878 F.2d 389 (D.C. Cir. 1989), 87-1743, International Union, United Auto, Aerospace and Agr. Implement Workers of America, UAW v. Pendergrass

Docket Nº:87-1743, 87-1744, 88-1021 and 88-1063.
Citation:878 F.2d 389
Party Name:INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, et al., Petitioners, v. John PENDERGRASS, Assistant Secretary of Labor for Occupational Safety and Health, Elizabeth Dole, Secretary of Labor, Respondents, United Brotherhood of Carpenters & Joiners of America, Formaldehyde Institute, Inc., et al.,
Case Date:June 09, 1989
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 389

878 F.2d 389 (D.C. Cir. 1989)

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND

AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, et

al., Petitioners,

v.

John PENDERGRASS, Assistant Secretary of Labor for

Occupational Safety and Health, Elizabeth Dole,

Secretary of Labor, Respondents,

United Brotherhood of Carpenters & Joiners of America,

Formaldehyde Institute, Inc., et al., Plywood

Panels, Inc., et al., Intervenors.

AMALGAMATED CLOTHING AND TEXTILE WORKERS UNION, et al., Petitioners,

v.

Dennis E. WHITFIELD, in his Capacity as Deputy Secretary of

Labor, U.S. Department of Labor, et al., Respondents.

FORMALDEHYDE INSTITUTE, INC., et al., Petitioners,

v.

Dennis E. WHITFIELD, Acting Secretary, U.S. Department of

Labor, et al., Respondents.

INTERNATIONAL MOLDERS AND ALLIED WORKERS UNION, AFL-CIO-CLC,

et al., Petitioners,

v.

Elizabeth DOLE, Secretary of Labor, et al., Respondents.

Nos. 87-1743, 87-1744, 88-1021 and 88-1063.

United States Court of Appeals, District of Columbia Circuit.

June 9, 1989

Page 390

Opinion Denied of Rehearing Sept. 22, 1989.

Argued March 14, 1989.

Sara D. Schotland, with whom Donald L. Morgan and W. Richard Bidstrup were on the brief, for industry petitioners and intervenors in Nos. 87-1743, 87-1744, 88-1021 and 88-1063.

Randy S. Rabinowitz, Washington, D.C., with whom Jordan Rosen, Ralph Jones, Kathy L. Krieger and David C. Vladeck, Washington, D.C., were on the brief, for petitioners Intern. Union, UAW, Glass Molders, et al., and intervenor Carpenters in Nos. 87-1743, et al. Alan B. Morrison, Washington, D.C., also entered an appearance, for petitioner in No. 88-1063.

J. Davitt McAteer, Washington, D.C., with whom Betty Jean Hall was on the brief, for petitioners Amalgamated Clothing and Intern. Ladies Garment Workers Union in Nos. 87-1743, et al.

Joseph A. Yablonski and John F. Colwell, Washington, D.C., also entered appearances for petitioner in No. 87-1744.

Charles K. Reasonover, New Orleans, La., also entered an appearance for petitioner in No. 88-1021.

Barbara Werthmann, Attorney, Department of Labor, Washington, D.C., with whom Cynthia L. Attwood, Arlington, Va., and Laura V. Fargas, Attys., Dept. of Labor, Washington, D.C., were on the brief, for respondents in Nos. 87-1743, et al.

Ann Rosenthal, Arlington, Va., Andrea C. Casson and Barbara A. McConnell also entered appearances for respondents in Nos. 87-1743, 87-1744 and 88-1021.

Joseph E. LeBlanc, Jr., New Orleans, La., entered an appearance for intervenor Plywood Panels, Inc., et al. in No. 88-1021.

Katherine L. Rhyne, Washington, D.C., also entered an appearance for intervenor Formaldehyde Institute, Inc., et al., in No. 87-1743.

Before SILBERMAN, BUCKLEY and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

STEPHEN F. WILLIAMS, Circuit Judge:

Under authority provided by Sec. 6(b) of the Occupational Safety and Health Act of 1970, 29 U.S.C. Sec. 655(b), the Occupational Safety and Health Administration ("OSHA") in December 1987 adopted new standards for formaldehyde in the workplace. The standards reduce the permissible exposure limit ("PEL") to one part per million ("ppm") as an 8-hour time-weighted average and the short term exposure limit ("STEL") to 2 ppm. 52 Fed.Reg. 46,168-312, codified at 29 C.F.R. Sec. 1910.1048 (1988). They also provide for a variety of ancillary measures, including employee exposure monitoring, medical surveillance, hazard communication and recordkeeping. 29 C.F.R. Sec. 1910.1048(d)-(o).

Several unions representing workers in the affected industries claim the standards are not stringent enough to satisfy Sec. 6(b)(5)'s requirements for the regulation of toxic materials. First, they assert that OSHA erred in finding that formaldehyde would present no significant risk at the 1 ppm level. If they are right, OSHA would be required to tighten the standard, to the point where there remains no significant risk or where further tightening is infeasi

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ble.. (They propose 0.5 ppm, or possibly lower.) Second, the unions contend that OSHA was arbitrary and capricious in failing to take stricter measures on medical surveillance, examinations, and medical protection.

