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ARKWRIGHT MILLS, PETITIONER, v. F. RAY MARSHALL, SECRETARY, DEPARTMENT OF LABOR, AND EULA BINGHAM, ASSISTANT SECRETARY OF LABOR FOR OCCUPATIONAL SAFETY AND HEALTH, RESPONDENTS. SPARTAN MILLS, PETITIONER, v. F. RAY MARSHALL, SECRETARY, DEPARTMENT OF LABOR, AND EULA BINGHAM, ASSISTANT SECRETARY OF LABOR FOR OCCUPATIONAL SAFETY AND HEALTH, RESPONDENTS. BLAIR MILLS, INC., PETITIONER, v. F. RAY MARSHALL, SECRETARY, DEPARTMENT OF LABOR, AND EULA BINGHAM, ASSISTANT SECRETARY OF LABOR FOR OCCUPATIONAL SAFETY AND HEALTH, RESPONDENTS. HERMITAGE, INC., PETITIONER, v. F. RAY MARSHALL, SECRETARY, DEPARTMENT OF LABOR, AND EULA BINGHAM, ASSISTANT SECRETARY OF LABOR FOR OCCUPATIONAL SAFETY AND HEALTH, RESPONDENTS. DAN RIVER, INC., PETITIONER, v. DR. EULA BINGHAM, ASSISTANT SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR AND OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, RESPONDENTS. CONE MILLS CORPORATION, PETITIONER, v. RAY MARSHALL, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, AND EULA BINGHAM, ASSISTANT SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR AND OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, RESPONDENTS. MAYFAIR MILLS, PETITIONER, v. F. RAY MARSHALL, SECRETARY, DEPARTMENT OF LABOR, AND EULA BINGHAM, ASSISTANT SECRETARY OF LABOR FOR OCCUPATIONAL SAFETY AND HEALTH, RESPONDENTS. SPRINGS MILLS, INC., PETITIONER, v. RAY MARSHALL, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, DR. EULA BINGHAM, ASSISTANT SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR AND OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, RESPONDENTS. RIEGEL TEXTILE CORPORATION, PETITIONER, v. RAY MARSHALL, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, EULA BINGHAM, ASSISTANT SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, AND THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, RESPONDENTS. FIELDCREST MILLS, INC., PETITIONER, v. F. RAY MARSHALL, SECRETARY OF LABOR, AND DR. EULA BINGHAM, ASSISTANT SECRETARY OF LABOR FOR OCCUPATIONAL SAFETY AND HEALTH, AND THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, RESPONDENTS. AMERICAN COTTON SHIPPERS ASSOCIATION, PETITIONER, v. DR. EULA BINGHAM, ASSISTANT SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, AND OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, RESPONDENTS. NATIONAL COTTONSEED PRODUCTS ASSOCIATION, PETITIONER, v. RAY MARSHALL, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR AND EULA BINGHAM, ASSISTANT SECRETARY OF
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LABOR, UNITED STATES DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, RESPONDENTS. NATIONAL COTTON COUNCIL OF AMERICA, PETITIONER, v. RAY MARSHALL, SECRETARY OF LABOR, EULA BINGHAM, ASSISTANT SECRETARY OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, RESPONDENTS. WEST POINT-PEPPERELL, INC., PETITIONER, v. RAY MARSHALL, SECRETARY OF LABOR AND EULA BINGHAM, ASSISTANT SECRETARY OF LABOR, RESPONDENTS.
Nos. 78-1562, 78-1736, 78-1979 to 78-1982, 78-1984, 78-1986 to 78-1993, 78-2013, 78-2014, 78-2016 and 78-2018.United States Court of Appeals, District of Columbia Circuit.Argued February 14, 1979.
Decided October 24, 1979. As Amended November 14, 1979. Rehearing Denied January 11, 1980.
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George H. Cohen, Washington, D.C., with whom Robert M. Weinberg, Jeremiah A. Collins, David M. Silverman, Laurence Gold, Judith Kincaid, Raleigh, N.C., J. Albert Woll, Elliot Bredhoff and Arthur M. Goldberg, Washington, D.C., were on the brief, for AFL-CIO, et al. petitioner in No. 78-1562, and intervenors in Nos. 78-1979, 78-1980 and 78-1981.
Robert E. Payne, Richmond, Va., with whom John S. Battle, Jr., Richmond. Va., Gregory B. Tobin, Greenville, S.C., Edward W. Warren and Arthur F. Sampson III, Washington, D.C., were on the brief, for petitioners American Textile Manufacturers Institute, Inc., et al. in Nos. 78-1562, 78-1979, 78-1980, 78-1981 and 78-1993.
Harlan H. Huntley and Roger L. Tuttle, Danville, Va., were on the brief, for petitioner Dan River, Inc. in No. 78-1988.
Robert T. Thompson, Greenville S.C., with whom Gary S. Klein, Greenville, S.C., was on the brief, for petitioner Milliken and Company in Nos. 78-1982, 78-1986 and 78-1987.
Samuel K. Abrams and Brian E. Moran, Washington, D.C., were on the brief for petitioner Cone Mills Corp. in No. 78-1989.
Carl W. Vogt, Washington, D.C., with whom Joyce E. Reback and Neal P. Gillen, Washington, D.C., were on the brief, for petitioner Cotton Warehouse Association, et al., in Nos. 78-1736, 78-2013 and 78-2014.
Dan M. Byrd, Jr., New York City, was on the brief, for petitioner Springs Mills, Inc. in No. 78-1991.
Robert E. Gregory, Jr., Spartanburg, S.C., was on the brief, for petitioner Sparton Mills in No. 78-1984.
Lovic A. Brooks, Jr. and Charles A. Edwards, Atlanta, Ga., were on brief, for petitioner Riegel Textile Corporation, in No. 78-1992.
Neil Jay King, Alan N. Braverman and Max O. Truitt, Jr., Washington, D.C., were on the brief, for petitioner West Point Pepperell, Inc., in No. 78-2018.
Charles M. Crump, Memphis, Tenn., was on the brief, for petitioner National Cotton Council of America in No. 78-2016.
Allen H. Feldman and John A. Bryson, Attys., Dept. of Labor, Washington, D.C., with whom Thomas L. Holzman, Laura V. Fargas, Gail Lindsay Simmons, Attys., Dept. of Labor, Washington, D.C., were on the brief, for respondent.
Allen A. Lauterbach, Park Ridge, Ill., was on the brief, for Amicus Curiae urging the Secretary’s order to be vacated in No. 78-1562.
Petition for review from the Occupational Safety and Health Administration.
Before BAZELON, Senior Circuit Judge, and TAMM and ROBINSON, Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge BAZELON.
BAZELON, Senior Circuit Judge:
[1] These consolidated petitions[1] for review challenge a new permanent health standard limiting occupational exposure to cotton dust,[2] which was promulgated by regulation on June 19, 1978 by the Occupational Safety and Health Administration of the DepartmentPage 644
of Labor (OSHA), under section 6(b)(5) of the Occupational Safety and Health Act of 1970 (the Act).[3] OSHA’s action, which rests on its determination that occupational exposure to cotton dust presents a material health hazard to workers, is attacked by three groups of petitioners: (1) representatives of the cotton textile industry[4] and (2) nontextile industries[5]
who claim that the standard is unwarranted and infeasible; and (3) their employee unions, who attack two provisions of the standard as too lax, but support the rest.[6] These very divergent claims reflect the wide variety of conflicting interests that make OSHA’s task a difficult one. On direct review,[7] we uphold the standard except for its application to the cottonseed oil industry which we remand for clarification or reconsideration.
[3] I. BACKGROUND[4] A. Health Risks
[5] Health impairments associated with exposure to cotton dust range from acute but reversible reactions to irreversible, chronic obstructive pulmonary disease.[8] Cotton dust exposure can produce or aggravate respiratory symptoms characteristic of chronic bronchitis, asthma, and emphysema.[9] Further, a specific, debilitating disease has been conclusively attributed to the effect of cotton dust on the respiratory passages. This disease, named byssinosis, is more commonly known in its chronic stage as “brown lung disease.”[10] This is the most serious health hazard for cotton workers.
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understood.[12] The subjective nature of many early symptoms[13] and variations in the composition of cotton dust[14] have compounded the uncertainties about the actual way in which cotton dust exposure causes serious health impairments.[15] Nonetheless, its progressively disabling symptoms are well documented.[16]
[7] Typically, a person suffering from byssinosis is initially affected by irritated air passages, coughing, breathlessness, and chest tightness. These symptoms are often accompanied by decreased pulmonary functioning, evidenced by objective indicators. At first the symptoms tend to last briefly, and usually remit a few days after exposure. The symptoms recur, however, whenever an affected individual returns to a dusty environment. [8] As the disease progresses, its symptoms become more pronounced and painful, resembling the effects of bronchitis and asthma. They persist throughout the work week, or period of exposure. During this stage, an affected worker may become temporarily incapacitated and may need to take short but frequent leaves from work. [9] When byssinosis reaches its advanced stage, the worker exhibits the symptoms of emphysema and chronic bronchitis. Ultimately, irreversible lung damage results. A worker afflicted with chronic byssinosis isPage 646
forced into premature retirement, often after painful efforts to remain on the job. Such individuals must give up all activities that require any physical exertion. The permanent lung damage caused by byssinosis makes every breath painful and difficult. The excess strain these breathing difficulties place on the heart often leads to the worker’s early death from heart failure.
