557 F.3d 165 (3rd Cir. 2009), 06-1818, Public Citizen Health Research Group v. United States Dept. of Labor

Docket Nº06-1818, 06-2604.
Citation557 F.3d 165
Party NamePUBLIC CITIZEN HEALTH RESEARCH GROUP; The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Petitioners in 06-1818 v. UNITED STATES DEPARTMENT OF LABOR, Occupational Safety and Health Administration, Respondent Aerospace Industries Association of America, Inc., Portland Cemen
Case DateFebruary 23, 2009
CourtUnited States Courts of Appeals, United States Court of Appeals (3rd Circuit)

Page 165

557 F.3d 165 (3rd Cir. 2009)

PUBLIC CITIZEN HEALTH RESEARCH GROUP; The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Petitioners in 06-1818

v.

UNITED STATES DEPARTMENT OF LABOR, Occupational Safety and Health Administration, Respondent

Aerospace Industries Association of America, Inc., Portland Cement Association **, Surface Finishing Industry Council *, Color Pigments Manufacturers Association, Inc., National Association of Manufacturers and Specialty Industry of North America, Intervenors.

(*Dismissed-See Court's Order dated 12/13/06).

(**Dismissed-See Court's Order dated 06/26/07).

Edison Electric Institute, Petitioner in

v.

Occupational Safety and Health Administration, United States Department of Labor, Respondent

Aerospace Industries Association of America, Inc., Portland Cement Association **, Surface Finishing Industry Council*, Color Pigments Manufacturers Association, Inc., National Association of Manufacturers and Specialty Industry of North America, Intervenors.

(*Dismissed-See Court's Order dated 12/13/06).

(**Dismissed-See Court's Order dated 06/26/07).

Nos. 06-1818, 06-2604.

United States Court of Appeals, Third Circuit.

February 23, 2009

Argued Nov. 21, 2008.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Scott L. Nelson, Esq. [Argued], Public Citizen Litigation Group, Washington, DC, for Non Party-Petitioners Public Citizen's Health Research Group and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union.

Stephen C. Yohay [Argued], Ogletree, Deakins, Nash, Smoak & Stewart, Washington, DC, for Non Party Petitioner Edison Electric Institute.

Charles F. James, Esq., Gary K. Stearman, Esq. [Argued], Lauren S. Goodman, Esq., U.S. Department of Labor, Office of the Solicitor, Washington, DC, for Non Party-Respondent Occupational Safety and Health Administration United States Department of Labor.

Douglas J. Behr, Esq., Lawrence P. Halprin, Esq., Keller & Heckman, Washington, DC, for Non Party-Intervenor Respondent Aerospace Industries Association of America, Inc.

Glenn C. Merritt, Esq., Fitzpatrick & Merritt, Bayonne, NJ, for Non Party-Intervenor Respondent Color Pigments Mfg.

Wayne J. D'Angelo, Esq., Kathryn M.T. McMahon-Lohrer, Esq., John L. Wittenborn, Esq., Kelley, Drye & Warren, Washington, D.C., for Non Party-Intervenor Respondent Specialty Steel Industry of North America.

Before SCIRICA, Chief Judge, RENDELL, Circuit Judge, and O'CONNOR, Retired Associate Justice, U.S. Supreme Court.[*]

OPINION

RENDELL, Circuit Judge.

Petitioners challenge a standard promulgated by the Occupational Safety and

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Health Administration (" OSHA" ) to regulate the occupational exposure of workers to hexavalent chromium (" Cr(VI)" ), a toxic substance. Public Citizen Health Research Group and the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Worker's International Union, (collectively " HRG" ) join in arguing that OSHA violated its statutory mandate in adopting a standard that under-regulates Cr(VI) exposure. The Edison Electric Institute (" EEI" ) separately argues that OSHA improperly adopted a standard that is over-inclusive of coal and nuclear electric power generating plants. For the reasons stated below, we will grant HRG's petition with regard to the employee exposure notification requirements of the standard. We will deny both petitions on all other grounds.

I. Background

Cr(VI) is a state of the metal chromium that generally results from man-made processes. Occupational Exposure to Hexavalent Chromium, 71 Fed.Reg. 10,100, 10,104 (Feb. 28, 2006). Compounds containing Cr(VI) can exist in mist, dust, or fume form, and have long been known to jeopardize the health of workers when inhaled, or upon contact with skin. Cr(VI) has been known to cause lung cancer, asthma, and damage to skin and the lining of the nasal passage. Id. at 10,108. Compounds containing Cr(VI) are used intentionally to perform metal electroplating, and in the production of chemical catalysts and pigments for textile dyes, paints, inks, glass, and plastics. Cr(VI) compounds are also encountered incidentally, for example as a by-product of certain welding processes, and as an impurity found in portland cement. Id. According to OSHA, there are over 30 industry sectors in which workers may be exposed to Cr(VI). Id. at 10,246-55.

