Alabama Power Co. v. Occupational Safety & Health Admin.

• Citation: 89 F.3d 740
• Decision Date: 26 July 1996
• Docket Number: N,No. 94-3065,AFL-CI,U,94-3065
• Parties: 17 O.S.H. Cas. (BNA) 1675 ALABAMA POWER COMPANY, Georgia Power Company, Gulf Power Company, Mississippi Power Company, Savannah Electric and Power Company, Petitioners, v. OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, United States Department of Labor, Respondents, International Brotherhood of Electrical Workers,tility Workers of America,ational Rural Electric Cooperative Assoc., Intervenors.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 740

89 F.3d 740

17 O.S.H. Cas. (BNA) 1675

ALABAMA POWER COMPANY, Georgia Power Company, Gulf Power

Company, Mississippi Power Company, Savannah

Electric and Power Company, Petitioners, v. OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, United States

Department of Labor, Respondents,

International Brotherhood of Electrical Workers, AFL-CIO,

Utility Workers of America, AFL-CIO, National

Rural Electric Cooperative Assoc., Intervenors.

No. 94-3065.

United States Court of Appeals,

Eleventh Circuit.

July 26, 1996.

Mark Booz, Troutman Sanders, Atlanta, GA, for Petitioners.

Charles F. James, Office of the Solicitor, U.S. Dept. Labor, Occupational Safety & Health Admin., Washington, DC, for Respondents.

Elihu I. Leifer, Stephen E. Coye, Sherman, Dunn, Cohen, Leifer & Yellig, P.C., Washington, DC, for Intervenor IBEW.

Arthur J. Chmiel, Monongahela Power Co., Legal Services, Fairmont, WV, for Amicus Monongahela Power Co., The Potomac Edison Co., and the West Penn Power Company (The Companies).

Petition for Review of an Order of the Occupational Safety and Health Review Commission.

Before CARNES, Circuit Judge, and FAY and GIBSON ^*, Senior Circuit Judges.

FAY, Senior Circuit Judge:

This action arises from the passage of a standard by the Occupational Safety and Health Administration (OSHA) governing Electric Power Generation, Transmission and Distribution; Electrical Protective Equipment. 59 Fed.Reg. 4320-4476 (1994) (codified at 29 C.F.R. § 1910.269) (the "Standard"). Specifically, petitioners challenge a single provision of the Standard, namely 29 C.F.R. § 1910.269(1)(6)(iii) (the "apparel provision") which addresses clothing requirements for those employees who may be exposed to the hazards of flames or electric arcs. We find that OSHA provided adequate notice and opportunity for comment with regard to the apparel provision and that the inclusion of the apparel provision within the text of the Standard was supported by substantial evidence. Accordingly, the petition for review is DENIED.

I. BACKGROUND

The Standard at issue arose as a result of a cooperative initiative between the Edison Electric Institute (EEI), a major trade association of investor-owned electric utilities, and the International Brotherhood of Electrical Workers (IBEW), a major union representing electric utility workers. 59 Fed.Reg. 4322. EEI and IBEW presented OSHA with their versions of a draft standard providing for comprehensive regulation of the electric utility industry. Id. OSHA utilized the drafts submitted by EEI and IBEW as one of the bases for the development of a proposed standard regulating the industry. Id. On January 31, 1989, OSHA published a draft of the Standard with a Notice of Proposed Rulemaking. 54 Fed.Reg. 4974.

The initial draft standard did not contain a provision regarding apparel. However, the January 31, 1989 notice contained a statement that OSHA was requesting comments on the desirability of adopting requirements regarding the types of clothing fabrics worn by electric utility workers due to the fact that certain fabrics are easily ignited and can cause severe burns. 54 Fed.Reg. 4990. Further, OSHA requested comments on the costs and benefits of any suggested provisions regarding apparel. Id.

Interested parties were given until May 1, 1989, and then again until June 1, 1989 to comment on the proposed Standard. On July 20, 1989, OSHA issued a Notice of Hearing on the Standard. 54 Fed.Reg. 30401. In it OSHA noted that it was considering a prohibition of any clothing fabrics that would substantially increase the severity of an employee's injury from arcing electrical equipment, and requested additional comment on flammable fabrics. Id. at 30404. Eleven days of public hearings were held and the submission of post-hearing briefs and comments were permitted until March 1, 1991.

On January 31, 1994, OSHA issued the final Standard. The apparel provision provides in part:

The employer shall ensure that each employee who is exposed to the hazards of flames or electric arcs does not wear clothing that, when exposed to flames or electric arcs, could increase the extent of injury that would be sustained by the employee.

59 Fed.Reg. 4445. A note further provides that acetate, nylon, polyester, and rayon, either alone or in blends, are prohibited unless the employer can demonstrate that the fabric has either been treated to withstand possible conditions or worn in a manner which eliminates the hazard involved. Id.