[10] The actual number of persons afflicted with byssinosis is not certain, but it is large. One study estimated that 35,000 people have “disabling loss of lung function related to their work in the cotton textile industry” alone.[17] The Senate Report on the Occupational Safety and Health Act stated that as many as 100,000 active or retired workers suffered from the disease in 1970.[18] [11] Studies in the record estimate that 250,000 to 800,000 workers are exposed daily to cotton dust and its attendant risks.[19]As the reported incidence of the disease usually ranges as high as 20-30% of the work force in cotton industries,[20] each worker faces a substantial risk of health impairment.[21] [12] B. History of Cotton Dust Regulation
[13] Prior to the creation of OSHA a private association of governmental industrial hygienists placed cotton dust on its tentative list of substances for which specific exposure limits should be established.[22] In 1966 this organization adopted a “threshold limit value” of 1000 micrograms per cubic meter (1000 g/m[3]) of total dust.[23] [14] The federal government first regulated cotton dust in 1968. At that time, the Secretary of Labor, acting pursuant to the Walsh-Healey Act,[24] promulgated a 1000 g/m[3] maximum total dust exposure as an occupational health requirement for public contractors.[25] [15] This was an interim standard adopted upon passage of the Act in 1970 in which section 6(a) required the Secretary immediately to promulgate as occupational safety or health standards all existing “established Federal Standards,” including the 1000
g/m[3] standard for cotton exposure.[26] These interim standards were intended to afford workers minimal protection until the
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adoption of permanent standards through OSHA’s rulemaking proceedings.
[16] On September 26, 1974, the Director of the National Institute of Occupational Safety and Health (NIOSH)[27] submitted to the Secretary of Labor a set of recommendations for regulating cotton dust. NIOSH recommended[28] that cotton dust exposure be “controlled to the lowest feasible limit which shall be less than 0.2 mg lint-free cotton dust/cu.m.,”[29] or 200 g/m[3]. [17] Shortly thereafter, OSHA published an Advanced Notice of Proposed Rulemaking on cotton dust. OSHA requested interested parties to submit their views on the NIOSH recommendations and related issues concerning a proposed standard.[30] OSHA received comments from scientists, labor unions, industries, cotton growers, and governmental representatives. A proposed revision, published on December 28, 1976, called for an exposure limit of 200 g/m[3] of cotton dust.[31] OSHA provided 90 days for interested parties to submit written comments.[32] [18] At the close of the comment period, OSHA conducted hearings in three cities for a total of 14 days.[33] The comments and exhibits received before the hearings, the written and oral testimony of the hearing participants, and post-hearing comments and briefs comprise the informal rulemaking record for the final cotton dust standard promulgated by the agency. This record exceeds 105,000 pages in length; it includes comments from 263 parties and testimony from 109 participants at the hearing. The Final Standard and its accompanying statement of reasons fill 68 pages of the Federal Register.[34] [19] C. The OSHA Standard[20] On the basis of the massive rulemaking record, OSHA promulgated the cotton standard in an effort to reduce the health risks to cotton workers.[35] Part of the standard sets “permissible exposure limits” (PELs) for each manufacturing operation and industry that exposes workers to cotton dust.[36]
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Thus, OSHA set (1) 200 micrograms per cubic meter (200 g/m[3]) as the PEL for lint-free respirable cotton dust in yarn manufacturing; (2) 750 g/m[3] for slashing and weaving operations in the cotton industry; and (3) 500 g/m[3] for all other processes in the cotton industry and for all non-textile industries that expose workers to cotton dust.[37]
[21] Implementation of the standard depends primarily on the adoption of engineering and work practice controls by employers. OSHA established a four-year implementation period during which employers are expected to achieve compliance. If an employer establishes that the required controls are infeasible, he can obtain an administrative variance from the standard,[38] but he must make respirators available to protect his employees until he achieves compliance.[39] The standard also requires employers to monitor employees’ exposure to cotton dust, to provide medical surveillance and employee education, and to post warning signs about the health risks. [22] Before examining petitioners’ objections, we consider the limits of our review.[23] II. SCOPE OF REVIEW
[24] The Occupational Safety and Health Act of 1970 is one of a number of recent Congressional statutes that designates the stringent “substantial evidence” test for judicial review of notice-and-comment rulemaking.[40] The explicit language of the Act,[41] its legislative history,[42] and its application by the courts[43] confirm that regulations promulgated under the Act are
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to be upheld on review if supported by “substantial evidence on the record considered as a whole.”[44]
[25] The substantial evidence test provides for more rigorous scrutiny than the usual “arbitrary and capricious”[45] test applicable to informal rulemaking.[46] Although Congress required this more rigorous judicial review, it nevertheless delegated unusually broad discretionary authority to regulate against possible harms.[47] We have already resolved this seeming anomaly in Industrial Union Dep’t v. Hodgson,162 U.S.App.D.C. 331, 499 F.2d 467 (D.C. Cir. 1974). There we concluded that the reviewing court’s task under the Act is to provide a careful check on the agency’s determinations without substituting its judgment for that of the agency.[48] Congress apparently created an “uneasy partnership” between the agency and the reviewing court[49] to check extravagant exercises of the agency’s
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authority to regulate risk.[50] Our role in this partnership is to ensure that the regulations resulted from a process of reasoned decisionmaking consistent with the agency’s mandate from Congress.[51] By statute, this process must include notice to interested parties of issues presented in the proposed rule[52] The agency must also provide opportunities for these parties to offer contrary evidence and arguments.[53]
[26] OSHA adopted additional procedures to improve its decision-making process.[54] A qualified hearing examiner must preside at oral hearings on proposed standards. A verbatim transcript of the hearing is required, and cross-examination is permitted. These procedures, which were followed in this case, transform OSHA’s action into “hybrid” rulemaking,[55] and produce a record more susceptible to rigorous judicial review than the more usual informal rulemaking record.[56] [27] The tasks of this reviewing court are thus to ensure that the agency has (1) acted within the scope of its authority;[57] (2) followed the procedures required by statute and by its own regulations;[58] (3) explicated the bases for its decision; (4) adduced substantial evidence in the record to support its determinations.[59] [28] The meaning of “substantial evidence” in this context is problematic. Factual proof about particular health risks may not be substantial in the traditional sense simply because the medical and scientificPage 651
communities do not yet completely understand the nature of threatening diseases. To protect workers from material health impairments, OSHA must rely on predictions of possible future events and extrapolations from limited data. It may have to fill gaps in knowledge with policy considerations. Congress recognized this problem by authorizing the agency to promulgate rules on the basis of the “best available evidence.”[60] OSHA’s mandate necessarily requires it to act — even if information is incomplete — when the best available evidence indicates a serious threat to the health of workers.[61] Thus, a court entrusted with the rigorous “substantial evidence” review must examine not only OSHA’s factual support, but also the “judgment calls” and reasoning that contribute to its final decision.[62] Otherwise, an agency’s claim of ignorance would clothe it with unreviewable discretion.
[29] Therefore, the reviewing court must examine both factual evidence and the agency’s policy considerations set forth in the record. To facilitate this review of the record, the agency must pinpoint the factual evidence and the policy considerations upon which it relied.[63] This requires explication of the assumptions underlying predictions or extrapolations,[64] and of the basis for its resolution of conflicts and ambiguities.[65] In enforcing these requirements, the court does not reach out to resolve controversies over technical data.[66] Instead, it seeks to ensure public accountability. ExplicitPage 652
explanation for the basis of the agency’s decision not only facilitates proper judicial review but also provides the opportunity for effective peer review, legislative oversight, and public education. This requirement is in the best interest of everyone, including the decision-makers themselves. If the decision-making process is open and candid, it will inspire more confidence in those who are affected. Further, by opening the process to public scrutiny and criticism, we reduce the risk that important information will be overlooked or ignored. Instructed by these ends, this court on review will “combine supervision with restraint.”[67]
[30] III. CHALLENGES BY THE TEXTILE INDUSTRY
[31] The textile industry petitioners acknowledge that textile workers who are exposed to cotton dust may risk contracting byssinosis.[68] Their challenge focuses on the regulatory approach OSHA has chosen to reduce that risk. Specifically, they ask us to find that OSHA’s regulatory approach is not “reasonably necessary” to protect textile workers from the admitted danger posed by cotton dust.[69] Further, they ask us to find that approach technologically and economically infeasible.[70]
[33] OSHA chose a “dust control strategy” that requires engineering and work practice controls to limit worker exposure to the “lowest feasible [cotton] dust levels” within four years.[71] [34] The textile industry rejects OSHA’s approach as unnecessarily expensive. The industry contends that workers can be fully protected from “`material impairment of [their] health or functional capacity'” by a higher permissible exposure level coupled with a medical surveillance program.[72] The industry’s alternative would permit an exposure level of 500 g/m[3] in all cotton manufacturing operations except weaving, for which a PEL of 1000 g/m[3] is proposed. This alternative would also require workers to wear respirators or accept transfers to lower exposure work areas if medical surveillance shows that they are suffering from byssinosis symptoms “which, with years of continued exposure, could lead to [material health] impairment.”[73] [35] The textile industry petitioners claim that OSHA failed to seriously consider their alternative or to provide adequate reasons for rejecting it. The industry also claims that the regulatory approach adopted by OSHA is not permitted by the Act.[74] We disagree with both claims. [36] First, OSHA gave serious attention to the medical studies conducted by the textile industry and proffered to support the industry’s alternative.[75] These studies purport to show that medical surveillance programs
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at various textile plants have already afforded workers a level of protection comparable to that offered by OSHA’s approach. The record shows that OSHA specifically addressed and scrutinized these studies, and concluded that their validity had largely been discredited.[76] OSHA’s judgment on this issue is sufficiently supported on this basis.[77]
[37] Besides this careful treatment of the medical surveillance proposal, OSHA rejected the industry’s proposed reliance on job transfers and respirators to protect workers suffering from acute symptoms of byssinosis on the basis of testimony in the record and express policy considerations.[78] The industry was unable to show that job transfers would be available in sufficient number to respond to the likely prevalence of byssinosis in plants with dust levels at the 500 g/m[3] proposed by the industry.[79] Further, the agency found uncontradicted testimony in the record that respirators can cause severe physical discomfort and create safety problems of their own.[80] OSHA concluded that the industry’s proposal inappropriately placed the burden of compliance on the employees.[81] On this express policyPage 654
ground, and on the basis of the evidence in the record, OSHA reasonably rejected these elements in the industry alternative.
