American Petroleum Institute v. Occupational Safety and Health Admin.

• Decision Date: 05 October 1978
• Docket Number: 78-1677,78-1257,78-1707 and 78-1745,Nos. 78-1253,AFL-CI,I,78-1676,78-1486,s. 78-1253
• Citation: 581 F.2d 493
• Parties: 8 Envtl. L. Rep. 20,790, 6 O.S.H. Cas.(BNA) 1959, 1978 O.S.H.D. (CCH) P 23,054 The AMERICAN PETROLEUM INSTITUTE et al., Petitioners, The Manufacturing Chemists Association and the Chemical Specialties Manufacturers Association, Intervenors, v. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION et al., Respondents, Industrial Union Department,ntervenor.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 493

581 F.2d 493

8 Envtl. L. Rep. 20,790, 6 O.S.H. Cas.(BNA) 1959,

1978 O.S.H.D. (CCH) P 23,054

The AMERICAN PETROLEUM INSTITUTE et al., Petitioners,

The Manufacturing Chemists Association and the Chemical

Specialties Manufacturers Association, Intervenors, v. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION et al., Respondents, Industrial Union Department, AFL-CIO, Intervenor.

Nos. 78-1253, 78-1257, 78-1486, 78-1676, 78-1677, 78-1707

and 78-1745.

United States Court of Appeals,

Fifth Circuit.

Oct. 5, 1978.

Liskow & Lewis, Gene W. Lafitte, New Orleans, La., Kirkland, Ellis & Rowe, Edward W. Warren, Robert F. Van Voorhees, Arthur F. Sampson, III, Washington, D. C., for petitioners.

Andrew T. A. MacDonald, Washington, D. C., for Manufacturing Chemists Assoc.

Neil J. King, Washington, D. C., for American Iron & Steel Inst.

Robert L. Ackerly, Marilyn L. O'Connell, Washington, D. C., for Chemical Specialties Manufacturers Assoc.

Carin A. Clauss, Sol. of Labor, Nancy L. Southard, Allen H. Feldman, U. S. Dept. of Labor, William S. McLaughlin, Executive Secy., OSHRC, Washington, D. C., for intervenors.

Gene W. Lafitte, New Orleans, La., Edward W. Warren, Robert F. Van Voorhees, Arthur F. Sampson, III, Washington, D. C., for American Petroleum Institute, et al.

Robert P. Stranahan, Jr., Washington, D. C., for American Iron & Steel Institute, etc., et al.

Robert R. Bonczek, John F. Dickey, Wilmington, Del., for E. I. duPont de Nemours & Co.

Harold B. Scoggins, Jr., Gen. Counsel, Independent Petroleum Assoc. of America, Washington, D. C., for Independent Petroleum Institute, et al.

Charles F. Lettow, Lee C. Buchheit, Price O. Gielen, Washington, D. C., for Rubber Manufacturers Assoc., Inc., et al., and Armstrong Rubber Co., and Uniroyal, Inc.

John H. Pickering, Andrew T. A. MacDonald, Neil J. King, Washington, D. C., for Manufacturing Chemists Assoc., American Iron & Steel Institute, et al.

Robert L. Ackerly, Marilyn L. O'Connell, Washington, D. C., for Chemical Specialties Manufacturers Assoc.

Carin A. Clauss, Nancy L. Southard, Benjamin W. Mintz, Assoc. Sol., Sol. of Labor, Dept. of Labor, Washington, D. C., for Department of Labor.

William S. McLaughlin, Executive Secretary, OSHRC, Washington, D. C., for Occupational Safety and Health Adm.

George D. Palmer, III, Associate Regional Solicitor, Dept. of Labor, Birmingham, Ala., Ronald M. Gaswirth, Assoc. Regional Sol., Dept. of Labor, Dallas, Tex., Eula Bingham, Asst. Sec. of Labor, OSHRC, Dept. of Labor, Washington, D. C., for Dept. of Labor.

F. Ray Marshall, Secretary of Labor, U. S. Dept. of Labor, Washington, D. C., for Dept. of Labor.

Griffin B. Bell, Atty. Gen., Dept. of Justice, Washington, D. C., for Dept. of Justice.

Jeremiah Collins, George H. Cohen, Washington, D. C., for Industrial Union Dept. AFL-CIO.

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

Before COLEMAN, CLARK, and TJOFLAT, Circuit Judges.

