Industrial Union Department v. American Petroleum Institute Marshall v. American Petroleum Institute, AFL-CI

CourtUnited States Supreme Court
Writing for the CourtSTEVENS; POWELL; BURGER; POWELL; REHNQUIST; Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN
Citation65 L.Ed.2d 1010,100 S.Ct. 2844,448 U.S. 607
Decision Date02 July 1980
Docket Number78-1036,Nos. 78-911,P,AFL-CI
PartiesINDUSTRIAL UNION DEPARTMENT,etitioner, v. AMERICAN PETROLEUM INSTITUTE et al. Ray MARSHALL, Secretary of Labor, Petitioner, v. AMERICAN PETROLEUM INSTITUTE et al

448 U.S. 607
100 S.Ct. 2844
65 L.Ed.2d 1010
INDUSTRIAL UNION DEPARTMENT, AFL-CIO, Petitioner,

v.

AMERICAN PETROLEUM INSTITUTE et al. Ray MARSHALL, Secretary of Labor, Petitioner, v. AMERICAN PETROLEUM INSTITUTE et al.

Nos. 78-911, 78-1036.
Argued Oct. 10, 1979.
Decided July 2, 1980.
Syllabus

The Occupational Safety and Health Act of 1970 (Act) delegates broad authority to the Secretary of Labor (Secretary) to promulgate standards to ensure safe and healthful working conditions for the Nation's workers (the Occupational Safety and Health Administration (OSHA) being the agency responsible for carrying out this authority). Section 3(8) of the Act defines an "occupational safety and health standard" as a standard that is "reasonably necessary or appropriate to provide safe or healthful employment." Where toxic materials or harmful physical agents are concerned, a standard must also comply with § 6(b)(5), which directs the Secretary 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." When the toxic material or harmful physical agent to be regulated is a carcinogen, the Secretary has taken the position that no safe exposure level can be determined and that § 6(b)(5) requires him to set an exposure limit at the lowest technologically feasible level that will not impair the viability of the industries regulated. In this case, after having determined that there is a causal connection between benzene (a toxic substance used in manufacturing such products as motor fuels, solvents, detergents, and pesticides) and leukemia (a cancer of the white blood cells), the Secretary promulgated a standard reducing the permissible exposure limit on airborne concentrations of benzene from the consensus standard of 10 parts benzene per million parts of air (10 ppm) to 1 ppm, and prohibiting dermal contact with solutions containing benzene. On pre-enforcement review, the Court of Appeals held the standard invalid because it was based on findings unsupported by the administrative record. The court concluded that OSHA had exceeded its standard-setting authority because it had not been shown that the 1 ppm exposure limit was "reasonably necessary or appropriate to provide safe and healthful employment" as required by § 3(8), and that

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§ 6(b)(5) did not give OSHA the unbridled discretion to adopt standards designed to create absolutely risk-free workplaces regardless of cost.

Held : The judgment is affirmed. Pp. 630-662; 667-671; 672-688.

581 F.2d 493, 5th Cir., affirmed.

Mr. Justice STEVENS, joined by Mr. Chief Justice BURGER, Mr. Justice STEWART, and Mr. Justice POWELL, concluded that the standard in question is invalid. Pp. 630-652, 658-659.

(a) The Court of Appeals was correct in refusing to enforce the 1 ppm exposure limit on the ground that it was not supported by appropriate findings. OSHA's rationale for lowering the permissible exposure limit from 10 ppm to 1 ppm was based, not on any finding that leukemia has ever been caused by exposure to 10 ppm of benzene and that it will not be caused by exposure to 1 ppm, but rather on a series of assumptions indicating that some leukemia might result from exposure to 10 ppm and that the number of cases might be reduced by lowering the exposure level to 1 ppm. Pp. 630-638.

(b) By empowering the Secretary to promulgate standards that are "reasonably necessary or appropriate to provide safe or healthful employment and places of employment" as required by § 3(8), the Act implies that, before promulgating any standard, the Secretary must make a finding that the workplaces in question are not safe. But "safe" is not the equivalent of "risk-free." A workplace can hardly be considered "unsafe" unless it threatens the workers with a significant risk of harm. Therefore, before the Secretary can promulgate any permanent health or safety standard, he must make a threshold finding that the place of employment is unsafe in the sense that significant risks are present and can be eliminated or lessened by a change in practices. This requirement applies to permanent standards promulgated pursuant to § 6(b)(5), as well as to other types of permanent standards, there being no reason why § 3(8)'s definition of a standard should not be deemed incorporated by reference into § 6(b)(5). Moreover, requiring the Secretary to make a threshold finding of significant risk is consistent with the scope of his regulatory power under § 6(b)(5) to promulgate standards for "toxic materials" and "harmful physical agents." This interpretation is supported by other provisions of the Act, such as § 6(g), which requires the Secretary, in determining the priority for establishing standards, to give due regard to the urgency of the need for mandatory safety and health standards for particular industries or workplaces, and § 6(b)(8), which requires the Secretary, when he substantially alters an

Page 609

existing consensus standard, to explain how the new rule will "better effectuate" the Act's purposes. Pp. 639-646.

