Pub Citizen Health v. OSHA ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
2-23-2009
Pub Citizen Health v. OSHA
Precedential or Non-Precedential: Precedential
Docket No. 06-1818
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 06-1818 and 06-2604
_____________
PUBLIC CITIZEN HEALTH RESEARCH GROUP;
THE UNITED STEEL, PAPER AND FORESTRY,
RUBBER, MANUFACTURING, ENERGY, ALLIED
INDUSTRIAL AND SERVICE WORKERS
INTERNATIONAL UNION,
Petitioners in No. 06-1818
v.
UNITED STATES DEPARTMENT OF LABOR,
OCCUPATIONAL SAFETY AND
HEALTH ADMINISTRATION,
Respondent
Aerospace Industries Association of America, Inc.,
Portland Cement Association**,
Surface Finishing Industry Council*,
Color Pigments Manufacturers Association, Inc.,
National Association of Manufacturers
and Specialty Industry of North America,
Intervenors
(*Dismissed - See Court's Order dated 12/13/06)
(**Dismissed - See Court's Order dated 06/26/07)
_____________
EDISON ELECTRIC INSTITUTE,
Petitioner in No. 06-2604
v.
OCCUPATIONAL SAFETY AND
HEALTH ADMINISTRATION,
UNITED STATES DEPARTMENT OF LABOR,
Respondent
Aerospace Industries Association of America, Inc.,
Portland Cement Association**,
Surface Finishing Industry Council*,
Color Pigments Manufacturers Association, Inc.,
National Association of Manufacturers
and Specialty Industry of North America,
Intervenors
(*Dismissed - See Court's Order dated 12/13/06)
(**Dismissed - See Court's Order dated 06/26/07)
Appeals from the United States Department of Labor
Occupational Safety & Health Administration
(Agency No. OSHA-1: H054A)
2
Argued November 21, 2008
Before: SCIRICA, Chief Judge,
RENDELL, Circuit Judge,
and O’CONNOR, Retired Associate Justice,
U.S. Supreme Court*
(Filed February 23, 2009)
Scott L. Nelson, Esq. [ARGUED]
Public Citizen Litigation Group
1600 20th Street, N.W.
Washington, DC 20009
Counsel for Non Party - Petitioners
Public Citizen’s Health Research Group and
United Steel, Paper and Forestry, Rubber,
Manufacturing, Energy, Allied Industrial and
Service Workers International Union
(continued)
__________________
* Honorable Sandra Day O’Connor, retired Associate
Justice of the United States Supreme Court, sitting by
designation.
3
Stephen C. Yohay [ARGUED]
Ogletree, Deakins, Nash, Smoak & Stewart
2400 N Street, N.W., 5th Floor
Washington, DC 20037
Counsel for Non Party Petitioner
Edison Electric Institute
Charles F. James, Esq.
Gary K. Stearman, Esq. [ARGUED]
Lauren S. Goodman, Esq.
U.S. Department of Labor
Office of the Solicitor
200 Constitution Avenue, N.W.
Washington, DC 20210
Counsel for Non Party - Respondent
Occupational Safety and Health Administration
United States Department of Labor
Douglas J. Behr, Esq.
Lawrence P. Halprin, Esq.
Keller & Heckman
1001 G Street, N.W.
Suite 500 West
Washington, DC 20001
Counsel for Non Party - Intervenor Respondent
Aerospace Industries Association of America, Inc.
(continued)
4
Glenn C. Merritt, Esq.
Fitzpatrick & Merritt
90 West 40th Street
P.O. Box 1227
Bayonne, NJ 07002
Counsel for Non Party - Intervenor Respondent
Color Pigments Mfg.
Wayne J. D’Angelo, Esq.
Kathryn M.T. McMahon-Lohrer, Esq.
John L. Wittenborn, Esq.
Kelley, Drye & Warren
3050 K Street, N.W., Suite 400
Washington, D.C. 20007
Counsel for Non Party - Intervenor Respondent
Specialty Steel Industry of North America
OPINION OF THE COURT
RENDELL, Circuit Judge.
