Building and Const. Trades Dept., AFL-CIO v. Brock, AFL-CI

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore BUCKLEY and WILLIAMS; WILLIAMS; WEIGEL
Citation838 F.2d 1258
Parties, 18 Envtl. L. Rep. 20,507, 13 O.S.H. Cas.(BNA) 1561, 1988 O.S.H.D. (CCH) P 28,134 BUILDING AND CONSTRUCTION TRADES DEPARTMENT,etitioner, v. William E. BROCK, Secretary of Labor, Respondent, Asbestos Institute, Minnesota Mining and Manufacturing, Intervenors. AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, et al., Respondents, Asbestos Institute, Minnesota Mining and Manufacturing, Intervenors. ASBESTOS INFORMATION ASSOCIATION/NORTH AMERICA, ETC., et al., Petitioners, v. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, et al., Respondents, Asbestos Institute, Building and Construction Trades Department, Minnesota Mining and Manufacturing, Intervenors. ASBESTOS INFORMATION ASSOCIATION/NORTH AMERICA ETC., et al., Petitioners, v. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, et al., Respondents, Asbestos Institute, Building and Construction Trades Department, Minnesota Mining and Manufacturing, Intervenors.
Decision Date04 April 1988
Docket NumberAFL-CI,86-1410 and 86-1411,86-1360,P,Nos. 86-1359

Page 1258

838 F.2d 1258
267 U.S.App.D.C. 308, 18 Envtl. L. Rep. 20,507,
13 O.S.H. Cas.(BNA) 1561,
1988 O.S.H.D. (CCH) P 28,134
BUILDING AND CONSTRUCTION TRADES DEPARTMENT, AFL-CIO, Petitioner,
v.
William E. BROCK, Secretary of Labor, Respondent,
Asbestos Institute, Minnesota Mining and Manufacturing, Intervenors.
AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL
ORGANIZATIONS, Petitioner,
v.
UNITED STATES DEPARTMENT OF LABOR, et al., Respondents,
Asbestos Institute, Minnesota Mining and Manufacturing, Intervenors.
ASBESTOS INFORMATION ASSOCIATION/NORTH AMERICA, ETC., et
al., Petitioners,
v.
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, et al., Respondents,
Asbestos Institute, Building and Construction Trades
Department, Minnesota Mining and Manufacturing,
Intervenors.
ASBESTOS INFORMATION ASSOCIATION/NORTH AMERICA ETC., et al.,
Petitioners,
v.
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, et al., Respondents,
Asbestos Institute, Building and Construction Trades
Department, Minnesota Mining and Manufacturing, Intervenors.
Nos. 86-1359, 86-1360, 86-1410 and 86-1411.
United States Court of Appeals,
District of Columbia Circuit.
Argued April 24, 1987.
Decided Feb. 2, 1988.
As Amended Feb. 2 and April 4, 1988.

George H. Cohen, with whom Jeremiah A. Collins, Cynthia L. Estlund and Laurence Gold, Washington, D.C., were on the brief, for American Federation of Labor and Congress of Industrial Organizations, petitioners in Nos. 86-1359 and 86-1360.

Elihu I. Leifer, Washington, D.C., for Building and Construction Trades Dept., AFL-CIO, petitioner in No. 86-1359 and intervenor in Nos. 86-1360, 86-1410 and 86-1411.

Edward W. Warren, with whom Arthur F. Sampson, III and Timothy S. Hardy, Washington, D.C., were on the brief, for Asbestos Information Ass'n/North America, petitioner in Nos. 86-1410 and 86-1411, and intervenor in Nos. 86-1359 and 86-1360 and Asbestos Institute, intervenor in Nos. 86-1410 and 86-1411. Robert E. Holden and James A. Brown, Washington, D.C., also entered appearances.

Andrea C. Casson, Asst. Counsel for Appellate Litigation, Dept. of Labor, with whom Cynthia L. Attwood, Associate Sol. for Occupational Safety and Health, Dept. of Labor, and Joseph M. Woodward, Counsel for Appellate Litigation, Dept. of Labor, Washington, D.C., were on the brief, for respondent.

Peter G. Nash, Washington, D.C., entered an appearance for intervenor Minnesota Mining and Manufacturing Co.

Before BUCKLEY and WILLIAMS, Circuit Judges, STANLEY A. WEIGEL *, Senior District Judge, United States District Court for the Northern District of California.

Opinion for the Court filed by Circuit Judge WILLIAMS.

Opinion dissenting in part filed by Senior District Judge WEIGEL.

WILLIAMS, Circuit Judge.

In July 1986 the Occupational Health and Safety Administration of the Department of Labor ("OSHA" or the "Secretary") issued revised standards governing workers' exposure to asbestos, tremolite, anthophyllite and actinolite (together referred to simply as "asbestos") pursuant to its authority under Sec. 6(f) of the Occupational Safety and Health Act of 1970 (the "Act"), 29 U.S.C. Sec. 655(f) (1982). 51 Fed.Reg. 22,612 et seq. (1986), codified at 29 C.F.R. Sec. 1910.1001 (1987) (general industry standards) and 29 C.F.R. Sec. 1926.58 (1987) (construction industry standards).

