbe ETS and concluded (bat the cost of mmpiianre with tbe lower FEL is reasonable compared to total industry tales volume Further. OSHA concluded that tbe costs are fairly distributed, because tbe ntdwitritr. in which asbestos-related risks currently are greatest are tbe industries that must spend tbe most to comply with tbe lower standard.' In no tndmtry don tbe .-omptuare cum exceed 7 2 cents per dollar of sales, and m most industries, tbe coot of compliance is less than one cent per dollar 4* Fed Reg at 51.134-51. 117 and Tables IT and OSHA completed > nsk assessment in 19*I :_jt norludrO that bilum and TO* death- pe- year would oerr- a* the I * I cr PEL Af oral argument, counwl foe OSHA uid l?" v^enrv did oo< eci then beraunr it mnsidmif the data to te : rr-.r-f ' Although a tbn case the agrnrs cnexii: ed a fermai met heueii analyau. we do uot imply that the t m ,auona! Safes- aod Health Art roqams the igenry tc <h v. bri - i' pecennlgate? an ETS Indeed, a Crwr turn nor y silvanon- :na' tae agenev wowld aave ume in emdurt art in anafins i u .. I> The .4-un n-. Pcfolnrn JfulitKlr and Fi "ui'i Peif. - u casn reqmire oo'v that a reviewing whether the ageet * . i as reasonable endec the cu evenstar- es we artalyn lx c a*ed bersefif of 1-e ETS m light ot its probable ronseqveism- ' For the m maMbs the ETS remain? n rtf'- ' the average --' -er weetrr of coenpiunce o 1704 TV rpn?;njnion mdutn wi pet worter a 1971 the kighrst of art mdu?"' segmeni Tie lutnmodce aftermarket indvlrt Ju? the k?we?' per wmier ai 3251 4* Fed Reg al 51 137 TaN* 17 TV e-'enated empl.?\-e eiposore tv the automotive jfiermarket ru-ren:.`. i- lev- lhar C i f re loc the vast majontv of emplovee- It at ai 0*3 Table 1 s V aaC- s"ec f BJfaE *0 DC .iriiOS ^ eeewyyr-- p; ?Y ; LLA 001434 current report 1143 II We cannot say that the coat of compliance I* anreaaon- abie if the ETS ia fact alleviates a grave danger TV AlAdoes aot complain of the coat of compliance with the new PEL, however, as mech aa of the anticipated ripple effects that OSHA's action will have on the Mbeatoa pre dicts market The AlA argues that aaheatos toen will sutjtiUte other prodneta for irkratw of the alarm the ETS caanea throughout the tadmby In laheliH ** aitaatioo as aa emergency Indeed, anch conaldentlons are aot tnaignlVant As this coart has aotad, "It U aaMotlal that employees he protected against expoog* to highly toxic materials, bat thus ihoaid be done withoat fttvuinug the |asbestos imtetry) and the associated jobs" Florida Peach Gmoers. 4*1 Fid at 12*. The industry, however, already will have felt aay ripple effects precipiUted by OSHA's dectaratioo of an emergency, and oar holding today caaaot ando whatever harm has been done, especially in light of the fact that the ETS now is a proposed permanent standard The AlA. moreover, fails to corvine* as that the ETS serioosly Jeopardises the ashes)' try. or even that the harm doe to lost isles will ' ..gnific it. B The ETS statate requires that the Secretary tame aa ETS only after he finds sahstantial evidence indicating both that a "grave danger" rents and that an emergency standard is "necessary" to protect workers from sack danger. Than, the gravity and necessity requirements lie at the center of proper avocation of the ETS powers. No one donbts that asbestos is a gravely dangeroas product The gravity we are concerned with, however is not of the prodert itself, bet of sax months exposure to it at 11 f/cc. as compared with (is months exposure at 1.