Am. Iron & Steel Institute v. OSHA

• Decision Date: 03 August 1999
• Docket Number: I,Nos. 98-6146,AFL-CIO-CL,98-6334,s. 98-6146
• Citation: 182 F.3d 1261
• Parties: (11th Cir. 1999) AMERICAN IRON AND STEEL INSTITUTE, for itself and on behalf of its members, Petitioners, v. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION; UNITED STATES DEPARTMENT OF LABOR, Respondents, UNITED STEELWORKERS OF AMERICA,ntervenor. AMERICAN COLLEGE OF OCCUPATIONAL AND ENVIRONMENTAL MEDICINE, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION; et al. Respondents, AMERICAN ASSOCIATION OF OCCUPATIONAL HEALTH NURSES; AMERICAN NURSES ASSOCIATION, Intervenors
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1261

182 F.3d 1261 (11th Cir. 1999)

AMERICAN IRON AND STEEL INSTITUTE, for itself and on behalf of its members Petitioners, v. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION; UNITED STATES DEPARTMENT OF LABOR, Respondents, UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, Intervenor.

AMERICAN COLLEGE OF OCCUPATIONAL AND ENVIRONMENTAL MEDICINE, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION; et al. Respondents, AMERICAN ASSOCIATION OF OCCUPATIONAL HEALTH NURSES; AMERICAN NURSES ASSOCIATION, Intervenors.

Nos. 98-6146, 98-6334.

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

August 3, 1999

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Petitions for Review of Final Rulemaking by the Occupational Safety and Health Administration Agency Nos. H-048, H-049

Before ANDERSON, Chief Judge, BLACK, Circuit Judge, and FORRESTER^*, District Judge.

ANDERSON, Chief Judge:

These consolidated cases seek judicial review of the Occupational Safety and Health Administration's ("OSHA") new standard for respiratory protection in the workplace. The separate challenges are brought by the American Iron and Steel Institute ("Industry") and the American College of Occupational and Environmental Medicine ("Doctors") and relate to different aspects of the new standard. For the reasons that follow, we conclude that OSHA correctly applied the law and that its factual determinations were supported by substantial evidence, and therefore the petitions for review are DENIED.

I.BACKGROUND

The Occupational Safety and Health Act of 1970 ("OSH Act"), 29 U.S.C. 651-678, was enacted to ensure safe and healthy working conditions for employees. The OSH Act empowers OSHA to promulgate standards "dealing with toxic materials or harmful physical agents . . . which most adequately assure[], to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life." 29 U.S.C. 655(b)(5). One such hazard is caused by harmful dusts, fumes, gases, and the like that contaminate the atmospheres in many workplaces. OSHA began to regulate employee exposure to such contaminants as early as 1971. In January 1998, OSHA issued a new regulatory standard representing a comprehensive revision of those portions of the old standard which addressed the manner and conditions of respirator use ("Standard"). See 63 Fed. Reg. 1152 (Jan. 8, 1998) (codified at 29 C.F.R. 1910.134). It is the Standard that is at issue in this case.

A.History of Respiratory Regulation

In 1971, while OSHA was still in its infancy, it promulgated an initial respiratory protection standard pursuant to 6(a) of the OSH Act, 29 U.S.C. 655(a). Section 6(a) authorized OSHA to adopt national consensus standards as occupational safety and health standards in a prompt manner, without the lengthy procedures normally incident to administrative rulemaking, during a period of two years from the OSH Act's effective date. Under that framework, OSHA adopted the American National Standards Institute ("ANSI") Standard Z88.2-1969, "Practices for Respiratory Protection." That standard reflected a preference for engineering controls over respirators;¹ in effect, it allowed respirators only "[w]hen effective engineering controls are not feasible, or while they are being instituted." This restriction on the use of respirators, sometimes referred to as the Hierarchy-of-Controls Policy, thus became an ingrained part of OSHA's regulatory framework, and was codified at 29 C.F.R. 1910.134(a)(1).

The authority that was conferred by 6(a) to codify national consensus standards as federally mandated occupational safety and health standards expired in 1973, but the respiratory protection standard remained intact. After 1973, OSHA was bound to follow 6(b) of the OSH Act, 29 U.S.C. 655(b), in promulgating, modifying, or revoking standards. Section 6(b) requires the notice and comment procedures typical to administrative rulemaking.² Various parts of the old respiratory protection standard were revised and updated over the years pursuant to 6(b), but the changes were relatively minor.

