Color Pigments Mfrs. Ass'n, Inc. v. Occupational Safety & Health Admin.

• Decision Date: 22 March 1994
• Docket Number: No. 92-3057,92-3057
• Citation: 16 F.3d 1157
• Parties: 24 Envtl. L. Rep. 20,736, 16 O.S.H. Cas.(BNA) 1665, 1994 O.S.H.D. (CCH) P 30,382 COLOR PIGMENTS MANUFACTURERS ASSOCIATION, INC., (f/k/a Dry Color Manufacturers' Association), Petitioner, The Cadmium Council, Inc., Intervenor, v. OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, Robert Reich, U.S. Secretary of Labor, Respondents.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1157

16 F.3d 1157

24 Envtl. L. Rep. 20,736, 16 O.S.H. Cas.(BNA) 1665,

1994 O.S.H.D. (CCH) P 30,382

COLOR PIGMENTS MANUFACTURERS ASSOCIATION, INC., (f/k/a Dry

Color Manufacturers' Association), Petitioner, The Cadmium Council, Inc., Intervenor, v. OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, Robert Reich, U.S. Secretary of Labor, Respondents.

No. 92-3057.

United States Court of Appeals, Eleventh Circuit.

March 22, 1994.

Harold F. Fitzpatrick, Fitzpatrick & Israels, Secaucus, NJ, for Color Pigments Mfrs. Assoc.

Edwin H. Seeger, Jane Luxton and J. William Doolittle, Prather, Seeger, Doolittle & Farmer, Washington, DC for Cadmium Council, Inc.

Barbara Werthmann and Charles F. James, Office of the Sol. of Labor, Dept. of Labor, Washington, DC for Dept. of Labor.

Petition for Review of an Order of the Occupational Safety & Health Administration.

Before BIRCH, Circuit Judge, RONEY ^* and CLARK, Senior Circuit Judges.

BIRCH, Circuit Judge:

This case arises from passage by the Occupational Safety and Health Administration (OSHA) of a standard governing occupational exposure to cadmium, promulgated at 57 Fed.Reg. 42101 (Sept. 14, 1992) ("Final Rule"). We find that OSHA presented substantial evidence to justify including cadmium pigments in this standard, which calls for a permissible exposure limit (PEL) of 5 micrograms per cubic meter (5 Sg/m ³), measured as an eight hour time weighted average. We find, however, that OSHA failed to present substantial evidence supporting its conclusion that the PEL was technologically and economically feasible for the dry color formulator industry absent a Separate Engineering Control Air Limit (SECAL). We therefore REVERSE OSHA's findings on this issue and REMAND for a determination of the technological and economic feasibility of the standard as it applies specifically to the dry color formulator industry, and a finding as to the need for a SECAL in that industry.

I. BACKGROUND

Cadmium pigments are particular forms of cadmium compounds, usually cadmium sulfide or cadmium selenium. Cadmium pigments are vivid coloring agents in the yellow to red range which have several unique properties making them particularly useful in a variety of areas, including ceramics, aerospace, and plastics. Cadmium pigment manufacturers create these pigments in the form of a powder which is sold to, among others, dry color formulators. Dry color formulators mix the powders in a matrix, creating specific color combinations, generally made to order, and package them in a form usable by their customers, often in pellet shape. The cadmium exposure after the pigments are in the pellet or other encapsulated form is minimal. However, dry color formulators experience exposure during the mixing and encapsulating processes.

On September 14, 1992, OSHA issued a standard for exposure to cadmium applicable to a broad range of industries and a large number of compounds which contain cadmium. Pursuant to 29 U.S.C. Sec. 655(f), this standard was challenged in the United States Court of Appeals for the Fourth Circuit. On October 19, 1992, in accordance with an order of the Judicial Panel on Multidistrict Litigation issued pursuant to 28 U.S.C. Sec. 2112(a)(3), the petition was transferred to this court.

The principal party before us in this multidistrict litigation, the Color Pigments Manufacturers Association, Inc. (CPMA), challenges the standard on two grounds. First, CPMA asserts that the inclusion of cadmium pigments in the standard applicable to all other cadmium compounds is not supported by substantial evidence, as the pigments have not been shown to be as toxic or carcinogenic as other, more soluble, cadmium compounds. Second, CPMA takes issue with OSHA's determination that the dry color formulator industry would be technologically and economically capable of meeting the PEL without the need for a SECAL, which has been afforded to other cadmium users. We examine each argument in turn.