Petitioners challenge a standard promulgated by the
Occupational Safety and Health Administration (“OSHA”) to
regulate the occupational exposure of workers to hexavalent
chromium (“Cr(VI)”), a toxic substance. Public Citizen Health
5
Research Group and the United Steel, Paper and Forestry,
Rubber, Manufacturing, Energy, Allied Industrial and Service
Worker’s International Union, (collectively “HRG”) join in
arguing that OSHA violated its statutory mandate in adopting a
standard that under-regulates Cr(VI) exposure. The Edison
Electric Institute (“EEI”) separately argues that OSHA
improperly adopted a standard that is over-inclusive of coal and
nuclear electric power generating plants. For the reasons stated
below, we will grant HRG’s petition with regard to the
employee exposure notification requirements of the standard.
We will deny both petitions on all other grounds.
I. Background
Cr(VI) is a state of the metal chromium that generally
results from man-made processes. Occupational Exposure to
Hexavalent Chromium, 71 Fed. Reg. 10,100, 10,104 (Feb. 28,
2006). Compounds containing Cr(VI) can exist in mist, dust, or
fume form, and have long been known to jeopardize the health
of workers when inhaled, or upon contact with skin. Cr(VI) has
been known to cause lung cancer, asthma, and damage to skin
and the lining of the nasal passage. Id. at 10,108. Compounds
containing Cr(VI) are used intentionally to perform metal
electroplating, and in the production of chemical catalysts and
pigments for textile dyes, paints, inks, glass, and plastics.
Cr(VI) compounds are also encountered incidentally, for
example as a by-product of certain welding processes, and as an
impurity found in portland cement. Id. According to OSHA,
6
there are over 30 industry sectors in which workers may be
exposed to Cr(VI). Id. at 10,246-55.
In 1971, OSHA adopted a permissible exposure limit
(“PEL”) of 52 micrograms of Cr(VI) per cubic meter, or
52 µg/m 3 , which had been a recommended industry limit since
1943. Id. at 10,101-03. The early standard was established to
protect nasal tissues from irritation and damage, but, over time,
government and private organizations came to recognize Cr(VI)
as a carcinogen. Id. at 10,103. In 1998, this Court denied a
petition by the Oil, Chemical and Atomic Workers Union and
Public Citizen’s Health Research Group to compel OSHA to
establish a lower PEL for Cr(VI). Oil, Chem. & Atomic Workers
Union v. OSHA, 145 F.3d 120 (3d Cir. 1998). In 2002,
however, this Court directed OSHA to “proceed expeditiously
with its [Cr(VI)] rulemaking” after finding that OSHA’s delay
in promulgating a new standard had become unreasonable. Pub.
Citizen Health Research Group v. Chao, 314 F.3d 143, 159
(3d Cir. 2002).
OSHA subsequently proposed a new Cr(VI) standard in
2004, and opened the matter for comment. The proposed rule
contemplated reducing the PEL from 52 to 1 µg/m 3 .
Occupational Exposure to Hexavalent Chromium, 69 Fed.
Reg. 59,306 (Oct. 4, 2004). After extensive comments and
hearings, OSHA issued its final rule on February 28, 2006.
71 Fed. Reg. 10,100. Upon examining the health risks to
workers, and the feasibility of implementing various PELs,
7
OSHA replaced the proposed 1 µg/m 3 PEL with a universal PEL
of 5 µg/m 3 . 71 Fed. Reg. 10,100-385. OSHA issued corrections
to the final rule on June 23, 2006, and a minor amendment on
October 30, 2006, reflecting a settlement agreement with
various parties. 71 Fed. Reg. 36,008 (June 23, 2006); 71 Fed.
Reg. 63,238 (Oct. 30, 2006).
HRG and EEI level a number of attacks on the
methodology employed and conclusions reached by OSHA. We
accordingly summarize OSHA’s relevant methodology and
findings as background for our decision.
A. Estimation of Health Risk
In adopting a new standard, OSHA must establish that
workers face a significant risk of material harm. OSHA
considered more than 40 studies of workers in order to assess
the relationship between exposure to Cr(VI) and lung cancer.
71 Fed. Reg. 10,175. OSHA decided to base its risk analysis on
the so-called “Gibb” and “Luippold” cohorts, which were both
derived from studies of workers in chromate production
facilities. Id. at 10,176, 10,220. According to OSHA,
the Gibb cohort and the Luippold cohort, were
found to be the strongest data sets for quantitative
assessment . . . . Of the various studies, these two
had the most extensive and best documented
Cr(VI) exposures spanning three or four decades.