In its preamble explanation of the Standard's apparel provision, OSHA noted that "[n]atural fabrics, such as 100 percent cotton or wool, and synthetic materials that are flame resistant or flame retardant are acceptable under the final rule." 59 Fed.Reg. 4389. OSHA also acknowledged that a videotape produced by the Duke Power Company in Charlotte, NC, which reported on tests performed on various clothing materials, was a predominant basis upon which the apparel provision was promulgated. Specifically, OSHA stated that "[t]he requirement is intended to prohibit the types of fabrics shown in the [video] to be expected to cause more severe injuries than would otherwise be anticipated." Id.

On June 30, 1994, in response to certain industry representative's questions concerning the preamble's clarity with regard to those natural fabrics which would be deemed acceptable under the apparel provision, OSHA published what it considered to be a "Correction of the Preamble", which was intended to clarify the January 31 preamble. This "correction" provides, inter alia:

Natural fabrics, such as 100 percent cotton or wool, are acceptable under the final rule, provided they are of such weight and construction as not to ignite under the conditions to which an employee might be exposed. (For example, cotton fabrics of 11 ounces or [more] generally will not ignite when exposed to an arc the energy of which is approximated by a 3800-ampere, 12-inch arc lasting for 10 cycles ...). Synthetic materials that are flame resistant or flame retardant are acceptable under the final rule.

59 Fed.Reg. 33661. In its explanation of the "correction" OSHA noted that the clarification did not revise either the January 31, 1994 rule with regard to apparel, nor the note following it which specified the prohibited fabrics. 59 Fed.Reg. 33659. Shortly thereafter, with regard to the apparel provision, petitioners filed a Petition for Review before this court.

II. STANDARD OF REVIEW

The burden of proving the validity of an occupational safety and health standard rests with OSHA. Industrial Union Dept., AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 653, 100 S.Ct. 2844, 2869-70, 65 L.Ed.2d 1010 (1980); AFL-CIO v. OSHA, 965 F.2d 962, 973 (11th Cir.1992). Determinations made by OSHA shall be conclusive if supported by substantial evidence based on the entire record. 29 U.S.C. 655(f). " 'Substantial evidence' is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " AFL-CIO v. OSHA, 965 F.2d at 970 (quoting American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S 490, 522, 101 S.Ct. 2478, 2497, 69 L.Ed.2d 185 (1981)). A 'harder look' at OSHA's action is required than if we were reviewing it under the arbitrary and capricious standard which is the more deferential standard applicable to agencies regulated by the Administrative Procedure Act. AFL-CIO v. OSHA, 965 F.2d at 970. In considering the record as a whole, reviewing courts must consider both supportive and countervailing evidence. Id. Nevertheless, the court "must uphold [OSHA's] 'choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.' " AFL-CIO v. OSHA, 965 F.2d at 970 (quoting AFL-CIO v. Marshall, 617 F.2d 636, 649, n. 44 (D.C.Cir.1979). "OSHA's policy decisions must be: (1) consistent with the language of and purpose of the OSH Act, and (2) reasonable under the rulemaking record." AFL-CIO v. OSHA, 965 F.2d at 970. In addition, the " 'validity of an agency's determination must be judged on the basis of the agency's stated reasons for making that determination.' " AFL-CIO v. OSHA, 965 F.2d at 970. (quoting AFL-CIO v. American Petroleum Inst., 448 U.S. at 631, n. 31, 100 S.Ct. at 2858, n. 31).

III. ANALYSIS

The Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678, was enacted in order "to assure so far as possible every working man and woman in the Nation safe and healthful work conditions ..." 29 U.S.C. § 651(b). To achieve this purpose, the Secretary of Labor (OSHA) is authorized to "promulgate, modify, or revoke any occupational safety or health standard.... and shall afford interested persons a period of thirty days after publication to submit written data or comments." 29 U.S.C. § 655(b); see AFL-CIO v. OSHA, 965 F.2d at 968-969.

A. Notice and Opportunity to Comment

Petitioners challenge the Standard at issue on both procedural and substantive grounds. ¹ Petitioners first argue that OSHA failed to provide notice and an adequate opportunity for comment with regard to the June 30, 1994 "revision" of the apparel provision. ² Apparently, Petitioners contend that the apparel provision, as originally issued, permitted all natural fabrics, regardless of weight, whereas the "correction" was in effect a "modification" because it did not permit all natural fabrics, but rather specified only certain weights of natural fabrics it deemed acceptable.

As previously noted, OSHA is required to provide the public an opportunity to comment with regard to standards that are modified. 29 U.S.C. § 655(b)(2). Nevertheless, "[w]e do not read § 655(b)(2) to invalidate a clarification of this sort, issued relatively soon after the issuance of a standard." International Union, UAW v. OSHA, 938 F.2d 1310, 1325 (D.C.Cir.1991) (technical correction notice issued 13 months after final rule issued). In commenting on certain weights of natural fabric OSHA did...