* f/cc. Oar inquiry, then, is a uarrrrw one. and requires as to evaluate both Che nature of the consequences of exposure, and also the aamber of workers likely to suffer those neucqsrnrii According to the Secretary, the rowseqeenrrt of espesare to sgaficsst womb of asbestos arc likely to be fatal. Victims of ling cancer, mesothelioma, and gaatrointeithul cancer have poor survrva) rates. Additionally, workers re posed to cgiufinnt amoonts of ishrstos run a rrik of developing ntvstisn. s serious condition caused by the arcumalatiou of sshntns fibers in the hogs. The symptoms of nhestosH rant* from shortness of breath in mild cates to respiratory faihw* and death in tenoas cases. Cbnaael for the petitionen at oral argument agreed that aMeetne at some level of tiposare. will cause riarry and tihi Until aad. indeed, the sainkrr of asbestos-related personal injary cases on the federal docket almost makes the fact one appropriate far judicial aouce Thus. we do not have a Mtaation m which the symptoms of repcaare are "easily curable aod geetiag " See pmrroily Florida Peach Grov es' M9 F 2d at 132 Nor do we have a sitastioa a whivJ the danger of developing a serious *--* n spechlauve. See O'-or'ailii Dry Color Manw/arturrrs Auociafio* 4*9 V Id at IK OKHA claims that by permanently lowering the present 1 o l rr PEL to 4 S f ce it wi'J save suty-foor bves per one ***** ,arll awed that The matwe of the aclioo rtseli. ant the eromoerrm* esfoemneni program wiU mdowbtrdly boos the mrr" u enp!\ with all peoteetnc provisions of the asbestos au-e *4 Fed Reg at 11MI Exactly what OSHA wteaded by ** srmit s mrlrar from, the return of the pabbeatjoe Certauv H ,tw ***** le nr its ETS powers expressly to alarm the wdwstry v Uieg-Limair sod would rwot agaiasi tie Agency ia judicial worken over a working lifetime of forty-five yean. See 4S Fed Reg. at SI,140. Over lix months, this works out to eighty Uves out of an estimated worker popula tion of STS,*** " Fed. Reg at S1.094-S1.09S As the Supreme Court has noted, the determination of what consu lates a risk worthy of Agency actioo lx a policy consider atlee that belongs, in the fa-st Instance to the Agency tadurinal Work ere Union 44* U3 it 454. B 41; 104 S.C1 at 2*71; 45 LExlid at--------- "Some risks are plainly acceptab* and oihen are plainly unacceptable " Id at 4SS, 1*0 S.Ct at *r*. IS LEd Jd alThe Secretary determined that eighty lives at risk ts a grave danger We are not prepared to say it b not The Agency need not support Its coodwsioo "with any thing approaching scientific certainty." Id at 454, 109 S CI t 1*71. 45 UEdld at _------Additionally, so long ax the Agency MippurU ttx conclusion with "a body of reputable scientific thought." it may "owe couserrative asnsoptious" to mjJport that cooclution. Id The Agency also has a prerog ative to choose between cocJbcting evidence of equivalent quality, and a coort will rounder a fiading c insistent with oue authority or another to be supported by substantial evidence. American Petroleum Institute, Stl F id at 507 The Secretary oiust. however preseot a sute'neot of the remoua for Us action I* U5.C f*S5(e). It is axiomatic that the i tainas the Agency gives at the time it acts form the actnal bums for the Agency's action. See. e g. Industrial Union. AFL-CIO v. American Petroleum institute. 100 S-Cl 1*44. US* n.31 (1M) (plarahty/ As we have often held, the validity of an agency! dilirmin lmn mast be judged an the basis of the agen cy's stated riawaw for making that determination. See SBC v. Cbmery Carp.. SI* VS. *0. *S SCt 4S4. 4*2, t7 i sea ggg riAR arhninstrxtire order psannt be upheld asdem the ground* spow which the agency acted is Its powers were thoue spaa which rts action can he iastiinriT~Y FPC v. Texaco Inc., 417* U S. M0. 3*7. *4 SL MIS. 1X34. 41 UEiUd 141: FTC t Sperry g ffutcUmou Co., 405 U-S. 233. *49. *1 SCI 89*. 9*7. 