773 F.2d 1436 (4th Cir. 1985), 83-1420, Forging Industry Ass'n v. Secretary of Labor

Docket Nº83-1420.
Citation773 F.2d 1436
Party NameFORGING INDUSTRY ASSOCIATION, Petitioner, v. SECRETARY OF LABOR, Respondent. National Arborist Association, Inc., Intervenor. American Speech-Language-Hearing Assoc., Amicus Curiae. American Federation of Labor and Congress of Industrial Organizations, Amicus Curiae.
Case DateSeptember 23, 1985
CourtUnited States Courts of Appeals, United States Courts of Appeals. United States Court of Appeals (4th Circuit)

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773 F.2d 1436 (4th Cir. 1985)

FORGING INDUSTRY ASSOCIATION, Petitioner,

v.

SECRETARY OF LABOR, Respondent.

National Arborist Association, Inc., Intervenor.

American Speech-Language-Hearing Assoc., Amicus Curiae.

American Federation of Labor and Congress of Industrial

Organizations, Amicus Curiae.

No. 83-1420.

United States Court of Appeals, Fourth Circuit

September 23, 1985

Argued June 3, 1985.

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Robert D. Moran, Washington, D.C. (Vorys, Sater, Seymour & Pease, Washington, D.C., on brief) for appellant.

Steven R. Semler, Washington, D.C. (Zimmerman, Semler & Pritzker, Washington, D.C., on brief), for intervenor.

Joseph M. Woodward, Washington, D.C. (Francis X. Lilly, Deputy Sol. of Labor, Frank A. White, Associate Sol., Washington, D.C., for Occupational Safety and Health, Dennis K. Kade, Appellate Litigation, Judith N. Macaluso, Laura V. Fargas, U.S. Dept. of Labor, Washington, D.C., on brief), for appellees.

R. Morgan Downey, Laurence Gold, George H. Cohen, Jeremiah A. Collins, Bredhoff & Kaiser, Washington, D.C., on brief), for amicus curiae.

Before WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, ERVIN, CHAPMAN and WILKINSON, Circuit Judges, sitting en banc.

SPROUSE, Circuit Judge:

The Forging Industry Association (FIA) petitions for review of the Secretary of Labor's promulgation of a hearing conservation amendment (amendment) to its occupational noise exposure standard, 29 C.F.R. Sec. 1910.95 (1984). The FIA contends that the Department of Labor's Occupational Safety and Health Administration (OSHA) exceeded its authority in adopting the amendment, that there was not substantial evidence to support OSHA's determination of a significant risk of harm in the workplace justifying the amendment's requirements, that the amendment was not reasonably necessary or appropriate to provide

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safe employment, and that the amendment's requirements are not feasible. Intervenor, National Arborist Association (NAA), contends that the Agency arbitrarily refused to exempt the tree care industry from the amendment's requirements.

I.

An occupational noise exposure standard has existed since OSHA's inception in 1971. The current standard, which is found at 29 C.F.R. Sec. 1910.95, was originally promulgated under the Walsh-Healey Public Contracts Act, 41 U.S.C. Secs. 35-45 (1982) for the purpose of protecting employees from workplace exposure to damaging levels of noise. The Walsh-Healey standard was adopted by OSHA pursuant to Section 6(a) of the Occupational Safety and Health Act, which allowed the Secretary to promulgate any established Federal standard within two years of the effective date of the Act without following normal rulemaking procedure.

The standard established a permissible workplace limit of 90 decibels (db) 1 calculated using an 8-hour time-weighted average (TWA). 2 29 C.F.R. Sec. 1910.95(a). If the 90 db exposure limit is exceeded, the employer must reduce noise to or below this level by using feasible engineering or administrative controls. 3 Id. at Sec. 1910.95(b)(1). If such controls are infeasible, employers may use hearing protectors, such as ear muffs or plugs, to reduce employee noise exposure to permissible limits. Id. Prior to amendment, the standard also contained a generally phrased requirement that employers administer "a continuing effective hearing conservation program" in workplaces where sound levels exceeded the permissible exposure level (PEL). 4 Id. at Sec. 1910.95(b)(3) (1980).

When studies revealed that many employees suffered significant hearing impairment at noise levels below the 90 db threshold, OSHA began the process of collecting and evaluating the information necessary to issue a comprehensive new regulation with a reduced permissible exposure level of 85 db. As an interim measure, OSHA adopted in 1983 a hearing conservation amendment to replace the general conservation program requirement.