[38] Finally, the textile industry argues that the agency’s effort to reduce workers’ cotton dust exposure to the lowest feasible level is not “reasonably necessary or appropriate.”[82] This argument rests on the claim that the agency need not guard against the acute but reversible symptoms of byssinosis because they do not themselves constitute a “material impairment of health.”[83] We find that this claim and its attendant argument must fall in the face of the agency’s evidence and reasons. [39] The agency adopted a “dust control strategy” after finding conclusive evidence of a causal relation between exposure to cotton dust and the contraction of respiratory diseases, such as byssinosis. The agency acknowledged gaps in medical understanding of the specific causal relationship between cotton dust and disease.[84] Nonetheless, the agency’s mandate requires it to protect workers’ health even before the resolution of all medical and scientific uncertainties about the particular health risk.[85] Further, OSHA heard several witnesses conclude that at present, “there is no basis for any programs of prevention and control of byssinosis other than those based on prevention of exposure to respirable cotton dust.”[86] Virtually without exception, key textile industry witnesses along with public health experts rejected medical surveillance as an alternative to dust reduction.[87] Accordingly, the agency adduced considerable evidence to support its dust control strategy. [40] The agency’s approach, which is similar to its strategy in regulating asbestos,[88] is authorized by the primary purpose and by the special mandate of the Act. Section 2(b) sets out the Act’s broad protective purpose: “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions.” Toward this end, section 6(b)(5) authorizesPage 655
OSHA to set permanent standards for occupational exposure to “toxic materials or harmful physical agents” at the level
[41] Contrary to the industry’s view, this mandate does not restrain the agency from acting to prevent irreversible health damage until workers actually suffer the early symptoms of byssinosis. Instead it is a mandate to reduce the risk of that irreversible damage — especially for those workers who have regular exposure to the causal agent, cotton dust. In the present case, OSHA adequately documented the risk of such damage attributable to continued exposure to cotton dust. Medical experts testified on the record that the early, acute symptoms of byssinosis weaken the worker’s pulmonary system and increase his susceptibility to the adverse effects of subsequent cotton dust exposure.[90] We therefore uphold OSHA’s decision to reduce the prevalence of chronic byssinosis through regulations stringent enough to reduce even the occurrence of the reversible acute stage of the disease. [42] B. Feasibility of the Standardwhich 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.[89]
[43] All parties acknowledge that OSHA must evaluate technological and economic feasibility in setting permanent standards under section 6(b)(5) of the Act. These considerations set constraints on the agency’s mandate to assure employees “the highest degree of health and safety.”[91] In light of petitioners’ claims, we must examine the record to ensure that OSHA has not exceeded its mandate by neglecting these constraints. [44] We are assisted here by this court’s interpretation of the feasibility requirement in Industrial Union Dep’t, AFL-CIO v. Hodgson. In that case, we concluded that the feasibility requirement reflects Congress’ recognition that employees would not be protected if their employers were put out of business.[92] This possibility is all too real if the agency inflexibility requires protective devices unavailable under existing technology or otherwise makes financial viability impossible.[93] At the same time, we concluded, standards do not become infeasible simply because they may impose substantial costs on an industry, force the development of new technology, or even force some employers out of business.[94] Otherwise the Act’s commitment to protect workers might be forever frustrated. [45] In this case, the textile industry petitioners contend that the record does not support OSHA’s findings of technological and economic feasibility. First, they argue that the standard is technologically infeasible for the spinning through weaving stages of textile manufacturing.[95] Further, they argue
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that the record does not support the agency’s finding that the standard is economically feasible. In addition, they argue that “OSHA failed to satisfy its obligation seriously to weigh even its grossly understated costs against the benefits sought to be secured by the Standard.”[96]
[46] Our review of these challenges is not designed to resolve the technical and economic debates. Our duty is simply to determine from close scrutiny of the entire record whether the feasibility of the standard is adequately supported by data and policy considerations. In addition, the agency must have considered and responded to serious challenges to the claim of feasibility. On both counts, we find that OSHA has performed its task adequately. [47] 1. Technological feasibility[48] The textile industry does not argue that the exposure level set for the initial stages of textile manufacturing is technologically infeasible.[97] Its attack is limited to the feasibility of the level set for the later stages of spinning through weaving,[98] and to the four-year deadline for compliance.[99] [49] Judging the technological feasibility of a particular agency goal is beyond the expertise of the judiciary especially where the assessment involves predictions of technological changes. [50] Instead, our task on review is to find whether the agency sufficiently supported its feasibility determination with material in the record. Here, the agency’s position is supported with evidence that existing dust control techniques can bring about compliance in the textile industry.[100] [51] First, OSHA points to evidence in the record that many employers already are in compliance with the 200 g/m[3] PEL set for spinning through warping operations. This finding at least in part refutes the industry’s charge that on technological grounds it cannot meet the required exposed level for these operations. Notably, three-fourths of the spinning operations described in the industry’s own study had dust levels below the 200 g/m[3] level and others were very close to voluntary compliance.[101] [52] The textile industry does not contend that the looms or frames not yet in compliance in any way differ from those already complying with the new PEL. Rather, the industry asserts that the noncomplying mills run dustier cotton. This contention, as OSHA answers, is belied by the record, for the requisite PEL has been met in spinning
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operations running 100% coarse cotton, which is the dustiest variety.[102]
[53] There is also evidence that some mills have achieved low dust levels in the twisting, winding, spooling, and warping operations.[103] OSHA admits that these operations have been studied less than spinning, apparently because these operations generate very little cotton dust.[104] The agency nevertheless obtained evidence that existing dust control principles can be adapted to these operations as the need arises.[105] [54] Similarly, the PEL set for slashing and weaving operations appears reasonable in light of the record. The industry’s own chief witness estimated that 72% of the weaving operations met the requirement of 750 g/m[3] when studied.[106] OSHA also cited a study in the record that identified three basic approaches to permit compliance by the remaining mills in these operations: (1) isolating the weaving rooms; (2) separating room ventilation systems; and (3) installing local exhaust ventilation equipment.[107] [55] Thus, for each operation of textile manufacturing, the agency established evidence of present compliance and existing control measures capable of increasing compliance. The agency therefore concluded that a[56] The industry objects that OSHA drew unwarranted generalizations from dust measurements at small numbers of plants[109] and from expert testimony on general principles of dust control[110] We agree that OSHA might have improved the quality of the record with more extensive studies at different mills and over different periods of time.[111] Further study, however,combination of specific control measures . . . the adoption and modification of general dust controls, and further utilization of technological developments . . . already underway, should achieve compliance for the textile industry.[108]
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would have added substantial additional cost and delay to an already costly and prolonged rulemaking proceeding.[112]
Rather than directing the agency to wait for the best evidence, the OSH Act requires the agency to develop standards based upon “the best available evidence.”[113] This court will not require further survey research from the agency especially where it has made an informed decision to rely on other credible sources of information, such as the extensive expert testimony, written comment and briefs, and research studies used here.[114]
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to evidence and policy considerations in the record. We support its judgment.
