Document x1zBpMbDjM98QRwwY1x9zZ1MG

MoUn: TMe opinion Is aubjert Is farssaS revision fefore pEMtesSJon In Ilia federal Reporter or U.S.App.D.C. Reports. ilssra ara reipseoteii to notify the Clerfe of assy formal error in order that sonreetiona snap hs masks before the bound valutas so to gsrssj. luifel %Mm sirt of Jypftfttlji MB THU aiBTSICT 0? COLUMBIA CEBOTIT No. 864850 Building and Construction Trades Department, AFL-C10, PETITIONEE v. William E. Brock, Secretary or Labor, respondent Asbestos Institute, Minnesota Mining and Manufacturing, intervenorb No. 86-1360 American Federation or Labor Am Comgrss or Industrial Organizations, petitioned v. United States Department or Labor, ei si, ,, respondents Asbestos Institute, Minnesota Mining and Manufacturing, intesvbnqrs Hills f main must hi* fllmi within 14 days after entry of JmlRTnont. The court look a with (iiafuvor upon motions to hie billa of coeta out ct time. HWBUI0001133 1 Weigel, Senior District Judge, dissenting in part: I respectfully dissent only from that portion of the opinion which fails to call for medical surveillance for employees in the construction industry to the same extent required for those in general industry. The record makes it dear that even if exposure to asbestos for 80 days or less in a single year is not dangerous to health, there is such danger from exposure to large quantities over an ex tended period of years. Since nothing in the record suggests that the relevant standard for construction workers should be different from those in general in dustry, I would require OSHA to reconsider its decision on this matter. HWBUI0001134 8 No. 88-1410 Asbestos Information Association/North America, ETC., et Rl., PETITIONERS Occupational Safoti and Health Administration, et aL, respondents Asbestos Institute, Buildino and Construction Trades Department, Minnesota Mining and Manufacturing, intervenors No. 88-1411 Asbestos Information Association/North America etc., et al,, petitioners v. Occupational Safety and Health Administration, et r!., respondents Asbestos Institute, Building and Construction Trams Department, Minnesota Mining and Manufacturing, intervenors Petitions for Review of Orders of the Occupational Safety and Health Administration Argued April 24, 1987 Decided February 2, 1988 3 George H. Cohen, with whom Jeremiah A. Collins, Cynthia L. Estlund and Laurence Gold were on the brief for American Federation of Labor and Congress of In dustrial Organizations, petitioners in Noe. 86-1869 and 86-1360. Elihu /. heifer for Building and Construction Trades Department, AFL-CIO, petitioner in No. 86-1369 and in tervener in Noe. 86-1360, 86-1410 and 86-1411. Edward W. Warren, with whom Arthur F. Sampson, III and Timothy S. Hardy were on the brief for Asbestos Information Association/North America, petitioner in Nos. 86-1410 and 86-1411, and intervener in Nob. 861359 and 86-1360 and Asbestos Institute, intervenor in Nos. 86-1410 and 86-1411. Robert E. Holden and Jamee A. Brown also entered appearances. Andrea C. Caeeon, Assistant Counsel for Appellate Litigation, Department of Labor, with whom Cynthia L. Altwood, Associate Solicitor for Occupational Safety and Health, Department of Labor, and Joseph M. Woodward, Counsel for Appellate Litigation, Department of Labor, were on the brief for respondent. Peter G. Nash entered an appearance for intervenor Minnesota Mining and Manufacturing Company. Before: Buckley and Williams, Circuit Judges, Stanley A. Weigel*, Senior District Judge, United States District Court for the Northern District of Cali fornia. Opinion for the Court filed by Circuit Judge Williams. Opinion dissenting in part filed by Senior District Judge Weiqb* Williams, Circuit Judge. In July 1986 the Occupa tional Health and Safety Administration of the Depart- * Sitting by designation pursuant to 28 U.S.C. 5 294(d). HWBUI0001135 4 ment of Labor ("OSHA" or the "Secretary") issued re vised standards governing workers' exposure.to asbestos, tremolite, anthophyllite aid actinolite (together referred to simply as "asbestos") pursuant to its authority under 8 6(f) of the Occupational Safety and Health Act of 1970 (the "Act"), 29 U.S.C. 1666(f) (1982). 61 Fed. Reg. 22,612 et teg. (1986), codified at 29 C.F.R. 11910.1001 (1987) (general industry standards) and 29 C.F.R. 11926.68 (1987) (construction industry stand ards). In these consolidated appeals, the Asbestos Information Association/North America and other petitioners repre senting industry (collectively referred to as the "AIA") attack the Secretary's findings that asbestos under the prior permissible exposure level ("PEL") caused signifi cant risk, question the technological feasibility of the new PEL, challenge the rule against the spraying of asbestoscontaining product*, and assort that the record does not support OSHA's decision not to require smoking-related programs and controls. Two unions, the American Fed eration of Labor and Congress of Industrial Organiza tions ("AFL-CIO") and the Building and Construction Trades Department, AFL-CIO ("BCTD"), maintain that a lower PEL ia technologically feasible for most industry subgroups, and argue that a short term exposure limit ("STEL") is feasible and would further reduce health risks. BCTD further claims that the Secretary acted un lawfully in refusing to adopt their recommendations re lating to many subsidiary aspects of the rule, including "action levels," compliance methods, monitoring, report ing, warnings, medical surveillance, questionnaires, rectods, hygiene, and respirator use. We uphold the Secretary's findings concerning signifi cant risk and the feasibility of the new PEL, and find many of BCTD's challenges to details within the various provisions to be without merit. We cannot, however, find substantial evidence supporting several of the agency's 6 conclusions: its categorical ban on the spraying of as bestos-containing products and its decisions not to adopt a lower PEL for certain major industrial subgroups, a STEL, smoking-related regulations, and some of BCTD's suggested safety measures. We therefore remand the case to the agency for reconsideration of these issues. 