Industry petitioners initially attacked the standards governing labeling requirements for formaldehyde, but they now request deferral of their challenge, pending the outcome of OSHA's ongoing reappraisal of these requirements. See Industry Petitioner's Reply Brief at 37-39.

We hold that OSHA has insufficiently explained its finding of insignificant risk at an exposure of 1 ppm, and its attendant refusal to impose a lower formaldehyde standard. We also find inadequate OSHA's explanation of its failure to include a "medical removal protection" requirement. We remand to the agency for reconsideration of these issues, but reject the other union claims.

BACKGROUND

Formaldehyde is a colorless, pungent gas which, when mixed with stabilizers (primarily water and alcohol) is a major industrial chemical. See 52 Fed.Reg. at 46,171-73. The chemical has four basic commercial uses: as an "intermediate" in both resin and industrial chemical production, as a bactericide or fungicide, and as a component of consumer products. Id. at 46,172. Approximately 65% of formaldehyde sold is used in the production of resins, which are used as wood binders in the construction and furniture industries. OSHA Brief at 6-7. Resins are also used as finishers on 60-85% of all fabric manufactured domestically. Id. Formaldehyde also appears, often in very small quantities, in such diverse products as plastic moldings, housewares, auto parts, sporting goods, disinfectants and cosmetics. 52 Fed.Reg. at 46,172.

OSHA first regulated workers' exposure to formaldehyde in 1972, when it imposed a PEL of 3 ppm on the basis of known risk of eye, skin and respiratory irritations. 29 C.F.R. Sec. 1910.1000, Table Z-2. Later research, particularly a rat study by the Chemical Industry Institute of Toxicology ("CIIT") in 1979, raised the specter that formaldehyde might also be a human carcinogen. See 52 Fed.Reg. at 46,169-70. The UAW and 13 other unions petitioned OSHA in 1981 to issue an Emergency Temporary Standard. See Joint Appendix ("J.A.") at 422. After OSHA resisted, the UAW sued in district court to compel OSHA either to issue an emergency standard or to start rulemaking proceedings to revise the permanent standard. The district court found OSHA's action arbitrary and ordered the agency to reconsider its decision, and this court, finding that original jurisdiction lay here, adopted a variation of the district court's order as its own. See International Union, UAW v. Donovan, 590 F.Supp. 747 (D.D.C.1984); 756 F.2d 162 (D.C.Cir.1985). OSHA published an Advance Notice of Proposed Rulemaking and then a Notice of Proposed Rulemaking, and, after accumulating the usual massive record (more than 1400 exhibits and 30,000 pages of transcript), issued the standard before us on December 4, 1987.

As noted above, the new standard establishes a 1 ppm PEL and a 2 ppm STEL. Employers who are unable to achieve these levels for the ambient air are required to provide respirators to their employees. 29 C.F.R. Sec. 1910.1048(g). They are also required to supply personal protective equipment such as gloves and suits to protect workers from exposure of their skin to formaldehyde. 29 C.F.R. Sec. 1910.1048(h)-(i). The regulations set an "action level" of 0.5 ppm, which triggers requirements for employers to initiate periodic exposure monitoring, annual medical surveillance and annual training. 29 C.F.R. Sec. 1910.1048(b), (d)(3)-(4), (k)(1)(i), (n)(2)(ii). All employers must provide medical surveillance for employees manifesting formaldehyde-related symptoms and maintain certain records, and all are subject to housekeeping requirements.

In regulating toxic materials, the Secretary is instructed by Sec. 6(b)(5) of the Act to

set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that

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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). We review under the substantial evidence standard, 29 U.S.C. Sec. 655(f), which in this setting, as courts have many times noted, does not require the agency to "support its finding ... with anything approaching scientific certainty ... so long as they are supported by a body of reputable scientific thought." Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 656, 100 S.Ct. 2844, 2871, 65 L.Ed.2d 1010 (1980) ("Benzene "). To this end, OSHA is expected to

identify relevant factual evidence, to explain the logic and the policies underlying any legislative choice, to state candidly any assumptions on which it relies, and to present its reasons for rejecting significant contrary evidence and argument.

Building and Construction Trades Department, AFL-CIO v. Brock, 838 F.2d 1258, 1264 (D.C.Cir.1988) (quoting United Steelworkers of America v. Marshall, 647 F.2d 1189, 1207 (D.C.Cir.1980)).

We first will address OSHA's rulings on formaldehyde's carcinogenic and non-carcinogenic effects at the 1 ppm PEL. Then we will turn to the asserted inadequacy of the ancillary restraints.

  1. CARCINOGENIC EFFECTS

    The Supreme Court has construed Sec. 6(b)(5) to authorize regulation only to diminish a "significant risk of harm." See Benzene, 448 U.S. at 652, 100 S.Ct. at 2869. While observing in Benzene that determination of a level of significant risk...

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