[59] 2. Economic Feasibility[60] The petitioners concede that OSHA’s estimate of $550 million in capital costs would be economically feasible for the textile industry, but they claim that OSHA’s estimate grossly understates the actual costs the industry will incur if the standard goes into effect. To evaluate this claim, we must first consider the accuracy of OSHA’s cost estimate and then review its feasibility determination. [61] a. Accuracy of cost estimates
[62] OSHA derived its cost estimates from two principal sources: the Research Triangle Institute (RTI) estimates for the entire textile process[119] and industry estimates for part of the textile process.[120] OSHA tried to account for the divergence between the estimates from these two sources by exploring the assumptions each employed.[121] After examination, the agency decided that both sets of estimates are overstatements, and chose to rely on what it regarded the best portions of each estimate.[122] [63] All parties agreed that the largest cost imposed by the standard is the capital cost of engineering controls. OSHA found the RTI capital cost figures to be overstated on several bases.[123] OSHA concluded that RTI inappropriately included estimates for plants processing blends between cotton and synthetics.[124] Further, OSHA found that RTI neglected the cost advantages available when compliance is achieved through modernizing rather than retrofitting the machinery.[125] RTI also assumed industry-wide compliance with the old standard of 1000 g/m[3].[126] Thus, RTI estimated only the incremental cost necessary to achieve compliance with the new PEL. This estimate necessarily was inaccurate, as some of the industry had not yet complied with the old standard, while other plants
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already had met the stricter new standard.[127] Further, industry witnesses testified that “substantial amounts of [recommended] controls are, in fact, in operation.”[128]
[64] OSHA found the industry’s capital cost estimates to be overstated as well. Like RTI, the industry estimated only the costs of retrofitting old machines; it did not consider replacing them with new machines that are more productive and generate less dust.[129] Similarly, the industry “may have included some equipment which is used exclusively for synthetics” and thus inappropriately included in cotton dust control cost estimates.[130] The agency also noted that the industry estimates failed to account for improvements in technology that can reasonably be expected during the four-year compliance period.[131] [65] Finding both sets of capital cost estimates in the record to be exaggerated, the agency chose to rely on the substantially lower industry estimate. Unlike the RTI study, the industry’s assessment reflected concrete data on actual industry dust levels and use of controls.[132] [66] Ironically, it is now the industry that challenges the accuracy of its own data.[133] The textile industry petitioners argue that OSHA’s reliance on the industry’s capital cost estimate is invalid because it is “wholly unrelated to the exposure limits set by the Standard.”[134] The industry notes that its $550 million figure was advanced as the projected capital cost of compliance with a PEL of 200 g/m[3] in opening through roving, 500 g/m[3] in spinning through warping, and 1000 g/m[3] in slashing and weaving.[135] Thus, for spinning through weaving, the industry’s estimate assumed a PEL requirement higher than the ones ultimately adopted — the 200 g/m[3] level for spinning through warping and 750 g/m[3] in slashing and weaving. The textile industry contends that by ignoring this fact, OSHA’s final standard is based on a grossly understated cost estimate. [67] OSHA, however, marshals sufficient support and analysis for its decision to use the industry’s capital cost estimate. Contrary to the industry’s claim that this estimate is “wholly unrelated” to the PELs in the final standard, OSHA’s technological assessment concluded that little more than the dust control measures assumed by the industry would be necessary to achieve the final PEL.[136] OSHA also explained that even the industry capital estimates were exaggerated because they included some unnecessary costs.[137] Thus, OSHA reasonably viewed the industry’s figure as an overstated estimate for exposure levels set slightly higher than those in the agency’s final standard.Page 661
[68] Since the only other available figure was the far less accurate RTI estimate[138] the agency’s ultimate reliance on the industry’s capital cost estimate is reasonable. The RTI estimate lacked a basis in the industry’s actual dust reduction. It also presumed a PEL for weaving and slashing far lower than the final PEL, which more nearly approximated the exposure level and control technology assumed by the industry.[139] [69] The very nature of economic analysis frequently imposes practical limits on the precision which reasonably can be required of the agency. This is especially the case where, as here, the industry chooses to withhold from the agency part of the data underlying the industry’s cost estimates.[140] OSHA’s mandate authorizes it to promulgate standards on the basis of the “best available evidence.”[141] We find that OSHA reasonably evaluated the cost estimates before it, considered criticisms of each, and selected suitable estimates of compliance costs.[142] [70] b. Feasibility of compliance costs[71] The actual test for economic feasibility has yet to be fully developed by the courts.[143] This court has suggested that the costs cannot be “prohibitively expensive” for Congress would not have intended OSHA to make “financial viability generally impossible” for a regulated industry.[144] [72] Here, the agency had evidence in its record that the industry would be able to pass compliance costs on to consumers.[145]
Although the record also contained testimony suggesting that older and smaller firms might bear a disproportionate financial burden,[146] it does not support the industry’s claim of infeasibility. Even if a few firms are forced to shut down, the standard is not necessarily economically infeasible. As this court observed in Industrial Union,
[73] Here the agency expressed concluded “that although some marginal employers may shut down rather than comply, the industry as a whole will not be threatened by the capital requirements of the regulation.”[148] [74] Of course, the agency’s underlying cost estimates are not free from imprecision. Nonetheless, on reviewing the record we believe that OSHA fairly considered all the economic data submitted before constructing its estimates. The agency responded to significant criticisms of the cost estimates it used, and explained the economic impact it projected for the textile industry. As a result, this court is satisfied that OSHA has substantial support in the record for its cost estimates and findings of economic feasibility for the textile industry. The position of the union petitioners on this issue[149] buttresses OSHA’s conclusion that the standard will not put the industry out of business.[150] [75] 3. Cost-Benefit and Cost-Effectiveness AnalysisIt would appear to be consistent with the purposes of the Act to envisage the economic demise of an employer who has lagged behind the rest of the industry in protecting the health and safety of employees and is consequently financially
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unable to comply with new standards as quickly as other employers.[147]
[76] Industry petitioners would have this court impose an additional constraint on OSHA’s authority to determine standards. They claim that under the feasibility requirement, OSHA must demonstrate that “the benefits of the standard are in proportion with the costs which it imposes.”[151] This amounts to a claim that no standard may be promulgated under section 6(b)(5) of the Act absent a formal cost-benefit analysis.[152] The industry similarly argues
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that OSHA must justify the expense imposed by its standard by comparing it with the industry’s proposed alternative.[153]
[77] OSHA agrees that a systematic evaluation of costs and benefits is to be encouraged within the limits of available estimation techniques,[154] yet it contends that such analysis is no required. OSHA argues that the OSH Act constrains its regulation of dangerous substances “only by the limits of feasibility.”[155] We agree. We also find that no additional constraint is imposed by the Act’s definition of a health or safety standard as “reasonably necessary or appropriate to provide safe or healthful employment.”[156] The language of the Act and the clear intention of Congress permit no other conclusion. [78] Other statutory schemes explicitly require such particular kinds of analysis. In the Clean Air Act, for example, Congress required the Environmental Protection Agency to perform a “cost benefit analysis” before prohibiting the manufacture or sale of a fuel or fuel additive which endangers public health or welfare.[157] Some Congressional Acts require a showing of “unreasonable risk” prior to regulation.[158] The legislative histories of these acts have led the courts to construe this provision to require regulatory agencies to balance costs and benefits of proposed action.[159] [79] In the OSH Act, in contrast, Congress itself struck the balance between costs and benefits in the mandate to the agency. Section 6(b)(5) unequivocally mandates OSHA to[80] Thus Congress concluded that the benefits of health protection warranted the expense of an effective standard.[161] In the legislative debates on the Act, Senator Yarborough who sponsored the bill responded in no uncertain terms to the claim that the proposed legislation would be too expensive:[162]set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that
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no employee will suffer material impairment of health or functional capacity.[160]
[81] In contrast to the Acts for which Congress contemplated a cost-benefit requirement, the legislative history of the OSH Act contains no reference to this kind of economic analysis.[164] [82] Instead, Congress determined in the OSH Act that any severe risk to employee health must be eliminated or reduced if feasible means to do so exist.[165] This calls for a two-step analysis by the agency: (1) determining whether health impairment is threatened by the suspect substance, and (2) determining whether the selected strategy to protect workers from this risk is both technologically and economically feasible. Nothing in the statute or its legislative history requires a further determination that the costs of the standard bear a “reasonable” relationship to its benefits.[166] NorWe are talking about people’s lives, not the indifference of some cost accountants. . . . We are talking about assuring our American workers who work with deadly chemicals that when they have accumulated a few years seniority they will not have accumulated lung congestion and poison in their bodies, or something that will strike them down before they reach retirement age.[163]
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may this court impose additional procedural requirements.[167] Indeed, the only authorities cited by petitioners are not binding on this circuit,[168] and in any event, they are not persuasive in this context.[169]
[83] Further, cost-benefit analysis would not necessarily improve agency health and safety determinations.[170] These techniques require the expression of costs, benefits and performance in often arbitrary, measureable terms.[171] They may hide assumptions and qualifications in the seeming objectivity of numerical estimates. Especially where a policy aims to protect the health and lives of thousands of people, the difficulties in comparing widely dispersed benefits with more concentrated and calculable costs may overwhelm the advantages of such analysis.[172]Page 666
[84] OSHA considered the alternative proposed by the industry and found it inadequate to protect against the health risk at issue. We recognize that the agency’s control strategy is costly. But it is the result of long and comprehensive investigation by the agency assisted by extensive public participation.[173] We find that the health risk posed by cotton dust warranted agency action, and that the final standard chosen by the agency is technologically and economically feasible for the textile industry within the meaning of the Act.[174][85] IV. NON-TEXTILE INDUSTRIES
[86] In the final standard, OSHA set a permissible exposure level of 500 g/m[3] for all non-textile industries covered by the standard.[175] Three such industries here challenge the standard:[176] (1) the cottonseed oil mills, which process cottonseed and its byproducts; (2) the cotton warehouses, which store raw, baled cotton; and (3) the classing offices, which classify samples of cotton fiber.[177]
[89] Petitioners do not dispute that their employees are exposed to cotton dust,[178] often at higher levels than in textile mills. They assert, however, that the work processes, dust composition, and worker exposure to dust in nontextile industries differ significantly from the textile industry.[179] In this way, petitioners seek to challenge OSHA’s general position that exposure to cotton dust poses a serious hazard to workers regardless of where the dust is encountered.[180] [90] The exact nature of the health hazard posed by cotton dust remains subject to medical debate.[181] The agency had before it conclusive evidence that dust found in textile mills causes debilitating disease;[182]
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it also had some evidence of related, though less severe, health impairments among workers in nontextile industries.[183]
Although petitioners point to differences among the industries, OSHA’s mandate requires it to protect workers in all industries.[184] We find that OSHA fulfilled this mandate by reasonably relying on medical evidence from the textile industry[185] and evidence of health impairments among nontextile workers.[186] The differences in the industries that were cited by petitioners do not undermine the agency’s determination.
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[93] OSHA thus explained the evidence it used, the reasons for its conclusions, and its responses to the industries’ evidence and objections. When agencies are entrusted with regulating risks on the frontiers of scientific and medical knowledge, we cannot ask for more.[191] [94] Petitioners nevertheless argue that we should find it arbitrary and unreasonable for OSHA to set the standard before NIOSH completes its study of the non-textile industries.[192]Certainly, OSHA should take advantage of the ongoing research of NIOSH and other major inquiries into occupational health and safety. But by law, OSHA need not wait for NIOSH recommendations before protecting against occupational health risks.[193] Nor are such recommendations conclusive.[194] A legitimate challenge to a health and safety standard can be raised as new data emerges,[195] but OSHA did not exceed its authority by regulating as soon as it knew of the risks of material health impairment from dust exposure.[196] [95] B. Feasibility
[96] Judgments about the technological capabilities and financial positions of the industries affected by the standard depend on the evidence for each one, so we examine
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evidence on the warehouse, classing office, and cottonseed oil mill industries.