1. Background Asbestos is a generic term applied to a number of naturally occurring hydrated, fibrous, silicate minerals. Final Regulatory Impact and Regulatory Flexibility Analysis of the Revised Asbestos Standard (OSHA Office of Regulatory Analysis, June 11, 1986) ("Impact Analy sis"), Joint Appendix ("J.A.") at 1541, 1642. It is characterized by flexibility, high-tensile strength, and re sistance to heat and other destructive conditions. Id. As bestos is classified into different grades by fiber length and resilience. Id. at 1643. The longest and strongest fibers are generally used to make textiles, electrical in sulation, and pharmaceutical and beverage filters. Id. Medium length fibers are used in the production of as bestos cement (A/C) pipe, A/C sheet, clutch facings, brake linings, asbestos paper, packings, gaskets and pipe coverings. Id. The shorter fibers are used primarily as reinforcers in plastics, floor tiles, coatings and com pounds, special papers and roofing felts. Id. Unfortunately, asbestos creates very serious health hazards. During the production of asbestos products, and in their later handling and use, tiny asbestos fibers are released into the air. Impact Analytic, J.A. at 1662. They are also released when old asbestos-based insulation is removed or disturbed in the demolition or repair of buildings and ships. Id. at 1662, 1665, 1667. When in haled, the fibers settle in the lungs and often travel to other organa. Inhalation of the fibers causes, or is at least causally related to. a number of serious and often fatal diseases. HWBUI0001136 6 Time include lung cancer, asbestosm (a chronic and dis abling lung disease), mesothelioma (cancer of the lining of the chest cavity or abdomen), and gastrointestinal cancer. 61 Fed. Reg. at 22,616/3. It is also associated with an increased risk of cancer of the esophagus, stom ach, colon, kidneys, larynx, pharynx, and buccal cavity. Id. at 22,618/1. In the preamble to the standards here at issue, the Secretary emphasized that "OSHA is aware of no instance in which exposure to a toxic substance has more clearly demonstrated detrimental health effects on humans than has asbestos exposure." Id. at 22,616/8, In June 1972 OSHA issued a standard which estab lished an immediate PEL of 6 fibers per cubic centi meter (f/cc) and a ceiling of 10 f/cc. (A cubic centi meter is one-millionth the size of a cubic meter. Thus 6. f/cc means 6,000,000 fibers per cubic meter. The convention appears to be to express the limit in f/cc, even though this conjures up a far less vivid image than does the measurement in fibers per meter.) The rule also provided for reduction of the PEL to 2 f/cc as of July 1976. We substantially upheld the standard in Indus trial Union. Department, AFL-CIO v. Hodgson, 499 F.2d 467 (D.C. Cir. 1974). This initial standard was based primarily on evidence of a causal relationship between asbestos inhalation and ashestoeis. See 61 Fed. Reg. at 22,614/2. In 1976, based on new evidence of the carcinogenic properties of asbestos and advances in the technology of monitoring and protection, OSHA proposed a new rule that would reduce the PEL to 0.6 f/cc and the ceiling limit to 6 f/cc. 40 Fed. Reg. 47,662 (1976). The pro posal was based on the premise that if (as the agency believed) there was no level of asbestos in the workplace that would be absolutely safe, it was authorized and re quired to set a PEL as low as was economically and tech nologically feasible. 51 Fed. Keg. at 22,614/2. The Su 7 preme Court rejected this concept of absolute safety in Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 639-62 (1980) ("Ben zene") , in favor of the view that the Secretary may prom ulgate standards only "where a significant risk of harm exists." Id. at 662. The 1976 proposal seems to have died. In April 1984, acting in part in response to recom mendations of the National Institute for Occupations) Safety and Health (NIOSH), ass NIOSH, Revised Rec ommended Asbestos Standard (Dee. 1976), J.A. at 119, and a NIOSH/OSHA task force, 61 Fed. Reg. at 22,614/ 3, OSHA issued a notice of proposed rulemaking suggest ing adoption of either a 0.6 f/cc or a 0.2 f/ec PEL, 49 Fed. Reg. 14,116/2 (1984), and raising the question of whether a 0.1 f/cc PEL might be feasible. Id. at 14,117/1. OSHA held public hearings and received written sub missions before and after the hearings. The process gen erated a record with over 340 exhibits and approximately 55,000 pages. As a result of its analysis, OSHA made a finding of a "significant ride" at the then-prevailing standard of 2 f/cc, id. at 22,647/3, a finding that is a prerequisite to more stringent regulation under the plu rality opinion in Benzene, 448 U.S. at 614-16. See also American Textile Mfre. Inet. v. Donovan, 462 U.S. 490, 505-06 n.25 (1981) ("Cotton Duet") (majority opinion seeming to approve significant-risk criterion). It esti mated that at the PEL of 2 f/cc asbestos use generated a lifetime excess risk per 1000 workers ef 64 excess deaths from asbestos-related cancers, aid an excess in cidence of 50 cases of ashestoeis. 61 Fed. Reg. st 22,644/ 3. Although it found that reducing the PEL to 6.2 f/ee would reduce the risk of cancer and the risk of asbestoeia tenfold, id-at 22,644, Table 6, it concluded that the risks remaining at 0.2 f/cc were still significant Id. st 22,648/1. i The revised standards specify that the new 0.2 PEL is to be achieved primarily through engineering and work HWBUI0001137 lla. Wi JSi J* * I'ilJ's'stfB .s" a 5 3-! iiH?fiuyi|ii 1 |S3l5H5 *- *2 u 1 s. 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