In these consolidated appeals, the Asbestos Information Association/North America and other petitioners representing industry (collectively referred to as the "AIA") attack the Secretary's findings that asbestos under the prior permissible exposure level ("PEL") caused significant risk, question the technological feasibility of the

Page 1262

new PEL, challenge the rule against the spraying of asbestos-containing products, and assert that the record does not support OSHA's decision not to require smoking-related programs and controls. Two unions, the American Federation of Labor and Congress of Industrial Organizations ("AFL-CIO") and the Building and Construction Trades Department, AFL-CIO ("BCTD"), maintain that a lower PEL is technologically feasible for most industry subgroups, and argue that a short term exposure limit ("STEL") is feasible and would further reduce health risks. BCTD further claims that the Secretary acted unlawfully in refusing to adopt their recommendations relating to many subsidiary aspects of the rule, including "action levels," compliance methods, monitoring, reporting, warnings, medical surveillance, questionnaires, records, hygiene, and respirator use.

We uphold the Secretary's findings concerning significant risk and the feasibility of the new PEL, and find many of BCTD's challenges to details within the various provisions to be without merit. We cannot, however, find substantial evidence supporting several of the agency's conclusions: its categorical ban on the spraying of asbestos-containing products and its decisions not to adopt a lower PEL for certain major industrial subgroups, a STEL, smoking-related regulations, and some of BCTD's suggested safety measures. We therefore remand the case to the agency for reconsideration of these issues.

I. BACKGROUND

Asbestos is a generic term applied to a number of naturally occurring hydrated, fibrous, silicate minerals. Final Regulatory Impact and Regulatory Flexibility Analysis of the Revised Asbestos Standard (OSHA Office of Regulatory Analysis, June 11, 1986) ("Impact Analysis "), Joint Appendix ("J.A.") at 1541, 1542. It is characterized by flexibility, hightensile strength, and resistance to heat and other destructive conditions. Id. Asbestos is classified into different grades by fiber length and resilience. Id. at 1543. The longest and strongest fibers are generally used to make textiles, electrical insulation, and pharmaceutical and beverage filters. Id. Medium length fibers are used in the production of asbestos cement (A/C) pipe, A/C sheet, clutch facings, brake linings, asbestos paper, packings, gaskets and pipe coverings. Id. The shorter fibers are used primarily as reinforcers in plastics, floor tiles, coatings and compounds, special papers and roofing felts. Id.

Unfortunately, asbestos creates very serious health hazards. During the production of asbestos products, and in their later handling and use, tiny asbestos fibers are released into the air. Impact Analysis, J.A. at 1552. They are also released when old asbestos-based insulation is removed or disturbed in the demolition or repair of buildings and ships. Id. at 1562, 1565, 1567. When inhaled, the fibers settle in the lungs and often travel to other organs.

Inhalation of the fibers causes, or is at least causally related to, a number of serious and often fatal diseases. These include lung cancer, asbestosis (a chronic and disabling lung disease), mesothelioma (cancer of the lining of the chest cavity or abdomen), and gastrointestinal cancer. 51 Fed.Reg. at 22,61 5/3. It is also associated with an increased risk of cancer of the esophagus, stomach, colon, kidneys, larynx, pharynx, and buccal cavity. Id. at 22,61 6/1. In the preamble to the standards here at issue, the Secretary emphasized that "OSHA is aware of no instance in which exposure to a toxic substance has more clearly demonstrated detrimental health effects on humans than has asbestos exposure." Id. at 22,615/3.

In June 1972 OSHA issued a standard which established an immediate PEL of 5 fibers per cubic centimeter (f/cc) and a ceiling of 10 f/cc. (A cubic centimeter is one-millionth the size of a cubic meter. Thus 5 f/cc means 5,000,000 fibers per cubic meter. The convention appears to be to express the limit in f/cc, even though this conjures up a far less vivid image than does the measurement in fibers per meter.) The rule also provided for reduction of the PEL to 2 f/cc as of July 1976. We substantially upheld the standard in Industrial Union Department, AFL-CIO v. Hodgson, 499 F.2d 467 (D.C.Cir.1974). This initial standard was based primarily on evidence of a causal relationship between asbestos inhalation and asbestosis. See 51 Fed.Reg. at 22,614/2.

In 1975, based on new evidence of the carcinogenic properties of asbestos and advances in the technology of monitoring and protection, OSHA proposed a new rule that would reduce the PEL to 0.5 f/cc and the ceiling limit to 5 f/cc. 40 Fed. Reg. 47,652 (1975). The proposal was based on the premise that if (as the agency believed) there was no level of asbestos in the workplace that would be absolutely safe, it was authorized and required to set a PEL as low as was economically and technologically feasible. 51 Fed.Reg. at 22,614/2. The Supreme Court rejected this concept of absolute safety in Industrial

Page 1263

Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 639-52, 100 S.Ct. 2844, 2862-69, 65 L.Ed.2d 1010 (1980) ("Benzene "), in favor of the view that the Secretary may promulgate standards only "where a significant risk of harm exists." Id. at 652, 100 S.Ct. at 2869. The 1975 proposal seems to have died.