8
Both cohort studies characterized observed and
expected lung cancer mortality and reported a
statistically significant positive association
between lung cancer risk and cumulative Cr(VI)
exposure.
Id. at 10,176.
OSHA found that a “linear relative risk model” best
described the relationship between Cr(VI) exposure and lung
cancer, whereby the exposure level over the course of a
hypothetical 45-year career was directly correlated to the risk of
cancer. Id. at 10,194. OSHA used the Gibb and Luippold
cohorts to establish upper and lower estimates of cancer cases
per 1000 workers, and tabulated the estimated cases for
exposure levels ranging from 0.25 µg/m 3 to the pre-existing PEL
of 52 µg/m 3 . Id. at 10,195. According to the resulting table,
exposure at 1 µg/m 3 would result in an estimated 2.1 to 9.1
cancer cases, exposure at 5 µg/m 3 would result in 10 to 45 cases,
and exposure at the pre-existing PEL would result in 101 to 351
cases. Id.
Based in part on this information, OSHA concluded that
“Cr(VI) causes ‘material impairment of health or functional
capacity’ within the meaning of the OSH Act.” Id. at 10,221.
OSHA further determined that the cancer risk of 100 to 350
cases under exposure at the pre-existing 52 µg/m 3 PEL was
“clearly significant.” Id. at 10,224. OSHA also found that the
9
estimated 10 to 45 cases at a career exposure level of 5 µg/m 3 ,
the PEL ultimately selected, would represent a substantial
improvement, but the risk of impairment would remain “clearly
significant.” Id.
B. Feasibility Analysis
By law, OSHA is required to demonstrate both the
“technological” and “economic” feasibility of a standard. After
exploring the technological and economic feasibility of
alternative Cr(VI) PELs, OSHA concluded that implementation
of the proposed 1 µg/m 3 PEL would not be feasible. Although
the agency recognized that a PEL of 5 µg/m 3 still presented
significant health risks to workers, the agency found the higher
level to be feasible, and adopted it as a universal PEL. A
summary of OSHA’s relevant technological and economic
feasibility analyses follows.
1. Technological Feasibility
To assess technological feasibility, OSHA expressly
applied the standard articulated by the Court of Appeals for the
D.C. Circuit in United Steelworkers of America, AFL-CIO-CLC
v. Marshall, 647 F.2d 1189 (D.C. Cir. 1980) (“Lead”). 71 Fed.
Reg. 10,335. The Lead decision provides:
[W]ithin the limits of the best available evidence,
and subject to the court’s search for substantial
10
evidence, OSHA must prove a reasonable
possibility that the typical firm will be able to
develop and install engineering and work practice
controls that can meet the PEL in most of its
operations.
647 F.2d at 1272. OSHA explained that, in harmony with the
Lead standard, it favored engineering and work practice controls
to reduce the presence of toxins in the air over reliance on
respirators.1 OSHA explained its “long-held view” that
extensive reliance on respirators to achieve a PEL should be
avoided due to independent health, safety, and reliability
problems that arise when workers are required to perform tasks
with respirators. 71 Fed. Reg. 10,335.
1
“‘Engineering controls’ employ mechanical means or process
redesign to eliminate, contain, divert, dilute, or collect [toxin]
emissions at their source.” Occupational Exposure to Lead,
43 Fed. Reg. 52,952, 52,989 (Nov. 14, 1978). “‘Work practice
controls’ . . . accomplish the same results as engineering
controls, but rely upon employees to repeatedly perform certain
activities in a specified manner so that airborne lead
concentrations are eliminated or reduced,” and include
administrative controls, such as “moving the employee to a
place of lower exposure or reducing his work hours.” Id. at
52,989.
11
For technological feasibility purposes, OSHA chose to
define employee exposure in terms of “application groups,” or
“groups of firms where employees are exposed to Cr(VI) when
performing a particular function,” rather than in terms of
product-based industries. Id. at 10,226. OSHA justified this
approach as follows:
This methodology is appropriate to exposure to
Cr(VI) where a widely used chemical like
chromium may lead to exposures in many kinds of
firms in many industries but the processes used,
exposures generated, and controls needed to
achieve compliance may be the same. For
example, because a given type of welding
produces Cr(VI) exposures that are essentially the
same regardless of whether the welding occurs in
a ship, or a construction site, as part of a
manufacturing process, or as part of a repair
process, it is appropriate to analyze such
processes as a group.