The amendment requires employers to determine, through implementation of a monitoring program, which employees are exposed to an "action level" of 85 db or above measured as an 8-hour TWA. 29 C.F.R. 1910.95(d). Such employees must be notified of the amount of sound they are exposed to and be provided with an audiometric test to determine their hearing level. Id. at 1910.95(e), (g)(1). At least annually thereafter, the employer must provide the exposed employee with an additional audiometric test to determine whether the employee has suffered an average loss of hearing of 10 db or more in either ear

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known as a standard threshold shift (STS). 5 Id. at 1910.95(g)(6). If there has been an STS, the employer must take follow-up measures to prevent the employee from reaching the material impairment stage. 6 These measures include fitting the employee with hearing protectors, providing training, and requiring the employee to use the protectors. Id. at 1910.95(g)(8). The protectors must reduce the employee's exposure to an 8-hour TWA of 85 db or less. Id. at 1910.95(j)(3).

In addition, the employer must institute a training program on audiometric testing, hearing protectors, and effects of noise on hearing for all employees who are exposed to noise at or above an 8-hour TWA of 85 db. Id. at 1910.95(k). The employer must also retain records of employee exposure measurements and audiometric tests. Id. at 1910.95(m).

The provisions of the amendment apply to all employees covered by the Act, except those in construction, agriculture, and oil and gas well drilling and servicing. 46 Fed.Reg. 42622; 29 C.F.R. Sec. 1910.95(o). OSHA estimates the annual cost of compliance for the amendment at $210.3 million. In terms of industry costs, it estimated the costs at $41 annually for each employee. Regulatory Impact and Regulatory Flexibility Analysis of the Hearing Conservation Amendment, U.S. Department of Labor, Occupational Safety and Health Administration, Office of Regulatory Analysis (February 1983), part IV.

II.

Promulgation of the amendment was preceded by almost ten years of administrative proceedings. In 1974 OSHA published a notice of proposed rulemaking and invited interested persons to submit written data, views, and arguments regarding the proposal. Hearings were held in 1975, in which over ninety parties participated. An economic impact analysis prepared for OSHA by Bolt, Beranek & Newman, Inc., was made publicly available in June 1976, and interested persons were afforded the opportunity to comment on this study. In October 1976 an informal public hearing was held on the economic analysis. OSHA reopened the record in 1980 for the purpose of introducing additional comments, letters, and reports that had been received by the Agency, and interested persons were given an opportunity to submit comments on this added information.

OSHA first promulgated the hearing conservation amendment on January 16, 1981, requiring noise exposure monitoring, audiometric testing, use of hearing protection devices, education of employees, posting of warning signs, and retention of records. 7

In response to this promulgation, OSHA received numerous requests for clarification as well as petitions for reconsideration and administrative stay. Additionally, petitions for judicial review under section 6(f) of the Occupational Safety and Health Act of 1970, 29 U.S.C. Sec. 655(f) (1982) 8 were

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filed in this court by the Chocolate Manufacturers Association, Chamber of Commerce, and American Iron and Steel Institute. In January 1982 the Agency announced that additional public hearings would be held on all aspects of the amendment. 9

After completion of these additional hearings and substantial revision of the amendment, the Agency, on March 8, 1983, published the amendment as a final rule. 29 C.F.R. Secs. 1910.95(c)-(p).

From the evidence presented during these proceedings, the Agency concluded that noise is one of the Nation's most pervasive occupational health problems. Further, the Agency determined that 10 to 15 percent of employees exposed to an eight-hour TWA of 85-90 db will suffer a material hearing impairment. The Agency ultimately concluded that enforcement of the amendment's requirements would result in a significant prevention of hearing loss by the 2.2. million workers in American production industries with eight-hour TWAs between 85-90 db. 10

The Agency also found that compliance with the amendment was technologically feasible, reasoning that the requirements did not create any engineering problems and that the necessary equipment and specialized personnel were available to implement the amendment's requirements. 46 Fed.Reg. at 4117. Finally, OSHA concluded that the standard was economically feasible in that the cost of compliance, $41 per employee, was small relative to both sales (averaging less than 0.0148 percent) and profits (averaging less than 0.1932 percent).

III.

The Agency's authority to promulgate standards is established in sections 3(8) and 6(b) of the Act, 29 U.S.C. Secs. 652(8) and 655(b) (1982). Section 3(8) defines "occupational safety and health standard" as "a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment." 29 U.S.C. 652(8). In promulgating standards dealing with toxic materials or harmful physical agents, section 6(b)(5) requires the Agency to

set the standard which most adequately assures, 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. Sec. 655(b)(5).

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