Asbestos Information Association/North America v. Reich
| Citation | 117 F.3d 891 |
| Decision Date | 24 July 1997 |
| Docket Number | No. 94-41097,94-41097 |
| Parties | 17 O.S.H. Cas. (BNA) 2089, 1997 O.S.H.D. (CCH) P 31,376 ASBESTOS INFORMATION ASSOCIATION/NORTH AMERICA, Petitioner, v. Robert B. REICH, Secretary of Labor, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Timothy S. Hardy, Kirkland & Ellis, Washington, DC, for Petitioner.
Bruce Foster Justh, Barbara Ursula Werthmann, J. Davitt McAteer, U.S. Department of Labor, Office of the Solicitor, Washington, DC, for Respondent.
Elihu Inselbuch Leifer, Nora H. Leyland, Victoria Louise Bor, Sherman, Dunn, Cohen, Leifer & Yellig, Washington, DC, for Building and Construction Trades Department, AFL-CIO Intervenor.
On Petition for Review of a Final Rule Promulgated by the Occupational Safety and Health Administration.
Before WIENER and PARKER, Circuit Judges, and LITTLE, District Judge. *
Petitioner Asbestos Information Association/North America ("AIA/NA") petitioned this court for review of a final rule promulgated by the Occupational Safety and Health Administration ("OSHA" or "the Agency"). We grant review and vacate the Agency's shipyard and construction standards insofar as they regulate asphalt roof coatings and sealants which contain asbestos.
In 1986, OSHA issued a rule regulating occupational exposure to asbestos. The D.C. Circuit upheld part of the rule and remanded other parts to OSHA for further action. Building & Const. Trades Dept., AFL-CIO v. Brock, 838 F.2d 1258 (D.C.Cir.1988). In 1994, pursuant to the remand and after notice-and-comment, OSHA published a final rule. 59 Fed.Reg. 40964 (August 10, 1994). After additional challenges, OSHA made modifications to the final rule. 60 Fed.Reg. 50411 (Sept. 29, 1995).
Once again, challenges were filed. This case presents the last petition that remains unsettled: AIA/NA's challenge to the 1994 Rule.
AIA/NA represents asbestos miners and manufacturers of asbestos-containing products. Among the few remaining asbestos products manufactured in the United States are roofing sealants and coatings which are asphalt mixtures containing asbestos fibers. During the manufacturing process solid asphalt is liquefied by dissolving it in paint thinner, resulting in a thin black syrup. Enough chrysotile or powdered asbestos is mixed into the syrup to make a stiff paste that can be used, for example, to seal the crack around a chimney. When the solvent evaporates, the asphalt becomes a tough leather-like film that shuts out water. Roof coatings are manufactured in the same way, except that they have a thinner consistency so that they can be applied with a brush. AIA/NA takes the position that the manufacturing process encapsulates the fibers in asphalt so that the asbestos cannot become airborne and workers cannot inhale or swallow the fibers inadvertently. There is no evidence in the record that these products
have ever been found to cause any worker exposure to asbestos. AIA/NA therefore objects to OSHA's regulations requiring warning labels on the products, 1 notification to building owners when the products are installed, 2 and work practice requirements that increase the cost of removal. 3
The party seeking to invoke federal jurisdiction has the burden of establishing standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992). The Secretary challenges AIA/NA's standing alleging (1) AIA/NA can establish no injury in fact--that is, the challenged regulations do not impose compliance duties on AIA members or induce users to shy away from asbestos containing products; and (2) the interest AIA/NA asserts is not within the "zone of interest" the OSH Act seeks to protect.
The Secretary's first contention is meritless. AIA/NA challenges the regulation imposing hazard communication requirements directly on AIA/NA members. Further, AIA/NA relies on OSHA's own economic analysis which recognized that even when asbestos-based products are cheaper than non-asbestos based products, demand is shifting away from asbestos-based products due to market response to liability and regulatory concerns. 59 Fed.Reg. 40964, 41051, col. 1 (1994). That is sufficient to sustain AIA's burden of establishing that the challenged regulations impair product marketability. We find that AIA/NA has met its burden of establishing that it has sustained an injury in fact.
We must next determine whether the interest sought to be protected by the complainant is "within the zone of interests to be protected or regulated by the statute[.]" Ass'n of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970). There is a presumption in favor of judicial review of agency action, Block v. Community Nutrition Institute, 467 U.S. 340, 348, 104 S.Ct. 2450, 2455, 81 L.Ed.2d 270 (1984), but at bottom the reviewability question turns on congressional intent. Clarke v. Securities Industry Ass'n, 479 U.S. 388, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987). The OSH Act provides for judicial review by "any person who may be adversely affected by a standard." 29 U.S.C. § 655(f) (1996). Under the plain language of § 655(f), AIA/NA has standing as a "person who may be adversely affected."
The burden is on OSHA to show, on the basis of substantial evidence, the need for the challenged regulation. Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 653, 100 S.Ct. 2844, 2869-70, 65 L.Ed.2d 1010 (1980). AIA/NA contends that OSHA's regulations regarding work practice, training, and hazard communication requirements on roofing sealants that contain asbestos are not supported by substantial evidence. AIA/NA states,...
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