[97] 1. Warehouses and Classing Offices[98] The warehousing industry does not dispute the feasibility of the standard. Indeed, OSHA determined that most warehouses are already in compliance with the standard now that the final PEL for that industry has been raised to 500 g/m[3].[197] For those portions of the industry not in compliance, the record indicates that improved ventilation and housekeeping will adequately assure compliance.[198] [99] OSHA also reasonably concluded that most classing offices[199] are “substantially in compliance” with the 500
g/m[3] PEL.[200] Where dust control is necessary, the record supports OSHA’s finding that minor ventilation modifications can effectively reduce dust exposure in classing offices to the requisite level.[201] [100] Thus we uphold the agency’s finding that dust control is both technologically and economically feasible for warehousing and classing offices. These two industries claim, however, that non-engineering controls required by OSHA — medical surveillance and provision of respirators — will impose burdensome and unjustified costs.[202] Congress itself rejected this claim. It authorized the agency to regulate even if industries become financially burdened,[203] so long as the burden is not “prohibitively expensive.”[204] OSHA need not “justify” its health and safety standards through a cost-benefit analysis[205] as the petitioners imply. Rather, OSHA must simply establish the risk of material health impairment and demonstrate the economic and technological feasibility of its standard for the regulated industries.[206] We hold that it has satisfied these requirements for the warehousing and classing office industries. [101] 2. Cottonseed Oil Mills
[102] Perhaps the most hotly contested aspect of the standard is its feasibility for the cottonseed oil industry. OSHA admits that considerable effort will be required for this industry to comply with the standard. We find that OSHA has adequately demonstrated the technological feasibility of the standard for this industry, but the record does not sufficiently establish its economic feasibility.
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[103] First, the record does sufficiently support the agency’s conclusion that existing methods of dust control will permit compliance with the dust exposure level set for this industry. OSHA relied in part on evidence of dust control techniques already effective in related industries.[207] It also found support in the industry’s own theoretical study that was designed as if the authors “were consulting engineers given the task of lowering dust levels in a typical cottonseed oil mill to the lowest feasible level.”[208] As that study was commissioned by the industry in response to the proposed 200 g/m[3] PEL,[209]we find no reason to disturb the agency’s judgment that the techniques proposed by the study would allow compliance with the final 500 g/m[3] PEL.[210] Agencies are permitted to rely on estimates and policy judgments of this kind so long as they are fully explained and authorized by statute.[211] We therefore affirm the agency’s finding of technological feasibility for this industry. [104] The agency’s position on economic feasibility, in contrast, is neither clear nor adequately supported by the record. OSHA acknowledged that “[m]uch of the testimony on cottonseed processing . . . predicted dire economic effects including a substantial number of plant closings.”[212] The industry estimated that 62 of the existing 83 mills, or approximately 52 percent of the industry’s production capacity, will be forced to shut down if the standard is put into effect.[213] [105] In response, OSHA merely criticized the industry’s estimate without constructing an alternative or fully explaining the basis for its criticism.[214] For example, OSHA suggested that the industry calculated “retrofit”
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costs twice.[215] Yet the agency never located these calculations in the record nor identified the amount by which the cost estimate should be reduced to eliminate double-counting. Similarly, OSHA asserted without further explanation that the industry overstated production losses because the dust control strategy was designed to minimize such losses.[216] Also, OSHA claimed that the industry’s cost estimate fails to acknowledge existing compliance with the standard, but the only evidence OSHA provides is the existence of a medical surveillance program in one company.[217] Absent more evidence on the extent of existing compliance, or the other asserted grounds of overestimation, we are unable to determine whether the industry’s total cost estimate is unreasonable, as the agency contends. Even if the industry’s estimate is exaggerated, OSHA offered no evidence that the cost of compliance will not cause “serious disruption,” as petitioners claim.[218]
[106] Instead, the agency concedes that the standard may “accelerate” an existing trend of financial and economic decline in the cottonseed oil industry.[219] The agency apparently assumed that the standard’s economic feasibility is not challenged because other factors will contribute to the anticipated shutdowns. In so assuming, the agency fails to indicate the number of shutdowns it anticipates or the role that the standard, asPage 672
opposed to other economic pressures, will play in plant closings.[220] As a result, this court has no basis for reviewing the agency’s conclusion that the standard is economically feasible for the cottonseed oil industry.[221]
[107] Finally, the agency suggests that the industry will be able to pass the costs of the standard back to cotton growers.[222]OSHA argues that cotton growers will inevitably have a constant supply of cottonseed and will be willing to accept a lower price for the seed, shifting the loss forward to purchasers of raw cotton.[223] But the agency adduces no evidence or testimony to support this theory. In fact, the record shows only the contrary conclusion, drawn by the industry’s economic impact study, that cotton producers will switch to other produce if the industry seeks to lower the price of cotton byproducts.[224] OSHA itself acknowledges that many past shutdowns of cottonseed oil mills have been due to contractions in the supply of cottonseed.[225]
Absent more information, this court cannot determine whether the agency’s cost pass-back theory adequately responds to the industry’s estimate of massive shutdowns. [108] If the constraint of economic feasibility is to have any effect on the agency’s rulemaking, it demands more serious consideration than it was given here.[226] The agency is allowed to rely on the best available evidence,[227] but here it simply gives general criticisms of the cottonseed industry’s cost estimate. It failed to offer an alternative estimate of the standard’s impact on this industry. As a result, the agency’s position
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is too unclear to permit us to complete our reviewing function. We therefore remand this issue for clarification or reconsideration by the agency.[228]
[109] V. OTHER CHALLENGES
[110] We conclude that the standard withstands the remaining challenges to the standard’s implementation period, employee-transfer provision, and use of pulmonary function tables.
[112] The standard does not require any employer to complete implementation of engineering or work practice controls until four years after its effective date.[229] The textile industry challenges this time period as too stringent;[230] the union challenges it as too lax.[231] Both groups of petitioners claim that the agency’s decision lacks support in the record, authorization under the OSH Act, and adequate explanation by the agency. [113] We find no basis to petitioners’ claims. OSHA reasonably set the four-year compliance period to accommodate the competing needs of employers who need time to achieve compliance and the needs of employees who need protection from health risks.[232]
The agency decided that to meet the standard’s requirements, employers should first monitor employee health, consult with experts, and prepare detailed compliance plans.[233] The four-year period it chose we find will permit orderly, industry-wide compliance.[234] Employers for whom this period is infeasible can seek an administrative variance.[235] The agency still assures
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protection to workers during the implementation period with the standard’s respirator provisions.[236] We cannot disturb the agency’s decision simply because petitioners would have struck a different balance between the needs of employers and employees.[237] We find that the four-year period reflects reasoned decisionmaking on the basis of the rulemaking record.
[114] B. The Medical Transfer and Wage Guarantee Provisions[238][115] The standard includes special provisions for employees who, for medical reasons, cannot wear respirators. Section 1910.1023(f)(2)(v) provides for the transfer of such employees to positions outside the dusty areas:
[116] This section also guarantees the wages and benefits of transferred employees:Whenever a physician determines that an employee is unable to wear any form of respirator, . . . the employee shall be given the opportunity to transfer to another position which is available or which later becomes available having a dust level at or below the PEL.[239]
[117] The textile petitioners argue that this provision exceeds OSHA’s statutory authority.[241] We find to the contrary that this provision falls within the agency’s authority to include in its standards such “practices, means, methods, operations, or processes, [that are] reasonably necessary or appropriate to provide safe or healthful employment.”[242] OSHA determined that a limited number of employees cannot be protected even temporarily by respirators.[243] Absent the medical transfer and wage guarantee provisions, during the interim compliance period these employees would be forced to suffer continuing exposure to impermissibly high dust levels or else risk disadvantageousThe employer shall assure [that] an employee who is transferred due to an inability to wear a respirator suffers no loss of earning or other employment rights or benefits as a result of the transfer.[240]
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transfers, or even risk losing their jobs.[244] Given these alternatives, such employees may refrain from disclosing actual health impairments from the dust exposure. OSHA is authorized to guard against such problems. Its mandate is to assure that “no
employee will suffer material impairment of health or functional capacity” on the job.[245] In light of the Act’s purposes,[246] OSHA sought to avoid these problems and properly placed the cost of employee protection on the employer.
[120] OSHA included as Appendix C to the standard a set of tables that establishes predicted pulmonary function values as the norm against which employees’ actual lung functions are to be measured.[248] Under the standard’s medical surveillance provisions, if an employee’s actual lung function falls more than twenty percent below the appropriate value specified in these tables, the employee must be retested every six months until the table’s values are met.[249] [121] The textile industry asks us to vacate these tables.[250] The industry claims that the tables and the studies on which they are based were not made part of the record and were not available for public comment before the promulgation of the final standard. Further, the industry claims that the tables rely on studies of a sample population that does not share important characteristics with the employees who will be measured against the tables.[251] [122] We find petitioners’ claims unwarranted. This is not an instance of a final standard that contains a provision substantially different from the proposed version.[252] The
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proposed version contained similar tables and the agency explicitly solicited comments on their use.[253] There is no doubt that the general concept of pulmonary function tables as benchmarks in medical surveillance was thoroughly discussed during the informal rulemaking proceeding.[254]
[123] Petitioners still ask us to vacate the tables finally adopted because their exact form and contents were not available for comment during the rulemaking process. Were we to agree, we would essentially preclude the agency from responding to comments during the rulemaking process,[255] for the tables finally adopted were a logical outgrowth of testimony received during the rulemaking proceeding.[256] The sample population employed improve the scientific reliability of these tables when compared with those used in the proposed standard.[257] Thus, we find the adoption of these tables consistent with the requirements of informal rulemaking and with the agency’s duty to base the standard on the “best available evidence.”[258][124] CONCLUSION
[125] Our task on review has not been easy. The record is massive and unwieldy;[259] it reveals numerous medical and technical issues in need of continued study. Congress, however, has made it clear that OSHA must protect every worker from the risks of material health impairment due to occupational exposure to hazardous materials. OSHA is constrained only by the requirement that its standards be technologically and economically feasible for the regulated
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industries. In sum, our review leads us to uphold the standard, except for its application to the cottonseed oil industry. In every aspect except that one, OSHA explained the evidence in the record it found persuasive and the policies that guided its judgment when facts proved insufficient. As for the cottonseed oil industry, however, we are unable to discern the basis for the agency’s feasibility determination. We do not conclude that the standard is infeasible for that industry; rather, we remand that portion for reconsideration or clarification by the agency.
