727 F.2d 415 (5th Cir. 1984), 83-4687, Asbestos Information Ass'n/North America v. Occupational Safety and Health Admin.

Docket Nº83-4687 to 83-4689 and 83-4711.
Citation727 F.2d 415
Party NameP 26,820 ASBESTOS INFORMATION ASSOCIATION/NORTH AMERICA, et al., Petitioners, v. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, et al., Respondents. EAST TEXAS SERVICE CORPORATION, et al., Petitioners, v. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, et al., Respondents.
Case DateMarch 07, 1984
CourtUnited States Courts of Appeals, United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 415

727 F.2d 415 (5th Cir. 1984)

P 26,820

ASBESTOS INFORMATION ASSOCIATION/NORTH AMERICA, et al., Petitioners,

v.

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, et al., Respondents.

EAST TEXAS SERVICE CORPORATION, et al., Petitioners,

v.

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, et al., Respondents.

Nos. 83-4687 to 83-4689 and 83-4711.

United States Court of Appeals, Fifth Circuit

March 7, 1984

Page 416

Liskow & Lewis, Gene W. Lafitte, Robert E. Holden, New Orleans, La., Kirkland & Ellis, Edward W. Warren, Timothy S. Hardy, Arthur F. Sampson, III, Washington, D.C., for petitioners.

Dennis K. Kade, Judity N. Macaluso, Andrea C. Casson, U.S. Dept. of Labor, Washington, D.C., for respondents.

Petitions for Review of an Order of the Occupational Safety and Health Administration.

Before CLARK, Chief Judge, RUBIN and JOLLY, Circuit Judges.

Page 417

E. GRADY JOLLY, Circuit Judge:

The Asbestos Information Association (AIA), an organization of American and Canadian manufacturers of asbestos products, asks this court to determine whether the Occupational Safety and Health Administration (OSHA) properly by-passed normal notice-and-comment rulemaking procedures in favor of creating an Emergency Temporary Standard (ETS) lowering workers' permissible exposure level (PEL) to ambient asbestos fibers from 2.0 fibers per cubic centimeter (f/cc) to 0.5 f/cc. We hold that OSHA did not invoke its ETS powers properly.

I.

Congress passed the Occupational Safety and Health Act (the Act) in 1970, codified at 29 U.S.C. Secs. 651-678, to assure safe and healthful working conditions for the nation's work force and to preserve the nation's human resources. 29 U.S.C. Sec. 651 (1976). Toward that goal, the Act allows the Secretary of Labor (the Secretary), after public notice and opportunity for comment by interested persons, to promulgate rules and standards for occupational safety and health. Id. at Sec. 655(b). The Act also allows the Secretary to by-pass these normal procedures in favor of promulgating an ETS to take effect immediately upon publication in the Federal Register if he determines that "employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards," and also determines "that such emergency standard is necessary to protect employees from such danger." 29 U.S.C. Sec. 655(c)(1). The ETS statute further provides that the ETS as published shall serve as a proposed rule, and that the Secretary shall act on the rule no later than six months after publication. 1

Any standard, including an ETS, properly imposed under the Act has the force of law because the Act imposes upon every employer 2 the duty to "comply with occupational safety and health standards promulgated under this chapter" or face civil and criminal penalties. 29 U.S.C. Sec. 654; Florida Peach Growers Association v. Department of Labor, 489 F.2d 120, 123 (5th Cir.1974).

On November 4, 1983, acting pursuant to its ETS enabling statute, OSHA published in the Federal Register an ETS lowering the time-weighted average PEL for ambient asbestos fibers from 2.0 f/cc that are 5 microns or more in length 3 to 0.5 f/cc. 48 Fed.Reg. 51,086-51,140 (1983). See also 29 C.F.R. Sec. 1910.1001 (1983) (text of current rule). In the November 4 publication, the Secretary also included a statement of reasons to support his action as he is required by law to do. 29 U.S.C. Sec. 655(c). See also Dry Color Manufacturers' Association v. Department of Labor, 486 F.2d 98 (3d Cir.1973) (applying Sec. 655(c) to ETS promulgations).

Page 418

The ETS allows "any practical combination" of engineering controls, work practices and personal protective equipment to meet the lower PEL. The ETS also requires training to begin within thirty days for all employees whose exposure is "reasonably expected" to be at or above the PEL. Training must cover respirator fitting and use, asbestos handling, medical information, and the relationship between smoking, lung cancer and asbestos-related diseases. 48 Fed.Reg. 51,139-51,140 (1983) (text of ETS). Finally, the Agency announced it would increase enforcement efforts in workplaces where asbestos is handled. Id. at 51,087.

The AIA immediately petitioned OSHA to stay the effective date of the ETS pending judicial review of whether OSHA's action is a proper application of its ETS statute. The Agency refused the stay.