(c) The Act's legislative history also supports the conclusion that Congress was concerned not with absolute safety, but with the elimination of significant harm. Pp. 646-652.

(d) Where the Secretary relied on a special policy for carcinogens that imposed the burden on industry of proving the existence of a safe level of exposure, thereby avoiding his threshold responsibility of establishing the need for more stringent standards, he exceeded his power. Pp. 658-659.

Mr. Justice STEVENS, joined by Mr. Chief Justice BURGER and Mr. Justice STEWART, also concluded that:

1. The burden was on OSHA 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. Here, OSHA did not even attempt to carry such burden of proof. Imposing such a burden on OSHA will not strip it of its ability to regulate carcinogens, nor will it require it to wait for deaths to occur before taking any action. The requirement that a "significant" risk be identified is not a mathematical straitjacket; OSHA is not required to support its finding that a significant risk exists with anything approaching scientific certainty; and the record in this case and OSHA's own rulings on other carcinogens indicate that there are a number of ways in which OSHA can make a rational judgment about the relative significance of the risks associated with exposure to a particular carcinogen. Pp. 652-658.

2. OSHA did not make the required finding with respect to the dermal contact ban that the ban was "reasonably necessary and appropriate" to remove a significant risk of harm from such contact, but rather acted on the basis of the absolute, no-risk policy that it applies to carcinogens under the assumptions not only benzene in small doses is a carcinogen but also that it can be absorbed through the skin in sufficient amounts to present a carcinogenic risk. These assumptions are not a proper substitute for the findings of significant risk of harm required by the Act. Pp. 659-662.

Mr. Justice POWELL, agreeing that neither the airborne concentration standard nor the dermal contact standard satisfied the Act's requirements, would not hold that OSHA did not even attempt to carry its burden of proof on the threshold question whether exposure to benzene at 10 ppm presents a significant risk to human health. He concluded that, even assuming OSHA had met such burden, the Act also requires OSHA to determine that the economic effects of its standard bear a

Page 610

reasonable relationship to the expected benefits. A standard is neither "reasonably necessary" nor "feasible," as required by the Act, if it calls for expenditures wholly disproportionate to the expected health and safety benefits. Here, although OSHA did find that the "substantial costs" of the benzene regulations were justified, the record contains neither adequate documentation of this conclusion nor any evidence that OSHA weighed the relevant considerations. The agency simply announced its finding of cost-justification without explaining the method by which it determined that the benefits justified the costs and their economic effects. Pp. 667-671.

Mr. Justice REHNQUIST would invalidate, as constituting an invalid delegation of legislative authority to the Secretary, the relevant portion of § 6(b)(5) of the Act as it applies to any toxic substance or harmful physical agent for which a safe level is, according to the Secretary, unknown or otherwise "infeasible." In the case of such substances, the language of § 6(b)(5) gives the Secretary absolutely no indication where on the continuum of relative safety he should set the standard. Nor is there anything in the legislative history, the statutory context, or any other source traditionally examined by this Court that provides specificity to the feasibility criterion in § 6(b)(5). Pp. 672-688.

William H. Alsup, Washington, D. C., for petitioner in No. 78-1036.

George H. Cohen, Washington, D. C., for petitioner in No. 78-911.

Edward W. Warren and

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Charles F. Lettow, Washington, D. C., for respondents.

Mr. Justice STEVENS announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE and Mr. Justice STEWART joined and in Parts I, II, III-A, III-B, III-C and III-E of which Mr. Justice POWELL joined.

The Occupational Safety and Health Act of 1970 (Act), 84 Stat. 1590, 29 U.S.C. § 651 et seq., was enacted for the purpose of ensuring safe and healthful working conditions for every working man and woman in the Nation. This litigation concerns a standard promulgated by the Secretary of Labor to regulate occupational exposure to benzene, a substance which has been shown to cause cancer at high exposure levels....