[126] Ordinarily, we would remove the stay of the standard that was granted for the pendency of this litigation. In view of the alleged magnitude of the consequences, however, we will defer action regarding the stay to afford petitioners 20 days to show cause why the stay should not be lifted. [127] It is so ordered.those who hackle in the flax and hemp to prepare it for being spun and wove, afford frequent instances of the unwholesomeness of their trade; for there flies out of this matter a foul mischievous powder, that entering the lungs by the mouth and throat, causes continual coughs and gradually makes way for an asthma. . . . But in the long run if they find their affliction grows upon them they must look out for another trade; for ’tis a sordid profit that’s accompanied with the destruction of health.
B. Ramazzini, A Treatise of The Diseases of Tradesmen (London, 1705) (quoted in J. Merchant, Epidemological Studies of Respiratory Disease Among Cotton Textile Workers: 1970-1973 at 1 (1973), Joint Appendix (J.A.) (1497). See also 41 Fed.Reg. 56500 (1976).
Other workers may experience severe symptoms and yet not be diagnosed with the disease. Compare, e. g., J.A. 2120 (testimony of Eva Bradshaw) (“Along about 5 or 10 years before I had to come out of the mill my chest would get so tight it felt just like an accordian that had closed down, like it was squeezed shut as tight as it would go. I coughed all the time, especially at work.”) with J.A. 2057-58 (supplemental submission of Harold Imbus of Burlington Industries) (asserting that physicians did not diagnose Eva Bradshaw with byssinosis).
at 96, J.A. at 108. But NIOSH concluded that insufficient information is available to support this theory. Id. accord.,
J.A. 1216-17 (comments of A. Bouhuys).
Therefore, OSHA applied its standard to a broad definition of cotton dust. 43 Fed.Reg. 27354. See id. at 27395, (to be codified at 29 C.F.R. 1910.1043(b)):
“Cotton dust” means dust present in the air during the handling or processing of cotton, which may contain a mixture of many substances, including ground up plant matter, fiber, bacteria, fungi, soil, pesticides, non-cotton plant matter and other contaminants which may have accumulated with the cotton during the growing, harvesting and subsequent processing or storage periods. Any dust present during the handling and processing of cotton through the weaving or knitting of fabrics, and dust present in other operations or manufacturing processes using new or waste cotton fibers or cotton fiber by-products from textile mills are considered cotton dust.
“despite repeated warning over the years from other countries that their cotton workers suffered from lung disease, it is only within the past decade that we have recognized byssinosis as a distinct occupational disease among workers in American cotton mills.” S.Rep. No. 91-1282, 91st Cong., 2d Sess. 3 (1971), U.S. Code Cong. Admin. News 1970, p. 5179, reprinted in Legis.Hist. 143.
to conduct such research and experimental programs as he determines are necessary for the development of criteria for new and improved occupational safety and health standards[.]
29 U.S.C. § 671(d)(1).
Section 3(8) of the Act, 29 U.S.C. § 652(8) defines the term “occupational safety and health standard” to mean
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.
The Act requires employers to “comply with occupational safety and health standards promulgated” under the Act, 29 U.S.C. § 654(a) (2), in addition to their general duty to furnish employment and a place of employment “free from recognized hazards that are causing or are likely to cause death or serious physical harm . . ..” 29 U.S.C. § 654(a)(1).
The determinations of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole.
162 U.S.App.D.C. 331, 499 F.2d 467 (D.C. Cir. 1974), this court rejected the claim that the substantial evidence test adopted in the Act should apply only to factual determinations. This view would leave policy judgments behind a challenged health and safety standard reviewable only under the arbitrary and capricious test. 499 F.2d at 473. Instead, this court concluded that under the Act, policy inferences along with factual determinations must not escape “exacting scrutiny” even though inferences cannot be strictly verified. Id. at 475. See also Assoc. Indus. v. Dep’t of Labor, 487 F.2d 342, 349 (2d Cir. 1973).
193 U.S.App.D.C. 195, 198, 593 F.2d 1349, 1352 (D.C. Cir. 1979).
143 U.S.App.D.C. 383, 394, 444 F.2d 841, 852 (D.C. Cir. 1970), that even in reviewing agency adjudication, the essential requirement is reasoned decisionmaking. See generally Assoc. Indus. v. Dep’t of Labor, 487 F.2d 341, 349-50 (2d Cir. 1973) (convergence between “substantial evidence” and “arbitrary or capricious” criteria).
162 U.S.App.D.C. at 363, 499 F.2d at 473; Assoc. Indus. v. Dep’t of Labor, 487 F.2d at 348-49 (discussing legislative history of scope of review provision).
What we are entitled to at all events is a careful identification by the Secretary, when his proposed standards are challenged, of the reasons why he chooses to follow one course rather than another. Where that choice purports to be based on the existence of certain determinable facts, the Secretary must, in form as well as substance, find those facts from evidence in the record. By the same token, when the Secretary is obliged to make policy judgments where no factual certainties exist or where facts alone do not provide the answer, he should so state and go on to identify the considerations he found persuasive.
162 U.S.App.D.C. at 339-40, 499 F.2d at 475-76.
1) publication of the proposed rule in the Federal Register, § 655(b)(2);
2) opportunity for interested parties to submit “written data or comments” within thirty days after publication of the proposed rule, § 655(b)(2);
3) opportunity for interested parties to submit “written objections to the proposed rule . . . and request a public hearing on such objections,” § 655(b)(3);
4) publication in the Federal Register of time and place for hearing scheduled on objections to proposed standard, § 655(b)(3); and
5) promulgation of final rule, or decision not to issue one, within sixty days after period permitted for written comments, or within sixty days after completion of hearing, § 655(b)(4).
These provisions add to the minimal procedures required by the APA, 5 U.S.C. § 553 (1976).
The agency also requires that all relevant information, including submissions and testimony, must be considered in formulating the final standard. 29 C.F.R. § 1911.18(a)(1) (1978). The statement of basis and purpose for the final standard must describe “the significant issues which have been faced, and . . the rationale for their solution.” 29 C.F.R. § 1911.18(b) (1978).
(D.C. Cir. 1971); Automotive Parts Accessories Ass’n v. Boyd,
132 U.S.App.D.C. 200, 213, 407 F.2d 330, 343 (D.C. Cir. 1968); 5 U.S.C. § 706(2)(C) (1976).
158 U.S.App.D.C. 252, 254, 485 F.2d 1031, 1033 (D.C. Cir. 1973); 5 U.S.C. § 706(2)(D) (1976).
(D.C. Cir. 1978).
Where a statute is precautionary in nature, the evidence difficult to come by, uncertain, or conflicting because it is on the frontiers of scientific knowledge, the regulations designed to protect the public health, and the decision that of an expert administrator, we will not demand rigorous step-by-step proof of cause and effect. Such proof may be impossible to obtain if the precautionary purpose of the statute is to be served. . . . The Administrator may apply his expertise to draw conclusion from suspected, but not completely substantiated, relationships between facts, from trends among facts, from probative preliminary data not yet certifiable as `fact,’ and the like.
Ethyl Corp. v. EPA, 176 U.S.App.D.C. 373, 400, 541 F.2d 1, 28
(D.C. Cir. 1976) (citations omitted). See Amoco Oil Co. v. EPA,
163 U.S.App.D.C. 162, 180-81, 501 F.2d 722, 740-41 (D.C. Cir. 1974) (reasons and explanations, but not findings, required for predictions used in risk regulation).
[W]hen the Secretary is obliged to make policy judgments where no factual certainties exist or where facts alone do not provide the answer, he should so state and go on to identify the considerations he found persuasive.
162 U.S.App.D.C. at 340, 499 F.2d at 476.
Thus, a court applying the substantial evidence test to a numerical standard considers “whether the agency’s numbers are within a `zone of reasonableness,’ not whether its numbers are precisely right.” Hercules, Inc. v. EPA, 194 U.S.App.D.C. 172, 188, 598 F.2d 91, 107 (D.C. Cir. 1978). Similarly, the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. Environmental Defense Fund v. EPA, 167 U.S.App.D.C. 71, 77, 510 F.2d 1292, 1298
(D.C. Cir. 1975); accord Bayside Enterprises, Inc. v. NLRB, 429 U.S. 248, 302, 97 S.Ct. 576, 50 L.Ed.2d 494 (1976).
implementation of medical surveillance. Consequently, the mills studies by the textile industry lacked a necessary precondition — a dust level of at least 500 g/m[3] — validly to test the industry’s contention that their proposal would be as effective as OSHA’s lower PELs in reducing the prevalence of byssinosis.
OSHA also identified substantial, unexplained differences between the percentage of workers who reported subjective byssinosis symptoms and the percentage of those showing pulmonary function decrements indicative of the disease. The textile industry refers to workers’ subjective health reports but not to the objective, pulmonary function measurements. The Union petitioners note that workers sometimes falsely deny byssinosis symptoms for fear of losing their jobs if their employer learns that their health is impaired. AFL-CIO, American Textile Manufacturers Institute, Inc., et al., Petitioners Reply Brief and Brief in Intervention at 42 n. 55 [hereinafter Union Reply Brief].