31 LEd.2d 17* See/l1*" Citizens to Preserve Overton Park r Voipe, 91 S.CL *14. **S (1171). OSHA has made the number of deaths avoided -- at least S* -- the husas for its rulemaking. Yet it Is apparent from as esmafnaUnn of the record, that the actnal --nher of lives saved U uncertain, and is likely to be substantially less than M - Bath the parity of the risk as defined by OSHA and the necnaity of m ETS to protect agaimi it are therefore Additionally. Although nsk assessment analysis n an ex tremely useful look especially when used to project lifetime comequenres of exposure, the results of its application to a small sbre of time are speculative because the under hv^ database projects only long-term nshs Epidemiologists geo eraUy study only the consequences of long-term exposure to asbestos Indeed. OSHA concedes some unreliabih'y and sweertainty to be inherent in risk assessment generally Applying the nsk assessment process to a period of six months, one-ninetieth of OSHA s estimated woi ting lifetime, only magnifies those inherent uncertainties In the November I pwbtieabou. OSHA tlatnl that 119 lives wi'l fee raved over <u mouths The Agency, however concedes that this tfwrr B wdated becaasr it includes those lives that OSHA coM lave by ewforcvW ts curer.t II I rr standard Srr rup'u nesr t end arcowipanyia* text L See supra vote I S**ry i "MV Swione LLA 001435 1144 OCCUPATIONAL SAFETY A HEALTH REPORTER By holding as we do la tUs case. however, we do not intimate at all th*t rtak-amenment analytes if inappropri ate wMaici on which to bane any standard. temporary or permanent tee aay bo more than that evidence baaed on ilte iMiaifiiini aaalyth la precisely the type of data that nay be more uncritically accepted after pablic scrutiny, through uodce-aad-comment rulemaking. tapecially when the coaduriooa it imriti are controverteal or subject to diterest interpretation* C. Even amuming that OSHA'i projected benefit* would accree from the ETS, however, we bold that OSHA's action meal fail for another ream. The Afency ha* not proved that the ETS. OSHA'i mote dramatic weapon to it* enforce ment arsenal. i* "Decenary" to achieve the projected brnaAti A* OSHA concede*, the probable practical effect of the ETS. which allows compliance through "nny feasible comta rnation of engineering control*, wort practice*, and perrnal protective equipment nod devices." wooM be that employers wonld require employees to wear retpiraL-rs. Current regulatioaa already require employers to outfit workers with rapirators that can provide ap to one hundred-fold protec tion. 2> C PJt. Hll lddKcXWliiL (dX2Xii). and (dXJXui) Yet OSHA did not include to Its calculations the effect of enforcing the current standard by requiring employers in the drywall constructtoo and demolition industry to famish these nspirators. Counsel (or OSHA informed the court at oral argument that the Secretary considers the regulation require* construction and deraoiition workers to wear res pirators to be waceforcnhlt aheent artsal monitoring to dew that audarnt uterino particles are so far above the pemunbie limit tkat respirators are necemary to bring the rmplnjrrrf' i i|iinari withte the PEL of 2.* f/cc Pear of 1 soceernfal jadieial challenge to enforcement of OSHA's per- manrat standard ** respirator ate hardly jateiftes retort to the mote Aetnat*c weapon in OSHA's enforcement arsenal ` Thu*. lacking a sMtefactory esptanation why the n it C-FJl H>*>* iteltfXa/aad on) prandr lnnphii added! (U) Powered otr pmnjyne rrtpsracors A fall (srepeere powered air parifyiag leapwator. ar a powered aw pacifying npniw.wi mpmlwinrrMnpanpo)* o1 tins srroen. teaD te ui (a rodaev ite caaeotrauous oi awtarar aotesMi Hen tte Tuipuinr below tte iqanf bawls pitnted a pnpqb |b) te tbs sertwa. wtew ite ceibng iter* we i lajn--ity riperted a exceed It unws bwl *M ISO lanes tboor laaa* |a> Typr ~C~ supplied-ar- mpraton minumi Jtow oT prexrwrr-demand rto*j A type "C eoatiaaouB tew or preswdewuwd. suopted-air rcsywjtac Hill te ad to redan (be i wn oh iliiai d airborne aibertm Hers a tte resptrator brio* (be upiwat bmrti presented a parapapb Ibi of the mcuob wheu tte enkng or tV l bia tune weighted average aw borac i tm i anninan ot astesta Hers are reasoaaUr expected to exceed ISO tows Itear hints -lalrrl 1 i w>nr 1 Safety aed Health Renre Consnssion *rfmew; do not support Ite Secretary's uerprrtauoc See *.r<i cowda Aluminum Co OSH Dee iCTH. 