CHARLES CLARK, Circuit Judge:

This case presents consolidated petitions for review ¹ of a new health standard limiting occupational exposure to benzene ² promulgated by the Occupational Safety and Health Administration of the Department of Labor (OSHA), pursuant to the Occupational Safety and Health Act, 29 U.S.C.A. § 651 Et seq. (1975) (the Act). The basis for the standard is OSHA's determination that benzene is a carcinogen for which there is no known safe level of exposure. Briefly, the standard requires employers to assure that no employee is exposed to an airborne concentration of benzene in excess of one part benzene per million parts of air (1 ppm) averaged over an eight-hour day; ³ it requires employers to assure that no employee is exposed to dermal contact with liquid benzene; ⁴ and it requires employers to assure that caution labels are affixed to all containers of products containing benzene and that the labels remain affixed when the product leaves the employer's workplace. ⁵ In addition, the standard imposes numerous compliance requirements for "each place of employment where benzene is produced, reacted, released, packaged, repackaged, stored, transported, handled, or used," with certain exceptions. These requirements include initial and continual exposure monitoring, engineering and work practice controls to reduce and maintain exposure below the permissible level, respiratory protection to prevent excessive exposure in limited situations, protective clothing and equipment to prevent dermal contact with liquid benzene, initial and continual medical surveillance, employee training programs, and retention of records regarding exposure monitoring and medical surveillance.

The petitioning producers and users of benzene and benzene-containing products principally attack the reduction of the permissible exposure limit to 1 ppm, ⁶ the prohibition of dermal contact with liquids containing benzene, and the labeling requirements for such liquids. The petitioners also attack several of the ancillary provisions of the standard, including its broad scope, the monitoring and medical surveillance requirements, and the specification of mandatory engineering and work practice controls.

I.

The Act authorizes the Secretary of Labor ⁷ to promulgate occupational safety and health standards. 29 U.S.C.A. § 655. An "occupational safety and health standard" is defined 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.A. § 652(8). In promulgating standards dealing with toxic materials, such as benzene, the Secretary is required 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. Development of standards under this subsection shall be based upon research, demonstrations, experiments, and such other information as may be appropriate. In addition to the attainment of the highest degree of health and safety protection for the employee, other considerations shall be the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws. Whenever practicable, the standard promulgated shall be expressed in terms of objective criteria and of the performance desired.

29 U.S.C.A. § 655(b)(5). When necessary or appropriate, standards may prescribe labels or other forms of warning, protective equipment, control or technological procedures, exposure monitoring, and medical examinations. 29 U.S.C.A. § 655(b)(7).

Judicial review of occupational safety and health standards is authorized by 29 U.S.C.A. § 655(f), and on review "(t)he determinations of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole." Several courts, including this one, have pointed out the problems involved in attempting to apply the traditional substantial evidence test in assessing OSHA standards resulting from informal rulemaking. E. g., Associated Industries of New York State, Inc. v. United States Department of Labor, 487 F.2d 342, 347-50 (2d Cir. 1973); Florida Peach Growers Association, Inc. v. United States Department of Labor, 489 F.2d 120, 127-29 (5th Cir. 1974); Industrial Union Department, AFL-CIO v. Hodgson, 162 U.S.App.D.C. 331, 336-340, 499 F.2d 467, 472-76 (1974); Synthetic Organic Chemical Manufacturers Association v. Brennan, 503 F.2d 1155, 1158-60 (3d Cir. 1974). The problem centers not on how to apply the test to factual findings subject to evidentiary development, but rather on how to review legislative-like policy judgments. With respect to the former, the substantial evidence standard provided in the statute clearly is applicable. See, e. g., Industrial Union Department, AFL-CIO v. Hodgson, supra, 499 F.2d at 474; American Iron & Steel Institute, et al. v. OSHA, 577 F.2d 825, No. 76-2358 Et al. (3d Cir., filed March 28, 1978). Policy choices, though not so susceptible to verification or refutation by the record, must be scrutinized nevertheless. See Associated Industries of New York, Inc. v. United States Department of Labor, supra, 487 F.2d at 348. Although the courts have differed in their articulation of the standard of review of these policy judgments, they have required the Secretary's action to be consistent with the statutory language and purpose. Synthetic Organic Chemical Manufacturers Association v. Brennan, supra, 503 F.2d at 1159. As this court stated in assessing an emergency temporary standard in Florida Peach Growers, "it seems clear that even with the required substantial evidence test, our review basically must determine whether the Secretary carried out his essentially legislative task in a manner reasonable under the state of the record before him." 489 F.2d at 129. This includes, of course, a review of whether the Secretary exercised his decisionmaking power within the limits imposed by Congress.

II.

Benzene is a ubiquitous hydrocarbon compound (C6H6) that is manufactured for a wide variety of industrial uses. ⁸ The petro-chemical and petroleum refining industries are responsible for 94 percent of the total domestic production of benzene, and the steel industry produces the remaining 6 percent primarily as a by-product of the coking process. The primary use of benzene is as a feedstock in the manufacture of other organic chemicals; it is also used in the manufacture of detergents, pesticides, solvents, and paint, and as a solvent and reactant in chemical laboratories. Industries currently using benzene include the chemical, printing, lithograph, rubber cements, rubber fabricating, ⁹ paint, varnish, stain...