OSHA also criticized the industry studies on a number of other grounds. 43 Fed.Reg. 27356-57. First, none of the studies had been subjected to peer review through publication in scientific journals. None of them produced dose-response data, that is, data charting medical responses to different dust levels. The populations studied may not be representative of the entire affected population. Finally, the validity of the studies could not be verified because the textile industry declined to furnish the underlying data, and in some cases, failed to produce the authors of the studies for cross-examination at the hearing. Consequently, OSHA concluded that these studies provided insufficient basis for the regulation.
to reduce the cost of compliance”:
[R]espirators have many disadvantages which preclude primary reliance or co-reliance on respiratory protection on an equal basis with engineering and work practice controls. The many difficulties . . . were enumerated at the hearing . . . because of difficulties in face fit, it is difficult to know whether the respirator actually provides adequate protection; respirators, by interfering with vision, hearing, and mobility, can cause safety problems; some employees cannot wear respirators because of breathing difficulties.
43 Fed.Reg. 27384 (1978).
The need for a dust control strategy was a constant theme of expert testimony. Drs. Merchant and Bouhuys, for example, both recommended PELs well below the 500 g/m[3] level proposed by the textile industry. At the hearing, Dr. Bouhuys and NIOSH recommended a 200 g/m[3] PEL. J.A. 1233, 1448. Dr. Merchant recommended a PEL of 100 g/m[3]. J.A. 369. Even Dr. Weill, who appeared on behalf of the textile industry, declined to endorse the industry’s proposed PEL. Instead he recommended that the PEL be set somewhere between 200 g/m[3] and 500 g/m[3]. J.A. 1237.
(D.C. Cir. 1974) (discussing asbestos standard).
(D.C. Cir. 1974).
162 U.S.App.D.C. at 342, 499 F.2d at 478.
During the first stage, raw cotton is cleaned and prepared for spinning into yarn. This first stage involves opening, picking, carding, drawing, and roving the cotton. The second stage transforms the prepared cotton into yarn and packages it for subsequent processing. The principal operation in this stage is spinning, during which the prepared cotton slivers are elongated. The next operations in this stage consolidate units of spun yarn and prepares them for weaving by twisting, winding, spooling, and warping. The third stage of operations involves slashing and weaving. Slashing adds sizing to the yarn; weaving then interlaces two sets of yarn to produce a woven fabric. Under the cotton dust standard, the first two stages are classified together as “yarn manufacturing.” Id. at 7-8.
industry has had less experience with specific controls past roving. OSHA recognizes these difficulties and further recognizes that increased effort may be necessary in some instances to achieve compliance with the exposure limits prescribed for the textile operations. Yet, the evidence in the record demonstrates the feasibility of adopting dust control principles, proven successful in other operations, to new stages of the process.
32 Fed.Reg. 27362 (1978). The agency also concluded generally that “inherent operational difficulties found in some operations may require increased effort to reduce dust levels to 200
g/m[3]; however, OSHA agrees with RTI’s assessments and concludes that the vast majority of workplaces will be able to comply with little difficulty.” Id. at 27367. (“RTI” is the Research Triangle Institute which completed the “Technological Feasibility Assessment and Final Inflationary Impact Statement” for OSHA. J.A. 457.
OSHA’s brief merely cites several instances where dust levels in [the twisting, winding, spooling and warping] operations are at or below 0.5 mg/m[3] or 0.2 mg/m[3]. None of these references prove, or even suggest, that the required 0.2 mg/m[3] either exists on a constant basis or is being achieved by the application of dust control equipment.
Textile Reply Br. at 8.
No. 75-2157 (D.C.D.C.). The district court judge repeatedly admonished the government to promulgate the standard without improper delay. See Transcript of Proceedings on June 6, 1978. Secretary of Labor Marshall makes reference to this suit in his May 24, 1978 “Memorandum . . . to President Carter Urging Issuance of Cotton Dust Standard.” 8 BNA Occupational Safety and Health Reporter 54-55 (June 8, 1978).
recognizes that many of the matters considered in this proposal are controversial and that gaps exist in the available scientific evidence. OSHA believes, however, that in this case we are dealing with an agent or agents that are extremely harmful to man. The existence of unanswered questions cannot be permitted to delay the process of proposing a standard for protecting workers exposed to cotton dust, as tens of thousands of workers are believed to suffer from the effects of exposure. OSHA hopes that the public participation which is invited will help to fill whatever gaps exist.
41 Fed.Reg. 56508 (1976).
D). See also “Technological Feasibility and Economic Impact of Regulations for Cotton Dust: Testimony to be Presented by The Research Triangle Institute at Public Hearing,” (1977) (reprinted at J.A. Vol. II, 1320-80).
While OSHA recognizes the validity of estimating compliance costs for retrofit controls, OSHA also recognizes the existing trend toward replacement of conventional machines with newer equipment which is more productive and produces less dust and which would lead to the prediction of fewer machines to be retrofitted or to be controlled[.]
43 Fed.Reg. 27372.
Most of the changes from the proposal in this final regulation have cost reducing effects. The principal cost reducing change is the increase in the permissible exposure level from 200 to 750 g/m[3] for slashing and weaving. In some cases of control costs this difference in cost as a result of a higher PEL is not assessed. However, in other cases of control costs, such as slashing and weaving, because the need for certain engineering controls and/or amounts of air and filtration would be changed costs were shown to be reduced significantly.. For this reason OSHA has adopted the [AMTI] estimate for slashing and weaving which predicted a level of 1000 g/m[3] instead of the RTI estimate for slashing and weaving at 200 g/m[3].
43 Fed.Reg. 27371 (1978).
162 U.S.App.D.C. 331, 342, 499 F.2d 467, 478 (D.C. Cir. 1974).
162 U.S.App.D.C. 331, 342, 499 F.2d 467, 478 (D.C. Cir. 1974).
is not a rule or formula which would make the decision or predetermine the choice for the decision maker. Rather, it refers to the systematic analysis and evaluation of alternative courses of action drawing upon the analytical tools and insights provided by economics and decision theory. It is a framework and a set of procedures to help organize the available information.
National Academy of Sciences, Decision Making for Regulating Chemicals in the Environment 39 (1975) (report prepared by National Research Council).
182 U.S.App.D.C. 153, 168, 559 F.2d 774, 789 (D.C. Cir. 1977) (footnote omitted):
The requirement that the risk [posed by mechanical hazards] be “unreasonable” necessarily involves a balancing test like that familiar in tort law: The regulation may issue if the severity of the injury that may result from the product, factored by the likelihood of the injury, offsets the harm the regulation itself imposes upon manufacturers and consumers.
See also Aqua Slide “N” Dive v. Consumer Product Safety Comm’n, 569 F.2d 831, 839, 844 (5th Cir. 1978) (using Forester
balancing test definition for “unreasonable risk”); id.
182 U.S.App.D.C. 153, 224, 559 F.2d at 845 (Wisdom, J., concurring) (requiring substantial evidence for Commission’s cost-benefit analysis).
As OSHA points out, when Congress wishes to require cost-benefit analysis, it does so explicitly; when it wishes a feasibility constraint instead, it so states. See OSHA Brief at 121 n. 96 (citing legislative history of Mine Safety and Health Amendments of 1977, where Congress rejected amendments that would insert cost-benefit analysis).
The Costs that will be incurred by employers in meeting the standards of health and safety to be established under this bill are, in my view, reasonable and necessary costs of doing business. Whether we, as individuals are motivated by simple humanity or by simple economics, we can no longer permit profits to be dependent upon an unsafe or unhealthy workplace.
Legis.Hist. at 1150-51 (from the Congressional Record, Senate, Dec. 16, 1970).
[W]hen Congressman O’Hara and I introduced into the House and Senate the first comprehensive occupational health and safety bill, we drew the critical fire of several organizations who claim that legislation of this type is too expensive.
One may well ask too expensive to whom? Is it too expensive for the company who for lack of proper safety equipment loses the service of its skilled employees? Is it too expensive for the employee who loses his hand or leg or eyesight? Is it too expensive for the widow trying to raise her children on meager allowance under workman’s compensation and social security? And what about the man — a good hard-working man — tied to a wheel chair or hospital bed for the rest of his life? That is what we are dealing with when we talk about industrial safety.
Legis.Hist. at 510.
section 28 of the Act (amending section 7(b) of the Small Businesses Act, 15 U.S.C. § 636 (1976)); Cong. Record (Senate) (Nov. 17, 1970), Legis.Hist. at 525-26 (remarks of Sen. Dominick).
Even the price of one life is too expensive when a meaningful occupational safety and health law could save many lives. . . . The well-being of every American working man and woman is an essential human right which we can no longer deny.
H.R. Rep. No. 91-1291, 91st Cong., 2d Sess. 35 (1970), reprinted in Legis.Hist. at 865.
126 U.S.App.D.C. 376, 381, 379 F.2d 153, 158 (D.C. Cir. 1967). In this light, the “reasonably necessary or appropriate” language grants OSHA considerable discretion in adopting protective strategies to guard against particular health risks. While cost-benefit and cost-effectiveness analyses are techniques that can assist evaluations of such strategies, they are not required by the Act’s provisions.
(5th Cir. 1978) (swimming pool slides); and Florida Peach Growers Ass’n v. Dep’t of Labor, 489 F.2d 120 (5th Cir. 1974) (pesticide residue). See Textile Brief at 37-38, 53-59.
