825 F.2d 482 (D.C. Cir. 1987), 78-2014, National Cottonseed Products Ass'n v. Brock

Docket Nº:78-2014, 86-1075 and 86-1157.
Citation:825 F.2d 482
Party Name:17 Envtl. , NATIONAL COTTONSEED PRODUCTS ASSOCIATION, Petitioner, v. William E. BROCK, Secretary of Labor, United States Department of Labor and Eula Bingham, Assistant Secretary of Labor, United States Department of Labor; Occupational Safety and Health Administration, United States Department of Labor, Respondents. NATIONAL COTTONSEED PRODUCTS AS
Case Date:August 07, 1987
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 482

825 F.2d 482 (D.C. Cir. 1987)

17 Envtl. ,



William E. BROCK, Secretary of Labor, United States

Department of Labor and Eula Bingham, Assistant Secretary of

Labor, United States Department of Labor; Occupational

Safety and Health Administration, United States Department

of Labor, Respondents.



William E. BROCK, Secretary of Labor, U.S. Department of

Labor, et al., Respondents.




Nos. 78-2014, 86-1075 and 86-1157.

United States Court of Appeals, District of Columbia Circuit

August 7, 1987

Argued Jan. 16, 1987.

As Amended Aug. 13, 1987.

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[Copyrighted Material Omitted]

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Carl W. Vogt, Washington, D.C., with whom Joyce E. Reback was on the brief for petitioner, Nat. Cottonseed Products Ass'n in Nos. 78-2014 and 86-1075.

Peter G. Nash, Greenville, S.C., with whom Dixie L. Atwater, Greenville, S.C., and Nelson E. Schmidt, Chicago, Ill., were on the brief for petitioner Minnesota Mining and Mfg. Co. in No. 86-1157.

Andrea C. Casson, Asst. Counsel for Appellate Litigation, Dept. of Labor, Washington, D.C., with whom Joseph M. Woodward, Counsel for Appellate Litigation and Charles P. Gordon, Attorney, Dept. of Labor were on the brief for respondents.

George H. Cohen, Jeremiah A. Collins and Laurence Gold, Washington, D.C., were on the brief for amicus curiae, American Federation of Labor and Congress of Indus. Organizations.

Before ROBINSON, GINSBURG and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge RUTH B. GINSBURG and Circuit Judge WILLIAMS.

RUTH B. GINSBURG, Circuit Judge, and WILLIAMS, Circuit Judge:

Two remnants of the cotton dust rulemaking are presented to us following extensive judicial and administrative consideration of the regulations. See AFL-CIO v. Marshall, 617 F.2d 636 (D.C.Cir.1979), aff'd in part sub nom. American Textile Manufacturers Institute, Inc. v. Donovan, 452 U.S. 490, 101 S.Ct. 2478, 69 L.Ed.2d 185 (1981); see generally 50 Fed.Reg. 51,123-25 (1985). The first challenge, pressed by the National Cottonseed Products Association (NCPA), concerns Occupational Safety and Health Administration (OSHA) prescriptions for medical surveillance of workers exposed to cotton dust. The second challenge, framed by Minnesota Mining and Manufacturing Company (3M), concerns OSHA's effectiveness rating for the disposable respirators that 3M manufactures. We conclude that OSHA acted within its statutory authority and on a rational basis; we therefore deny the petition for review.


NCPA raises a question as to the scope of the Supreme Court's holding in Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980) [hereinafter Benzene ], that OSHA, in promulgating standards for toxic substances under Sec. 6(b)(5) of the OSH Act, 29 U.S.C. Sec. 655(b) (1982), must make a threshold finding of significant risk. We hold that this requirement is substantially modified when the sole requirement imposed is one of monitoring employee health, and that the Secretary's findings here are sufficient. NCPA also claims that the monitoring requirements are not feasible for the cottonseed industry; we reject the contention.

  1. Background

    Section 6(a) of the OSH Act, 29 U.S.C. Sec. 655(a) (1982), authorizes OSHA to adopt any "national consensus standard" as one of its own. In 1971 OSHA exercised this power as to cotton dust, adopting the 1000 ug/m 3 permissible exposure limit ("PEL") that had been promulgated under the Walsh-Healey Act, 41 U.S.C. Sec. 35(e) (1982). Section 6(b) of the OSH Act authorizes independent promulgation of standards, and in 1978 OSHA exercised that grant. Determining that the dust generated by cottonseed mills posed a material risk to cottonseed workers' health, it set a PEL of 500 ug/m 3 and required employers to adopt medical surveillance programs. 43 Fed.Reg. 27,350 (1978). On appeal, this court agreed that exposure to cotton dust presented a material risk of harm, but remanded for reconsideration or further explanation of the standard's economic feasibility. AFL-CIO v. Marshall, 617 F.2d

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    636, 666-73 (D.C.Cir.1979), aff'd on other grounds sub nom. American Textile Manufacturers Institute v. Donovan, 452 U.S. 490, 101 S.Ct. 2478, 69 L.Ed.2d 185 (1981). Thus, the 500 ug/m 3 PEL has never taken effect but the 1000 ug/m 3 limit has remained in place continuously since 1971.

