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

• Citation: 65 L.Ed.2d 1010,100 S.Ct. 2844,448 U.S. 607
• Decision Date: 02 July 1980
• Docket Number: 78-1036,Nos. 78-911,P,AFL-CI,s. 78-911
• Parties: INDUSTRIAL UNION DEPARTMENT,etitioner, v. AMERICAN PETROLEUM INSTITUTE et al. Ray MARSHALL, Secretary of Labor, Petitioner, v. AMERICAN PETROLEUM INSTITUTE et al
• Court: United States Supreme Court

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 § 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 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 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

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. The principal question is whether such a showing is a sufficient basis...