630 F.2d 398 (5th Cir. 1980), 78-2663, Texas Independent Ginners Ass'n v. Marshall
|Docket Nº:||78-2663, 78-2760, 78-2763, 78-2928, 78-3042 and 78-3044.|
|Citation:||630 F.2d 398|
|Party Name:||TEXAS INDEPENDENT GINNERS ASSOCIATION, Petitioner, v. F. Ray MARSHALL, Secretary of Labor, United States Department of Labor, Eula Bingham, Assistant Secretary of Labor, United States Department of Labor, and Occupational Safety and Health Administration, United States Department of Labor, Respondents. TEXAS COTTON GINNERS ASSOCIATION, Petitioner,|
|Case Date:||November 14, 1980|
|Court:||United States Courts of Appeals, Court of Appeals for the Fifth Circuit|
[Copyrighted Material Omitted]
McCleskey, Harriger, Brazill & Graf, Don Graf, Lubbock, Tex., for petitioner.
Carl W. Vogt, Fulbright & Jaworski, Washington, D.C., for California Cotton Ginners Ass'n., Oklahoma Cotton Ginner's Ass'n., New Mexico Cotton Ginner's Ass'n. and Southeastern Cotton Ginners Ass'n. and Southern Cotton Ginners Ass'n., intervenor and petitioners.
Allen H. Feldman, Acting Counsel for Appellate Litigation, John A. Bryson, Atty., U.S. Dept. of Labor, Washington, D.C., for respondents in all cases.
John Cary Sims, Diane B. Cohn, Washington, D.C., Robert B. Stulberg, Attys., New York City, for petitioner.
Griswold, Bissig, LaSalle & Cobb, Lyman D. Griswold, Hanford, Cal., Carl W. Vogt, Washington, D.C., for petitioners.
Petitions for Review of an Order of the Occupational Safety and Health Administration.
Before WISDOM, HILL and VANCE, Circuit Judges.
VANCE, Circuit Judge:
The Occupational Safety and Health Administration (OSHA) promulgated regulatory standards for the cotton gin industry under the Occupational Safety and Health Act (the Act). 29 U.S.C. § 651 et seq. Five industry associations petitioned for pre-enforcement review in this court, 1 with four other industry organizations intervening, 2 on the basis that the regulations are too stringent; four gin employee organizations petitioned for review 3 on the ground that the standards do not adequately protect workers against the hazards of cotton dust. The Supreme Court recently ruled that the Act requires OSHA to provide substantial evidence that a significant risk of harm arises from a workplace or employment. Industrial Union Department, AFL-CIO v. American Petroleum Institute, --- U.S.
----, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980) (plurality opinion). This circuit, affirmed on other grounds by the Supreme Court, had held that the Act also compels OSHA to adduce substantial evidence that the costs imposed by a regulation bear a reasonable relation to the benefits derived. 4 American Petroleum Institute v. OSHA, 581 F.2d 493, 503 (5th Cir. 1978). In protecting workers' safety and health Congress also limited OSHA's regulatory power through statutory requirements that we must enforce.
Background information about the ginning industry and occupational diseases is essential for analysis of the justification, reasonable necessity, and feasibility of OSHA's regulations.
The Ginning Industry
The ginning process consists of a series of mechanical operations that separate the lint from the seed so that the lint may be processed by textile mills and the seeds may be used by cottonseed oil mills. Additionally, ginning removes foreign matter that has become entangled in the raw cotton during harvesting. Most of the cotton crop is ginned in the fall and early winter, immediately after it is picked, on the farm or in the locality where it is grown. 5
The ginning system is automated to a large extent with the cotton moving through pneumatic pipes. Cotton is delivered to the gin in storage trailers and removed by a pneumatic device. The cotton passes through machinery that separates the lint from the seed. The seed are conveyed to a storage house and the cotton lint is pneumatically conveyed through lint cleaners into the baling press where it is hydraulically pressed into bales.
Although the size of the operation and the capabilities of the individuals influence the composition of the workforce, the job functions in a typical cotton gin crew include a gin stand operator, lint cleaner operator, press man, sucker pipe operator and yard man. The average gin worker spends half of his time outside the gin shed away from cotton dust concentrations, and the typical gin is at least partially open-sided with substantial outside air circulation. 6
Gin employment is characterized by its seasonal nature, migrant work force, and high employee turnover. Estimates of a typical ginning season vary from four-six weeks, four-eight weeks, and five-twelve weeks. The average employee works only about seven weeks per year, averaging sixty workhours per week. 7 Because a major source of gin workers is local transient labor, there is a rapid turnover among nonsupervisory employees. In the west, the labor force is supplemented by a large number of migrant workers, leading to a very high turnover rate. Additionally, gins often hire workers to meet their immediate needs; consequently, workers frequently move onto other jobs when a gin's operation is interrupted or finished. The general level of cotton dust exposure is significantly lower for gin workers than for textile workers and most other cotton manufacturing workers because of the seasonal nature of ginning, the transitory character of the labor force, and the gin workers' exposure to outside air.
Byssinosis, commonly called brown lung disease, is a respiratory impairment linked
to inhalation of cotton dust. 8 Acute byssinosis, in its three stages, is characterized by occasional chest tightness on Monday or the first day of the work week (grade 1/2), chest tightness or breathlessness on every Monday (grade 1), and those symptoms on midweek days as well (grade 2). Chronic byssinosis, with symptoms similar to bronchitis and emphysema, involves chest tightness or breathlessness on Mondays and other work days and permanent incapacity from short-windedness or reduced breathing ability (grade 3). 9 Grades 1/2 through 2 are nondisabling and reversible while grade 3 is generally disabling and irreversible. The acute grades of byssinosis presently can be diagnosed only by subjective questions, while chronic byssinosis can also be detected by two pulmonary function tests. 10
Numerous studies involving the textile industry have linked the occurrence of acute and chronic byssinosis to long term exposure to cotton dust, although they have not fully explained the etiology. 11 The least acute stage does not develop until after several years of a worker's exposure, 12 and the majority of textile and other cotton industry workers never evidence byssinosis. Six studies involving foreign ginning and one surveying the American ginning industry 13 have yielded conflicting results about whether byssinosis and chronic respiratory disease result from the exposure level in gins to cotton dust. 14
The Challenged Ginning Regulations
The Assistant Secretary of Labor for the Occupational Safety and Health Administration in 1978 promulgated regulations of cotton dust exposure by gin employees through informal rulemaking procedures. 29 C.F.R. § 1910.1046 (1979). These cotton gin regulations essentially involve five requirements. Beginning with the most controversial directive, (1) employers must provide medical surveillance of exposed employees. 15 Before ginning employment begins each year, medical technicians must take a medical history, administer a seven page questionnaire about subjective symptoms, give the pulmonary function tests for objective symptoms, and grade any byssinosis symptoms. After at least fourteen days of ginning employment, they must repeat
the pulmonary function tests when the employee has been off work for at least twenty-four hours and then after he has worked for at least four hours in the gin that same day. The midseason test results must be compared with each other and with the pre-employment results, and all pulmonary measurements must be compared with the employee's results from prior years and with standard values for the general population. A physician must then prepare a...
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