'IS JO* i l*ei i li 1 ill 1001 appbes to all workers, tot merely tbnsr tspoard to moraln turns of --Hen greater than tte allowable L-nrt TV regeUiwreibranrhres appear 10 aetborue Type C respirators a! :# times ibe cwreot PEL See niyra vur U ETS is a aeceaury meaas to achieve the added saving obtainable by application of the current regulations, we mute assume that OSHA'i claimed benefit should be dis counted by sooe additional, wscertain amotmt OSHA alao attempt* to justify the ETS by mphasiring that tte ETS does more to protect worker1* health than limply lowering the axberio* fiber PEL- An ETS. however. Is not accessary to achieve these ancillary benefits. The ETS requires employer* to educate employee* concerning the risk* of asbetea* exposure and the prope* steps necessary to miaimltr exposure. While adecatloo is a worthy objective, OSHA could achieve It without Invoking its extraordinary ETS power. Indeed, current regulations provide for worker training and education M. at flttg.21. Similarly, OSHA supports Its action by arguing that it plan* to Increase enforcement efforts, with the aim of encouraging greater compliance with the aew stardard than it estimates current ly exists coder the present standard. Increasing enforce ment Is another worthy objective; but It likewise cannot Juteify use of the ETS power, especially when, as in this rase, much of the claimed benefit cowM te obtained simply oy enforcing the current standard. In sum. although asbestos doubtlew may present a grave danger to workers, the record coaaidced as a whole does not substantially rappuii OSHA'a conclusion that an ETS lowering worker PEL from S.fi f/cc te IS f/cc is necessary to alleviate a grave risk of worker deaths daring Its aixmonth term. This court in ruling on a challenge to an ETS. has "rejected) any saggestioo that death* mute occur before health and safety standards may He adopted." Florida Peorb Growers AssortsDow. supra nt 132. and we make bo such ~|r`liM here. Additionally, ww da not deride whether tte record would support a concheeten that mot threat to embers' health of a megnltarte lahteitelelly less than M deaths during tte ETS ptefed Lonetltteie a move danger neccstetating an ETS ol II f/cc. Gravity of duget is a policy derision committed to OSHA. not to the courts. We hoU only that as ETS that lacks mpport in the record for tte basis OSHA has articulated mate te declared invalid V. OSHA may. of course, couunae its plan to mcreaec aforcemeot of the current PEL If rtingrr is immssrnt. it should complete notice-aad-comment rulemaking as quickly as pnwiblf to determine if a new standard louir'aig tte PEL to IS f rc. or ms lower, a appropriate Or finding how that substantial evidtace doe not exist to mpport a Si month ETS should not te construed as a prediction that a tower asbestos PEL would fail wader judicial Kruriny if OSHA promulgate it pursuit to proper aotice-aad-cotnment rulemaking procedure We determine tte Emergency Temporary Standard to be invalid bee*me the record, considered as a whole, doe not indicate that tbe risk the ETS seeks to eliminate b "grave." as OSKA itself has defined it or that tbe ETS ts necessary as those terms are used in tbe ETS statute ENFORCEMENT OF EMERGENCY' TEMPORARY STANDARD STA YED j. |^_$4 &7 TKt 9UP.AU C* TA f .liA'SS 1-.C <1!-,'^:' DC 20C!' LLA 001436