Subsequently, on November 17, 1983, the AIA petitioned this court for an emergency stay pending judicial review of OSHA's action, arguing that its members would suffer irreparable harm if the stay were not granted, and arguing its likely ultimate success on the merits. After reviewing the arguments of both the AIA and OSHA, analyzing them according to well established legal criteria 4 for determining when a court should grant equitable interim relief, and balancing the equities involved, 5 this court granted the stay but expedited full hearing on the merits. We now hold that OSHA did not properly act pursuant to its ETS enabling statute and that the standard in question, therefore, should not become effective absent notice-and-comment rulemaking.

II.

OSHA has regulated asbestos since 1971. Its first asbestos PEL was 12.0 f/cc. In 1972 OSHA reduced this standard to 5 f/cc, 6 and in 1976 OSHA again reduced the standard to the currently effective 2 f/cc. In 1975 OSHA proposed to reduce the standard to 0.5 f/cc, but founded its proposal on a policy to set PEL's for carcinogens as low as technologically and economically feasible. The Agency did not act quickly and, in 1980, the Supreme Court rejected the proposition that such a general policy may serve as the basis for any rule, and held that OSHA must make an actual finding that the workplace is unsafe before it promulgates a standard. Industrial Union Department v. American Petroleum Institute, 448 U.S. 607, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980). OSHA bases its 1983 promulgation of an ETS lowering the PEL to 0.5 f/cc, however, on specific data compiled and analyzed by OSHA that lead it to conclude that a "grave danger" exists, necessitating immediate action. 48 Fed.Reg. at 51,088.

No new data or discovery leads OSHA to invoke its extraordinary ETS powers and lower the asbestos PEL. Rather, OSHA bases its conclusion that a grave danger exists on quantitative risk assessments, which are mathematical extrapolations, of

Page 419

the likelihood of contracting an asbestos-related disease at various levels of exposure to asbestos particles. The risk assessment, which OSHA completed in July of 1983, and a meeting a few months earlier between the Assistant Secretary of Labor and a recognized expert in the asbestos epidemiology field, heightened OSHA's awareness of the asbestos situation and precipitated the ETS.

OSHA calculated the likelihood of developing lung cancer, mesothelioma, 7 and gastrointestinal cancer due to contact with ambient asbestos fibers at different exposure levels. By applying its calculations to an estimated working population exposed to asbestos, OSHA claims that 210 lives eventually can be saved from cancer by lowering the PEL to 0.5 f/cc for six months. 48 Fed.Reg. at 51,086. These figures include deaths that will occur at OSHA's estimated current actual exposure levels and include employees working in environments where the density of ambient asbestos particles is 20 f/cc, ten times the current PEL. Even if, however, OSHA removes from the computation those employees who do not enjoy the benefit of the current 2.0 f/cc PEL because it is not enforced in their work place, and counts only those employees who are exposed to ambient asbestos between the levels of 2.0 f/cc and 0.5 f/cc, OSHA estimates it can save 80 lives by lowering the PEL for six months. 8

OSHA calculated the number of lives saved by first deriving a mortality rate, which is the number of excess deaths 9 because of exposure to ambient asbestos particles at different levels. 10 It then multiplied the number of workers currently exposed at those levels by the mortality rate. Finally, to obtain a projected number of lives saved, it subtracted the number of deaths that it estimates will continue to occur even at the new PEL from the number of deaths likely to occur at the higher levels of exposure, which resulted in 210 deaths for six months exposure. 48 Fed.Reg. at 51,095-51,097 and Chart 4.

The underlying data base from which OSHA derived its mortality rates consists of eleven epidemiological studies which OSHA felt contained sufficient data to allow computation of quantitative risk assessments for lung cancer. Four of these studies OSHA decided also provide sufficient

Page 420

data to compute risk assessments for mesothelioma. These eleven studies observe a total of approximately 53,000 workers in several countries and in a wide range of occupations. The studies include insulation workers, production workers, maintenance employees, textile workers, miners, and millers. They observe a variety of exposure levels, and include workers exposed to the three commonly occurring asbestos fiber types. 11 48 Fed.Reg. at 51,101-51,105.

JRB Associates, a private research firm, actually performed the mathematical computations to estimate the benefits of reducing the asbestos PEL from 2.0 f/cc to 0.5 f/cc. Additionally, JRB Associates estimated the number of workers currently exposed to asbestos, relying on 1980 worker population estimates made by Research Triangle Institute (RTI). JRB updated the RTI estimates to incorporate more recent employment statistics. Final Report, Benefits Assessment of Emergency Temporary and Proposed Asbestos Standards, JRB Associates (1983) (Record Exhibit 84-393). OSHA evidently also estimated the number of workers currently exposed to asbestos, by updating the 1980 RTI figures to reflect data it had accumulated over the past three...

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