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334 practice notes
  • Part II
    • United States
    • Federal Register February 28, 2006
    • February 28, 2006
    ...that such risk can be eliminated or lessened by a change in practices. Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 641-42 (1980) (plurality opinion) (``The Benzene case''). The Court further observed that what constitutes ``significant risk'' is ``not a ma......
  • Safety and health standards, etc.: Employer payment for personal protective equipment,
    • United States
    • Federal Register March 31, 1999
    • March 31, 1999
    ...Ass'n, 773 F.2d at 1451-1452. Other Statutory Considerations In Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980) (Benzene), the Supreme Court ruled that, before OSHA can issue a new standard, the Agency must find that the hazard being regulated poses......
  • Part II
    • United States
    • Federal Register September 30, 2009
    • September 30, 2009
    ...and appropriate to remedy a significant risk of material health impairment. Industrial Union Dep't v. American Petroleum Institute, 448 U.S. 607, 642 (1980) (``Benzene''). ``significant risk'' determination constitutes a finding that, absent the change in practices mandated by the standard,......
  • Inst. for Fisheries Res. v. Hahn, Case No. 16-cv-01574-VC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • December 19, 2019
    ...the health benefits of a drug against its environmental costs. Cf. Industrial Union Department, AFL-CIO v. American Petroleum Institute , 448 U.S. 607, 645–46, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980) (plurality opinion). Furthermore, to return to the unguided-missile concept from the previou......
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284 cases
  • Inst. for Fisheries Res. v. Hahn, Case No. 16-cv-01574-VC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • December 19, 2019
    ...the health benefits of a drug against its environmental costs. Cf. Industrial Union Department, AFL-CIO v. American Petroleum Institute , 448 U.S. 607, 645–46, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980) (plurality opinion). Furthermore, to return to the unguided-missile concept from the previou......
  • Big Time Vapes, Inc. v. Food & Drug Admin., No. 19-60921
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 25, 2020
    ...of War to recover "excessive profits" from private businesses in times of crisis).19 Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst. , 448 U.S. 607, 686–87, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980) (Rehnquist, J., concurring in the judgment).20 See Gundy , 139 S. Ct. at 2131 (Alito, J., co......
  • Ross v. Federal Highway Admin., Civil Action No. 97-2132-GTV.
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    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • July 17, 1997
    ...Ins. Co., 463 U.S. 29, 50, 103 S.Ct. 2856, 2870, 77 L.Ed.2d 443 (1983)); see Industrial Union Dep't, AFLCIO v. American Petroleum Inst., 448 U.S. 607, 631 n. 31, 100 S.Ct. 2844, 2858, 65 L.Ed.2d 1010 (1980). According to the administrative record before the court, federal defendants withdre......
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    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • June 18, 2021
    ...and governing constitutional law to a ritual, meek recitation. Concurring in Industrial Union Dept. v. American Petroleum Institute, 100 S. Ct. 2844 (1980), and dissenting with Chief Justice Burger in American Textile Manufacturers Institute v. Donovan, 101 S. Ct. 2478 (1981), Justice Rehnq......
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    • United States
    • Mondaq United States
    • May 12, 2022
    ...1187, 117th Cong. ' 402(8) (2021). However, the Senate has not yet passed such a bill. 14 Indus. Union Dep't, AFL-CIO v. Am. Petr. Inst., 448 U.S. 607, 685 (1980) (Rehnquist, J., concurring) (major policy decisions must be made by Congress and the president in the legislative process, not d......
9 books & journal articles
  • Introduction to the CWA and the administrative process
    • United States
    • Introduction to environmental law: cases and materials on water pollution control - 2d Edition
    • July 23, 2017
    ...on plain meaning undermines the remedial purpose of the statute. See, e.g., Industrial Union Dep’t AFL-CIO v. American Petroleum Inst. , 448 U.S. 607 (1980). It can be said that for every “rule” there is an equal and opposite “rule.” See C. Sands, Statutes and Statutory Construction (4th ed......
  • New Wine in Old Bottles: Distorting the Antiquities Act to Aggrandize Executive Power
    • United States
    • Environmental Law Reporter Nbr. 48-4, April 2018
    • April 1, 2018
    ...the Act did not delegate to the president the legislative power to 66. See, e.g. , Industrial Union Dep’t v. American Petroleum Inst., 448 U.S. 607, 646, 10 ELR 20489 (1980); National Cable Television Ass’n v. United States, 415 U. S. 336, 342 (1974). 67. See supra note 57. 68. Schechter Po......
  • A 'Cost-Benefit State'? Reports of Its Birth Have Been Greatly Exaggerated
    • United States
    • Environmental Law Reporter Nbr. 46-11, November 2016
    • November 1, 2016
    ...§7411(a)(1). 67. Id. §7411(b)(1)(A). 68. Industrial Union Dep’t, Am. Fed’n of Labor-Cong. of Indus. Orgs. v. American Petroleum Inst., 448 U.S. 607, 642, 10 ELR 20489 (1980). 69. Industrial Union Dep’t , 448 U.S. at 645. Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprint......
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    • Introduction to environmental law: cases and materials on water pollution control - 2d Edition
    • July 23, 2017
    ...18 Industrial Union Dep’t AFL-CIO v. American Petroleum Inst., 448 U.S. 607 (1980) .................................................................................................................. 166 International Paper Co. v. Ouellette, 479 U.S. 481, 17 ELR 20327 (1987) .......................
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