In 1971, OSHA adopted a permissible exposure limit (" PEL" ) of 52 micrograms of Cr(VI) per cubic meter, or 52 < < mu> > g/m 3, which had been a recommended industry limit since 1943. Id. at 10,101-03. The early standard was established to protect nasal tissues from irritation and damage, but, over time, government and private organizations came to recognize Cr(VI) as a carcinogen. Id. at 10,103. In 1998, this Court denied a petition by the Oil, Chemical and Atomic Workers Union and Public Citizen's Health Research Group to compel OSHA to establish a lower PEL for Cr(VI). Oil, Chem. & Atomic Workers Union v. OSHA, 145 F.3d 120 (3d Cir.1998). In 2002, however, this Court directed OSHA to " proceed expeditiously with its [Cr(VI) ] rulemaking" after finding that OSHA's delay in promulgating a new standard had become unreasonable. Pub. Citizen Health Research Group v. Chao, 314 F.3d 143, 159 (3d Cir.2002).

OSHA subsequently proposed a new Cr(VI) standard in 2004, and opened the matter for comment. The proposed rule contemplated reducing the PEL from 52 to 1 < < mu> > g/m 3. Occupational Exposure to Hexavalent Chromium, 69 Fed.Reg. 59,306 (Oct. 4, 2004). After extensive comments and hearings, OSHA issued its final rule on February 28, 2006. 71 Fed.Reg. 10,100. Upon examining the health risks to workers, and the feasibility of implementing various PELs, OSHA replaced the proposed 1 < < mu> > g/m 3 PEL with a universal PEL of 5 < < mu> > g/m 3. 71 Fed.Reg. 10,100-385. OSHA issued corrections to the final rule on June 23, 2006, and a minor amendment on October 30, 2006, reflecting a settlement agreement with various parties. 71 Fed.Reg. 36,008 (June 23, 2006); 71 Fed.Reg. 63,238 (Oct. 30, 2006).

HRG and EEI level a number of attacks on the methodology employed and conclusions

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reached by OSHA. We accordingly summarize OSHA's relevant methodology and findings as background for our decision.

A. Estimation of Health Risk

In adopting a new standard, OSHA must establish that workers face a significant risk of material harm. OSHA considered more than 40 studies of workers in order to assess the relationship between exposure to Cr(VI) and lung cancer. 71 Fed.Reg. 10,175. OSHA decided to base its risk analysis on the so-called " Gibb" and " Luippold" cohorts, which were both derived from studies of workers in chromate production facilities. Id. at 10,176, 10,220.According to OSHA,

the Gibb cohort and the Luippold cohort, were found to be the strongest data sets for quantitative assessment.... Of the various studies, these two had the most extensive and best documented Cr(VI) exposures spanning three or four decades. Both cohort studies characterized observed and expected lung cancer mortality and reported a statistically significant positive association between lung cancer risk and cumulative Cr(VI) exposure.

Id. at 10,176.

OSHA found that a " linear relative risk model" best described the relationship between Cr(VI) exposure and lung cancer, whereby the exposure level over the course of a hypothetical 45-year career was directly correlated to the risk of cancer. Id. at 10,194. OSHA used the Gibb and Luippold cohorts to establish upper and lower estimates of cancer cases per 1000 workers, and tabulated the estimated cases for exposure levels ranging from 0.25 < < mu> > g/m 3 to the pre-existing PEL of 52 < < mu> > g/m 3. Id. at 10,195. According to the resulting table, exposure at 1 < < mu> > g/m 3 would result in an estimated 2.1 to 9.1 cancer cases, exposure at 5 < < mu> > g/m 3 would result in 10 to 45 cases, and exposure at the pre-existing PEL would result in 101 to 351 cases. Id.

Based in part on this information, OSHA concluded that " Cr(VI) causes ‘ material impairment of health or functional capacity’ within the meaning of the OSH Act." Id. at 10,221. OSHA further determined that the cancer risk of 100 to 350 cases under exposure at the pre-existing 52 < < mu> > g/m 3 PEL was " clearly significant." Id. at 10,224. OSHA also found that the estimated 10 to 45 cases at a career exposure level of 5 < < mu> > g/m 3, the PEL ultimately selected, would represent a substantial improvement, but the risk of impairment would remain " clearly significant." Id.

B. Feasibility Analysis

By law, OSHA is required to demonstrate both the " technological" and " economic" feasibility of a standard. After exploring the technological and economic feasibility of alternative Cr(VI) PELs, OSHA concluded that implementation of the proposed 1 < < mu> > g/m 3 PEL would not be feasible. Although the agency recognized that a PEL of 5 < < mu> > g/m 3 still presented significant health risks to workers, the agency found the higher level to be feasible, and adopted it as a universal PEL. A summary of OSHA's relevant technological and economic feasibility analyses follows.

1. Technological Feasibility

To assess technological feasibility, OSHA expressly applied the standard articulated by the Court of Appeals for the D.C. Circuit in United Steelworkers of America, AFL-CIO-CLC v. Marshall, 647 F.2d 1189 (D.C.Cir.1980) (" Lead " ). 71 Fed.Reg. 10,335. The Lead decision provides:

[W]ithin the limits of the best available evidence, and subject to the court's

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search for substantial evidence, OSHA must prove a reasonable possibility that the typical firm will be able to...

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    ...many industries rather than on an industry-by-industry basis, Public Citizen Health Research Group v. United States Department of Labor, 557 F.3d 165,178-79 (3d Cir. 2009; Ex. With respect to economic feasibility, the courts have stated ``A standard is feasible if it does not threaten massi......
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