National Ass'n, Mfrs. v. Occup. Safety & Health

Decision Date11 May 2007
Docket NumberNo. 06-1122.,06-1122.
Citation485 F.3d 1201
PartiesNATIONAL ASSOCIATION OF MANUFACTURERS, et al., Petitioners v. OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION and Elaine L. Chao, Secretary of the United States Department of Labor, Respondents United States Chamber of Commerce, Intervenor for Petitioner.
CourtU.S. Court of Appeals — District of Columbia Circuit

Before: SENTELLE, HENDERSON, and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge.

Under the Occupational Safety and Health Act ("the Act"), parties adversely affected by an occupational safety or health standard may file a petition for review "at any time prior to the sixtieth day after such standard is promulgated." 29 U.S.C. § 655(f). In the 1980s, the Department of Labor issued a standard prescribing hazard disclosure requirements for the chemical industry. Among other things, the standard imposes obligations based on the "latest edition" of a list of dangerous chemicals published by a private group of industrial hygienists. When the hygienists added several chemicals to the list in 2006, industry groups filed this petition for review, arguing that publication of the privately created list effectively amended the standard without notice and comment. Because the references to the "latest edition" of the hygienists' list have been part of the regulations for some twenty years, we dismiss the petition as untimely.

I.

In order to "assure so far as possible every working man and woman in the Nation safe and healthful working conditions," 29 U.S.C. § 651(b), Congress enacted the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-78, giving "[p]rimary responsibility for the implementation of the Act . . . [to] the Secretary of Labor." Gen. Carbon Co. v. OSHRC, 860 F.2d 479, 480 (D.C.Cir.1988) (citing 29 U.S.C. § 655). In 1983, acting pursuant to this authority, the Department, through the Occupational Safety and Health Administration (OSHA), promulgated the Hazard Communication Standard (HCS), which "imposed various requirements on manufacturers aimed at ensuring that their employees were informed of the potential hazards posed by chemicals found at their workplace." Dole v. United Steelworkers, 494 U.S. 26, 29, 110 S.Ct. 929, 108 L.Ed.2d 23 (1990). Critically for present purposes, the HCS requires chemical manufacturers and importers to provide employees and customers with safety information — via labels and material safety data sheets (MSDSs) — about the hazardous chemicals they make or import. 29 C.F.R. § 1910.1200(d)-(g).

This case primarily concerns how particular chemicals are classified as hazardous. Rather than attempting to identify every hazardous chemical, the HCS "places primary responsibility for determining which products are hazardous on the chemical manufacturer or importer." United Steelworkers v. Auchter, 763 F.2d 728, 739 (3d Cir.1985). Thus, the HCS defines a chemical as hazardous if "there is statistically significant evidence based on at least one study conducted in accordance with established scientific principles that acute or chronic health effects may occur in exposed employees," 29 C.F.R. § 1910.1200(c), and requires that companies "evaluate chemicals produced in their workplaces or imported by them to determine if they are hazardous," id. § 1910.1200(d)(1). Under this "one-study" rule, a company that manufactures a particular chemical is free to decide that a scientific study about that chemical is either unreliable or inapplicable, in which case it need not treat the chemical as hazardous. Companies choosing this option risk enforcement proceedings if OSHA disagrees with their assessment. See 29 U.S.C. § 658 (authorizing the Secretary of Labor or her designee to issue citations for violations of occupational safety or health standards).

The HCS, however, takes two categories of hazard determinations out of company hands. First, it deems hazardous any substance on OSHA's list of Toxic and Hazardous Substances printed in subpart Z of 29 C.F.R. part 1910. 29 C.F.R. § 1910.1200(d)(3)(i). Second, and central to this case, the HCS provides that chemicals must be treated as hazardous if included in the "latest edition" of the "Threshold Limit Values for Chemical Substances and Physical Agents in the Work Environment" ("TLV list"), published by the American Conference of Governmental Industrial Hygienists (ACGIH). Id. § 1910.1200(d)(3)(ii). ACGIH describes itself as "an organization devoted to the administrative and technical aspects of occupational and environmental health. . . . [It] is a professional society, not a government agency." 2006 TLV List at ii. According to a "Statement of Position" printed with the 2006 TLV list, ACGIH's work reflects "scientific opinion based on a review of existing peer-reviewed scientific literature by committees of experts in public health and related sciences . . . . [of] the level of exposure that the typical worker can experience without adverse health effects." Id. at v.

ACGIH published an updated version of the TLV list on January 31, 2006. According to petitioners, the National Association of Manufacturers and other industry groups, as well as intervenor, the United States Chamber of Commerce (throughout this opinion, we shall refer to all as "NAM"), the 2006 TLV list "added five new substances [three kinds of calcium sulfate, coumaphos, and monochloroacetic acid] and their corresponding [threshold limit values] to the ACGIH TLV list." Pet'rs' Br. 12. The 2006 list also "established a [threshold limit value] for a substance (propylene . . .) previously only identified as an `asphyxiant,'" "lowered the [threshold limit values] for nine substances already on the TLV list," and "changed the substantive notations associated with three substances already on the TLV list." Id. at 12-13. NAM's members manufacture or use chemicals affected by these changes.

Believing that publication of the 2006 TLV list amended the HCS without opportunity for notice and comment, NAM filed this petition for review under 29 U.S.C. § 655(f), which authorizes challenges to occupational safety or health standards "at any time prior to the sixtieth day after such standard is promulgated." Although NAM focuses on the HCS provision that deems hazardous those chemicals included in the latest TLV list, it identifies three other references to ACGIH's publication. First, the HCS provides that a chemical mixture must be treated as hazardous if a minor component (less than one percent) of the mixture could be released in a concentration that would exceed an ACGIH threshold limit value. 29 C.F.R. § 1910.1200(d)(5)(iv). Second, the HCS requires that for any such chemical mixture, the hazardous component must be included in the mixture's MSDS. Id. § 1910.1200(g)(2)(i)(C)(2). Finally, the HCS mandates that an MSDS include: "The OSHA permissible exposure limit, ACGIH Threshold Limit Value, and any other exposure limit used or recommended by the chemical manufacturer, importer, or employer preparing the material safety data sheet, where available." Id. § 1910.1200(g)(2)(vi).

II.

NAM's argument on the merits is straightforward. The same statute that authorizes OSHA to promulgate occupational safety and health standards, 29 U.S.C. § 655, also authorizes it to modify existing standards, but requires that it first publish proposed rules in the Federal Register and allow thirty days for comment. Id. § 655(b)(2). Contending that the HCS "automatic[ally] incorporat[es]" each new TLV list upon publication, NAM argues that when the 2006...

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