II. DISCUSSION

A. Standard of Review

In this case our task is the review of an administrative agency's decision-making process and conclusions. As such, it requires that we not only analyze the law used by OSHA, but also directly review the sufficiency of the evidence presented and the procedure used in promulgating the standard. In addressing the challenge to the Final Rule we must determine the applicable standard of review, which dictates the degree of deference we will give to the conclusions of OSHA in creating the PEL and determining its feasibility, and then apply that standard of review.

As it relates to judicial review of agency decisions, the Occupational Safety and Health Act provides: "The determinations of the Secretary [of Labor] shall be conclusive if supported by substantial evidence in the record considered as a whole." 29 U.S.C. Sec. 655(f). The Supreme Court has stated that "[i]n statutes with provisions virtually identical to Sec. 6(f) of the [Occupational Safety and Health] Act, we have defined substantial evidence as 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 522, 101 S.Ct. 2478, 2497, 69 L.Ed.2d 185 (1981) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951)). This language does not mean that OSHA must prove that there is but one possible conclusion. The existence of a viable alternative does not preclude the acceptance of an agency determination as supported by substantial evidence. All that need be shown is that OSHA's determination is supported by evidence presented to or produced by it and does not rest on faulty assumptions or factual foundations.

Nevertheless, while the standard is not so stringent as a preponderance of the evidence test, it does require us to " '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.' " AFL-CIO v. OSHA, 965 F.2d 962, 970 (11th Cir.1992) (quoting Asbestos Info. Ass'n v. OSHA, 727 F.2d 415, 421 (5th Cir.1984)). We must look at the OSHA standard and the evidence supporting it, and we will " 'uphold the agency's "choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." ' " Id. (quoting AFL-CIO v. Marshall, 617 F.2d 636, 649 n. 44 (D.C.Cir.1979) (quoting Universal Camera Corp. v. NLRB, 340 U.S. at 488, 71 S.Ct. at 464-65)). Hence, we examine the process and evidence used by OSHA in determining the similarity of cadmium pigments to other cadmium compounds, and the technological and economic feasibility of the standard, with an eye toward discerning facts sufficient to support its eventual decision.

B. The Dry Color Formulator Industry

This case is brought by CPMA on behalf of dry color formulators in the United States. CPMA nominally represents the pigment manufacturers. However, these manufacturers have dry color formulators as the primary purchasers of their pigments. CPMA argues that these dry color formulators are too small and unorganized to raise a challenge themselves. ¹

The dry color formulator industry combines raw pigments in a matrix of other materials to form color combinations for specific customers, primarily on a made to order basis. Dry color formulators purchase the pigments from pigment manufacturers in dry bulk form and blend them to form the desired colors. In the process of such blending the workers in dry color formulator plants are exposed to cadmium pigment dust through inhalation.

C. Inclusion of Cadmium Pigments in the Standard

OSHA created a standard PEL of 5 Sg/m ³ applicable to all cadmium compounds, including cadmium pigments. CPMA argues that the evidence is insufficient to support the inclusion of cadmium pigments in the PEL, as they are less soluble, and therefore less toxic and carcinogenic, than other forms of cadmium. We disagree. As mentioned above, the standard of review here directs us to determine whether OSHA's decision has a rational basis, not whether we would have reached a different decision de novo. The existence of a viable alternative viewpoint is not enough to invalidate OSHA's decision if that decision is itself reasonable and supported by evidence in the record.

In this case we believe that OSHA has presented evidence sufficient to justify inclusion of cadmium pigments in the PEL. OSHA appeared to rely originally on the Fraunhofer study, which showed a dose-response relationship between cadmium pigment exposure and cancer. However, that study was later called into question when it was shown that the cadmium pigment employed, cadmium sulfide, was exposed to light and water simultaneously, thereby converting some or all of the cadmium sulfide to a far more soluble compound, cadmium sulfate. Despite this doubt as to the reliability of the Fraunhofer study, OSHA asserted that factors other than the solubility of a cadmium compound could have an effect on cancer and disease rates. For example, OSHA argues that the amount of time the cadmium spends in the body, which increases as the solubility decreases (chronic, as opposed to acute, exposure), is an important factor.

We are not in a position to reach an authoritative decision as to discrete scientific arguments, and the Occupational Safety and Health Act does not require us to do so. Rather, we must only decide whether OSHA acted with a rational basis and on substantial evidence in reaching its determination. No definitive study confirming or refuting the hypothesis that cadmium pigments are equally as toxic and carcinogenic as other cadmium compounds has been presented to us. Given the absence of definiteness on the issue, the volume of evidence that points at least implicitly to the dangers of cadmium pigments, and the serious potential...