    On remand, the agency reconsidered both the need for dust regulations in the cottonseed industry and their feasibility. 47 Fed.Reg. 5906 (1982). During this rule-making new studies of the domestic cottonseed industry came to light, indicating that, contrary to the Secretary's previous findings, "excess byssinosis and bronchitis are not present among U.S. cottonseed workers." 50 Fed.Reg. 51,120, 51,135 (1985). However, the record also indicated that a subset of hypersensitive workers suffers from respiratory ailments, as do a very high percentage of workers in foreign cottonseed mills (where dust levels are much higher), and that the precise causal link between cotton dust and respiratory harm remained unknown. Id.

    From these findings the Secretary determined that the risk of material harm to cottonseed workers would not be "significant" even without a PEL, so long as medical surveillance was retained as a "backstop." The backstop mechanism would protect hypersensitive workers and safeguard against risks stemming from the current inability to pinpoint the exact link between cotton dust and serious respiratory ailments. Id. at 51,135-36. Finding the facilities and personnel necessary for medical surveillance to be available at a cost that appeared trivial in relation to the industry's gross revenues, the Secretary concluded that medical surveillance was technologically and economically feasible and required it. Id. at 51,171.

  2. Significant Risk

    NCPA alleges that the Secretary's failure to find that the current level of dust in cottonseed mills presents a significant risk to workers' health precludes him, under Benzene, from imposing any Sec. 6(b) standard, including one limited to medical surveillance. We disagree; an unusally precise dictum in Benzene applies to this case and sanctions the Secretary's determination.

    In Benzene, the Court reviewed an OSHA regulation reducing the PEL for benzene from 10 parts per million (ppm) to one ppm. In lowering the standard OSHA never adduced any evidence that exposures at 10 ppm presented a risk to workers. Rather, OSHA took the position that it was entitled (and possibly obligated) to lower the PEL to the maximum extent feasible simply because benzene was a carcinogen for which no level of exposure had been proven absolutely harmless. Benzene, 448 U.S. at 652, 100 S.Ct. at 2869. Under OSHA's interpretation of the law, this regulatory power would be constrained only if industry established, apparently "beyond a shadow of a doubt," that there was a safe level of exposure. Id.

    The Court strongly rejected the notion that OSHA is entitled to regulate any risk, no matter how small or speculative, to the limits of feasibility. The OSH Act, the Court held, empowers OSHA to regulate only hazards presenting a "significant risk" of material harm to workers' health. 1 Thus, before OSHA could reduce the existing PEL, it had "the burden ... to show, on the basis of substantial evidence, that it is at least more likely than not that long-term exposure to 10 ppm of benzene presents a significant risk of material health impairment." Id. at 653, 100 S.Ct. at 2869.

    Here OSHA found that abandoning both the 1000 ug/m 3 and the 500 ug/m 3 PELs would not leave workers exposed to a significant risk. Accordingly, NCPA contends that under Benzene OSHA may issue no regulatory restrictions at all. We believe,

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    however, that Benzene dictates a significant risk analysis for monitoring requirements considerably laxer than for other workplace standards.

    The Benzene Court considered the possibility that OSHA might impose a standard but remain uncertain whether the residual risk was significant. It made clear that OSHA could in such a case impose monitoring requirements as a "backstop," in order to (1) check the validity of its assumptions in imposing the standard selected, (2) develop a sound evidentiary basis for decreasing the limit if it proved to have been set too high, and (3) ensure that unusually susceptible workers could be removed from exposure before they suffered permanent damage. 448 U.S. at 657-58, 100 S.Ct. at 2871-72.

    NCPA appears to acknowledge that this discussion is to be taken seriously despite its technical status as dictum. It claims, however, that the statement is applicable only if (1) the substance is toxic and "at some reasonably attainable level" causes harm, and (2) there is a relationship between worker exposure and health effects (a "dose-response" relationship). The Court's discussion does not impose either of these conditions, but we take NCPA in essence to argue that the Court's approval of monitoring would be senseless otherwise: why monitor if there is no chance of harm at levels that may come about? We think the evidence of risk before OSHA justifies application of the Court's dictum.

    In assessing whether harm exists at any "reasonably attainable" level, OSHA is hampered by the ambiguous relation between reality and the pre-existing regulation. Although it is agreed that the industry has not complied with the 1000 ug/m 3 standard (nor a fortiori that of 500 ug/m 3), see 50 Fed.Reg. 51,13 3 and 48 Fed.Reg. 26,968, there is no concession that the regulations of the past 16 years have been...

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