The issuance of the Standard in 1998 was the culmination of several years of regulatory debate, hearings, and comment from industry, labor, and other interested persons. The Standard was limited to issues relating to the manner and conditions of use of respirators, and retained the Hierarchy-of-Controls Policy as reflected in 1910.134(a)(1). OSHA first published an advance notice of proposed rulemaking on May 14, 1982. See 47 Fed. Reg. 20803. On September 17, 1985, OSHA announced the availability of a preliminary draft of a new respiratory protection standard. On November 4, 1994, OSHA published a proposed version of the new respiratory protection standard, and the hearing required by 29 U.S.C. 655(b)(3) was held June 6, 1995. Following the hearing, OSHA obtained additional comments from interested parties. The final Standard was published on January 8, 1998 and became effective on April 8, 1998.

B.Highlights of the Standard

The Standard retains the Hierarchy-of-Controls Policy, which as a general matter prefers engineering controls over respirators worn by individual employees. 29 C.F.R. 1910.134(a)(1). However, the employer is required to provide respirators for its employees when respirators are necessary to protect their health. 29 C.F.R. 1910.134(a)(2). The Standard requires certain employers to develop and implement a written respiratory protection program that includes several mandatory items. 29 C.F.R. 1910.134(c). Employers are required to select particular types of respirators based on certain criteria, such as the nature of harmful contaminants and workplace and user factors. 29 C.F.R. 1910.134(d). In this regard, atmospheres in workplaces are classified into two categories: "immediately dangerous to life and health" ("IDLH"), and non-IDLH. Only certain highly effective types of respirators may be used in IDLH atmospheres. 29 C.F.R. 1910.134(d)(2). With respect to non-IDLH atmospheres, the Standard permits an employer to choose between atmosphere-supplying respirators (i.e., those with a self-equipped oxygen tank) and the less burdensome air-purifying respirators (i.e., those which merely filter the incoming air). 29 C.F.R. 1910.134(d)(3)(iii). However, air-purifying respirators are usable only if certain specified steps are taken to ensure that the filtering device is working and maintained properly. 29 C.F.R. 1910.134(d)(3)(iii)(B). The medical evaluation provisions of the Standard require the employer "to provide a medical evaluation to determine the employee's ability to use a respirator, before the employee is fit tested or required to use the respirator in the workplace." 29 C.F.R. 1910.134(e)(1). The medical evaluation provisions spell out the procedures in this regard much more specifically than the prior standard. In addition, whereas licensed physicians were responsible for such medical evaluations under the prior standard, the Standard allows non-physician "licensed health care professionals" to perform such evaluations to the extent allowed under state law. 29 C.F.R. 1910.134(e)(2). The new Standard also contains detailed provisions relating to initial and periodic fit-testing to ensure respirators fit an employee-user's face properly, 29 C.F.R. 1910.134(f), proper day-to-day use of respirators, 29 C.F.R. 1910.134(g), maintenance and care of respirators, 29 C.F.R. 1910.134(h), the required quality of the breathing gases used in conjunction with an air-supplying respirator, 29 C.F.R. 1910.134(i), proper identification and labeling of filters, cartridges, and canisters, 29 C.F.R. 1910.134(j), provision of training and information to employees, 29 C.F.R. 1910.134(k), periodic self-evaluations of an employer's written respiratory protection program to ensure that it continues to work properly, 29 C.F.R. 1910.134(l), and appropriate record-keeping regarding medical evaluations and fit-testing, 29 C.F.R. 1910.134(m).

C.Provisions Under Attack and Alignment of the Parties

The instant petitions for review are brought by the Industry and the Doctors. The Industry challenges three particular aspects of the Standard. First, it challenges the retention of the Hierarchy-of-Controls Policy in 1910.134(a)(1), and OSHA's failure even to consider revising or abrogating that policy in light of its revision of the rest of the regulation. Second, it challenges 1910.134(d)(3)(iii)(B) and the conditions placed upon the use of air-purifying respirators, as opposed to air-supplying respirators. Third, it challenges the requirements in 1910.134(f)(2) and 1910.134(k)(5) regarding, respectively, annual fit-testing and annual retraining, contending that less frequent fit-testing and retraining would have sufficed.

The Doctors, on the other hand, challenge only one aspect of the Standard: the provision in 1910.134(e) enabling non-physician licensed health care professionals (e.g., nurses, physician's assistants, etc.) to perform the medical evaluation services that were previously conducted only by physicians ("Non-Physician Involvement Provision"). They contend that the Non-Physician Involvement Provision is defective because OSHA failed to notify interested parties that it was considering the elimination of mandatory physician involvement, that it is void for vagueness, and that it is not amply supported by the factual evidence.

The United Steelworkers of America ("Steelworkers") have intervened in this litigation; the Steelworkers defend the Standard against the Industry's attack, but adopt the Doctors' argument regarding the Non-Physician Involvement Provision. The American Association of Occupational Health Nurses and the American Nurses Association (collectively, "Nurses") have intervened in...