In April 1984, acting in part in response to recommendations of the National Institute for Occupational Safety and Health (NIOSH), see NIOSH, Revised Recommended Asbestos Standard (Dec. 1976), J.A. at 119, and a NIOSH/OSHA task force, 51 Fed.Reg. at 22,614/3, OSHA issued a notice of proposed rulemaking suggesting adoption of either a 0.5 f/cc or a 0.2 f/cc PEL, 49 Fed.Reg. 14,116/2 (1984), and raising the question of whether a 0.1 f/cc PEL might be feasible. Id. at 14,117/1. OSHA held public hearings and received written submissions before and after the hearings. The process generated a record with over 340 exhibits and approximately 55,000 pages. As a result of its analysis, OSHA made a finding of a "significant risk" at the then-prevailing standard of 2 f/cc, id. at 22,647/3, a finding that is a prerequisite to more stringent regulation under the plurality opinion in Benzene, 448 U.S. at 614-15, 100 S.Ct. at 2849-50. See also American Textile Mfrs....

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73 practice notes
  • Part II
    • United States
    • Federal Register February 28, 2006
    • February 28, 2006
    ...the diverse group of industries and operations covered by the standard. See Building & Constr. Trades Dep't v. U.S. Dep't of Labor, 838 F.2d 1258, 1273 (D.C. Cir. 1988) (administrative difficulties, if appropriately spelled out, could justify a decision to select a uniform Requiring OSH......
  • Safety and health standards, etc.: Employer payment for personal protective equipment,
    • United States
    • Federal Register March 31, 1999
    • March 31, 1999
    ...protection if the standard's exposure limits will not eliminate significant risk. Building and Constr. Trades Dept. AFL-CIO v. Brock, 838 F.2d 1258, 1271 (D.C. Cir. 1988). (Remand to consider including in asbestos standard additional provisions to reduce smoking-related asbestos risks); Nat......
  • Humane Soc'y of U.S. v. Jewell, Civil Action No. 13–186 BAH
    • United States
    • United States District Courts. United States District Court (Columbia)
    • December 19, 2014
    ...Sara Lee Corp. v. Am. Bakers Ass'n Ret. Plan, 512 F.Supp.2d 32, 37 (D.D.C.2007) (quoting Bldg. & Constr. Trades Dep't, AFL–CIO v. Brock, 838 F.2d 1258, 1266 (D.C.Cir.1988) ). “Deferring as appropriate to the agency's expertise and looking only for ‘a rational connection between the facts fo......
  • Cmty. Health Sys., Inc. v. Burwell, Civil Action No. 14–1432 (BAH)
    • United States
    • U.S. District Court — District of Columbia
    • July 7, 2015
    ...Sara Lee Corp. v. Am. Bakers Ass'n Ret. Plan, 512 F.Supp.2d 32, 37 (D.D.C.2007) (quoting Bldg. & Constr. Trades Dep't, AFL–CIO v. Brock, 838 F.2d 1258, 1266 (D.C.Cir.1988) ). Yet, "courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decisionmaking.......
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64 cases
  • Humane Soc'y of U.S. v. Jewell, Civil Action No. 13–186 BAH
    • United States
    • United States District Courts. United States District Court (Columbia)
    • December 19, 2014
    ...Sara Lee Corp. v. Am. Bakers Ass'n Ret. Plan, 512 F.Supp.2d 32, 37 (D.D.C.2007) (quoting Bldg. & Constr. Trades Dep't, AFL–CIO v. Brock, 838 F.2d 1258, 1266 (D.C.Cir.1988) ). “Deferring as appropriate to the agency's expertise and looking only for ‘a rational connection between the facts fo......
  • Cmty. Health Sys., Inc. v. Burwell, Civil Action No. 14–1432 (BAH)
    • United States
    • U.S. District Court — District of Columbia
    • July 7, 2015
    ...Sara Lee Corp. v. Am. Bakers Ass'n Ret. Plan, 512 F.Supp.2d 32, 37 (D.D.C.2007) (quoting Bldg. & Constr. Trades Dep't, AFL–CIO v. Brock, 838 F.2d 1258, 1266 (D.C.Cir.1988) ). Yet, "courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decisionmaking.......
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    ...Sara Lee Corp. v. Am. Bakers Ass‘n Ret. Plan, 512 F.Supp.2d 32, 37 (D.D.C.2007) (quoting Bldg. & Constr. T rades Dep‘t, AFL–CIO v. Brock, 838 F.2d 1258, 1266 (D.C.Cir.1988)). “Deferring as appropriate to the agency's expertise and looking only for ‘a rational connection between the facts fo......
  • Rios v. WASH. DEPT. OF LABOR AND INDUSTRIES, No. 70294-2.
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    ...the worker's "material impairment of health." See ATMI, 452 U.S. at 513 n. 32, 101 S.Ct. 2478; Bldg. & Const. Trades Dep't v. Brock, 838 F.2d 1258, 1269 (D.C.Cir.1988) (concluding that "it is [the Secretary's] duty to keep adding measures so long as they afford benefit and are feasible"). I......
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