This court, however, is bound by its construction of the feasibility requirement in Industrial Union Department v. Hodgson, 162 U.S.App.D.C. 331, 341-422, 499 F.2d 467, 477-78
(D.C. Cir. 1974) (asbestos dust), which has been adopted i American Iron Steel Inst. v. OSHA, 477 F.2d 825, 835-36 (3d Cir. 1978) (coke oven emissions), petitions for cert. pending,
Nos. 78-918, 78-919; AFL-CIO v. Brennan, 530 F.2d 109 (3d Cir. 1975) (revoking rule against permitting any workers’ hands in machine dies). See page ___ of 199 U.S.App.D.C., page 655 of 617 F.2d supra.
Finally, petitioners mistakenly rely on two more cases from other circuits that have little relevance to this case. Florida Peach Growers Association v. Dep’t of Labor, supra, concerned the issuance of emergency standards under § 6(c) of the Act, 29 U.S.C. § 655(c) (1976). Turner Co. v. Sec’y of Labor, supra,
similarly is inapposite. It involved the appeal of an enforcement proceeding against a single manufacturer under an existing noise standard. Although requiring a cost-effectiveness analysis by the agency the Seventh Circuit in Turner Co. explicitly endeavored to distinguish the noise regulated in that case from other hazards that pose “serious debilitating threats.” Id. at 86. Just such a serious risk is posed by cotton dust exposure.
Cost-benefit analyses are also invariably flawed. The reasons for this are well-known: the difficulty of identifying and quantifying many costs and benefits; the inevitably arbitrary nature of valuations of human life or health; . . . the problem of interpersonal and intergenerational comparisons of utility; and many others.
Quade, supra at 25-26.
all non-textile industries including but not limited to: warehousing, compressing of cotton lint, classing and marketing, using cotton yarn (i. e., knitting), reclaiming and marketing of textile manufacturing waste, delinting of cottonseed, marketing and converting linters, reclaiming and marketing of gin motes and batting, yarn felt manufacturing using waste cotton fibers and byproducts.
43 Fed.Reg. 27360 (1978).
(1978). This court will not reach beyond the record to displace the agency’s judgment that conclusive evidence is not yet available to isolate the causal agent.
194 U.S.App.D.C. 143, 164-166, 598 F.2d 62, 83-85 (D.C. Cir. 1978) (approving extrapolation from knowledge about highly chlorinated polychlorinated biphenyls (PCBS) to less chlorinated PCBS). Petitioners claim that this case is inapplicable here because the court relied on the “ample margin of safety” section 307(a) of provision in Federal Water Pollution Control Act Amendments of 1972. 33 U.S.C. § 1317(a) (1976). Non-Textile Reply Brief at 16-17. For the purposes of permitting extrapolations, OSHA’s duty to ensure that “no employee will suffer material impairment of health,” 29 U.S.C. § 655(b)(5), is no less protective than the “ample margin of safety” provision. Further, deference to agency expertise and recognition of administrative feasibility also contributed to this court’s approval of the agency’s use of inference and extrapolation in EDF v. EPA. Id.
194 U.S.App.D.C. at 167-169, 598 F.2d at 86-88. These considerations apply with equal force here. See also American Federation of Labor v. Brennan, 530 F.2d at 115 (reviewing court does not sit to determine “scientific superiority” of agency’s extrapolations).
OSHA also had evidence of lung impairments in domestic nontextile industries, but generally these effects were less severe. (E. g., Statement of Dr. K. D. McMurrain, J.A. 2719, reviewing Jones and Weill Study of cottonseed oil mills).
(D.C. Cir. 1974):
Where . . . the regulations turn on choices of policy, on an assessment of risks, or on predictions dealing with matters on the frontiers of scientific knowledge, we will demand adequate reasons and explanations, but not “findings” of the sort familiar from the world of adjudication.
In Soc’y of Plastics v. OSHA, 509 F.2d at 1308, the Second Circuit observed that “though the factual finger points, it does not conclude.” Nonetheless, the court concluded that OSHA is authorized “to act even in circumstances where existing methodology or research is deficient.” Id.
167 U.S.App.D.C. 100, 511 F.2d 338 (D.C. Cir. 1975). OSHA has commendably committed itself to reviewing the standard it set for cotton gins “at the end of five years, or earlier if sufficient evidence of the need for a specific exposure limit is presented.”43 Fed.Reg. 27424 (1978) (standard to appear at 29 C.F.R. § 1910.1046, 1928.21). It would seem advisable for it to undertake a similar commitment for the non-textile standard at issue here.
162 U.S.App.D.C. 331, 342, 499 F.2d 467, 478 (D.C. Cir. 1974).
Note 14 supra.
162 U.S.App.D.C. at 339-310, 499 F.2d at 475-476. The Supreme Court noted recently that “complete factual support in the record for the [agency’s] judgment or prediction is not possible or required” where assessments of future events are at issue. FCC v. Nat’l Citizens Comm. for Broadcasting, 436 U.S. 775, 98 S.Ct. 2096, 2122, 56 L.Ed.2d 697 (1978) (regulation of common ownership of broadcast station and newspaper in same community). See also Bradford Nat’l Clearing Corp. v. SEC, 191 U.S.App.D.C. 383, 401-02, 590 F.2d 1085, 1103-04 (D.C. Cir. 1978) (judicial deference to agency increases where agency decision based primarily on predictions).
to the extent that the existing secular decline in the number of mills continues and is accelerated by the costs of complying with the 500 g/m[3] regulation, the industry estimate overstates the prediction of the capital costs of compliance by including the costs of all 83 firms presently in operation.
43 Fed.Reg. 27376 (1978). The force of this reasoning eludes us. The agency apparently concedes that the standard will contribute to the closing of some mills. Certainly, if some mills close, the industry’s total compliance costs will decline. But this logic sidesteps the issue at hand: will the anticipated shut-downs so devastate the industry as to render the standard economically infeasible? See 162 U.S.App.D.C. 341-42, 499 F.2d at 477-78. Absent clearer indication of the agency’s position, we cannot reach the question of what portion of an industry must be crippled by a standard for it to be deemed economically infeasible.
It would appear to be consistent with the purposes of the Act to envisage the economic demise of an employer who has lagged behind the rest of the industry in protecting the health and safety of employees and is consequently financially unable to comply with new standards as quickly as other employers. As the effect becomes more widespread within an industry, the problem of economic feasibility becomes more pressing.
162 U.S.App.D.C. at 342, 499 F.2d at 478 (citation omitted). Without a clearer indication of the agency’s reasoning in this case, we are unable to discern whether the scope of the anticipated shutdowns is consistent with the purposes of the Act or whether instead it begins to put the standard’s economic feasibility in jeopardy. Nor are we given a cost estimate that can be apportioned to the surviving mills, and thus no evidence as to their ability to bear the costs of the standard.
Some firms which may experience losses or may apparently be marginal in their profit position may decide to close. OSHA does not view such closings necessary as a result of regulation in view of secular decline in the number of oil mills over the decade.
43 Fed.Reg. 27376 (1978) (emphasis added).
[S]ince seed is a fiber byproduct, input supply for the industry is likely to be very price inelastic (amount of seed available generally remains the same regardless of price). Seed prices are subject to modification and costs as reflected in reduction of seed prices can be shifted forward by the fiber producers to the buyers of their main product, raw cotton.
43 Fed.Reg. 27375 (1978).
The study also concluded that assumptions about growers’ conduct would not be made with confidence in light of the anticipated disruption from the entire standard. OSHA asserted that the final standard would not be disruptive, OSHA Brief at 118 n. 94, but this would suggest only that it would not be impossible on that ground alone for costs to be passed back to the growers.
(i) he is unable to comply with a standard by its effective date because of unavailability of professional or technical personnel or of materials and equipment needed to come into compliance with the standard or because necessary construction or alteration of facilities cannot be completed by the effective date, (ii) he is taking all available steps to safeguard his employees against the hazards covered by the standard, and (iii) he has an effective program for coming into compliance with the standard as quickly as practicable.
See Industrial Union, 162 U.S.App.D.C. at 343-44, 499 F.2d at 479-80.
162 U.S.App.D.C. at 343, 499 F.2d at 479.
Due to the high incidence of diminished pulmonary function among existing cotton dust workers OSHA expects that some employees will be found to be incapable of wearing a single use or other form of negative pressure respirators. . . . [C]ertain employees will be incapable of even wearing a PAPR [powered air purifying respirator]. An employee under such circumstances, in the absence of some opportunity to transfer to a position where a respirator need not be worn, might very well be discharged, or otherwise sustain economic loss, due to his or her inability to wear a respirator.
43 Fed.Reg. 27387 (1978).
(1978). OSHA points to expert testimony that supports its decision to require the more expensive, reusable respirators. As the record shows that less costly single-use respirators cannot be relied upon at such dust levels, whenever the time-weighted exposure level exceeds five times the prescribed level. J.A. 3604, OSHA’s determination is adequately supported.
189 U.S.App.D.C. 182, 188-89, 381 F.2d 960, 966-67, 972 (D.C. Cir. 1978) (procedural defect where OSHA rule significantly differs in final form earlier version available to Advisory Committee).
As we have previously held, the requirement of submission of a proposed rule for comment does not automatically generate a new opportunity for comment merely because the rule promulgated by the agency differs from the rule it proposed partly at least in response to submissions.[51] [51] A contrary rule would lead to the absurdity that in rulemaking under the APA the agency can learn from the comments on its proposals only at the peril of starting a new procedural round of commentary. [footnote in original].
International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 632 and 632 n. 51.
Our review function would have been greatly facilitated if OSHA had organized the material in the rulemaking record in some logical fashion. A more systematic identification of the topics of different pieces of testimony, the comments that pertain to particular studies, and the questions that remained unanswered by the proceedings would have eased our task on review and also presented the agency’s case more forcefully.
Thus, although we are satisfied that the agency met its burden on review except for the application of the standard to the cottonseed oil industry, we reach that conclusion only after a tedious and at times frustrating review of the record.