Id. OSHA accordingly identified and analyzed dozens of
application groups in which employees were exposed to Cr(VI).
Id. at 10,228-44.
OSHA concluded that a PEL of 1 µg/m 3 was not
technologically feasible based on several determinations. First,
OSHA positively concluded that it was technologically
12
infeasible for the sectors of welding and aerospace painting to
achieve a 1 µg/m 3 through engineering and work controls alone.
OSHA, Final Economic and Regulatory Flexibility Analysis for
OSHA’s Final Standard for Occupational Exposure to
Hexavalent Chromium, III-331, Feb. 23, 2006 (“FEA”). For
welding, OSHA examined several types of welding processes
employed in general industry, shipyards, and construction. Id.
at III-332. OSHA found that two of the “most common”
welding operations, shielded metal arc welding (“SMAW”) on
stainless steel, and stainless steel welding in confined and
enclosed spaces, could not conform to a 1 µg/m 3 PEL by altering
work processes or through engineering controls. Id. at III-333-
36. Although OSHA recognized that the standard may be
feasible for less common welding operations, “the fact that
welding is not easily separated into high and low exposure
operations render[ed] OSHA unable to conclude that the
proposed PEL of 1 µg/m 3 is technologically feasible for any
welding operations.” Id. at III-336.
OSHA also determined that “approximately two thirds”
of aerospace painting operations could not achieve the 1 µg/m 3
PEL with engineering or work practice controls. Although
smaller parts could be painted in compliance with the PEL
through use of enclosed and ventilated rooms, such treatment for
larger parts and assemblies was impractical. Thus, the proposed
PEL was “not generally feasible for aerospace painting.” Id. at
III-336-37.
13
While OSHA positively concluded that the proposed
1 µg/m 3 PEL was technologically infeasible for welding and
aerospace painting operations, it also found that “the evidence
in the record [wa]s insufficient” for it to conclude that the
1 µg/m 3 would be technologically feasible for four other
industries with relatively few employees. Id. at III-338. For the
three operations of chromate pigment production, chromium
catalyst production, and chromium dye production, OSHA found
a “lack of clear evidence” that it would be technologically
feasible to install protective enclosures to avert widespread
respirator use in order to achieve the proposed PEL. Id. at
III-340. For hard chrome electroplating, OSHA found that the
diversity of such operations, and the lack of evidence as to
whether involved facilities could employ fume suppressants, left
it “unable to conclude that the proposed PEL of 1 µg/m 3 would
be technologically feasible for all hard chrome electroplating
operations.” Id. at III-341.
2. Economic Feasibility
OSHA analyzed economic feasibility by questioning
whether a standard under consideration would eliminate or alter
the competitive structure of an industry. 71 Fed. Reg. 10,301.
OSHA determined that the proposed 1 µg/m 3 PEL was
economically infeasible for electroplating job shops, which are
businesses dedicated to providing electroplating services to
others. OSHA concluded that these shops could not be expected
to absorb the costs to comply with a 1 µg/m 3 standard. The
14
Agency found that compliance costs would “represent 2.7
percent of revenues and 65 percent of profits.” Id. Under prior
standards, OSHA had ensured that the most affected industries
were not confronted with costs over 2 percent of revenues. Id.
Also, OSHA found that the costs to electroplating job shops
would not be significantly lower even if the shops were
permitted to achieve the proposed 1 µg/m 3 PEL through use of
respirators. Id. OSHA further found that the high costs of
compliance would be similar across various types of plating
shops. Id. On this analysis, OSHA concluded that the proposed
1 µg/m 3 PEL would “alter the competitive structure of the
industry.” Id. In comparison, OSHA determined that the
industry could feasibly absorb the estimated compliance costs of
1.24 percent of revenues associated with a PEL of 5 µg/m 3 . Id.
3. Overall Feasibility
In considering the proposed 1 µg/m 3 PEL, OSHA
determined that the technological and economic infeasibility
determinations discussed above affected “almost 56% of the
total number of employees occupationally exposed to Cr(VI).”
Id. at 10,246-54. OSHA calculated this figure using the
following estimates of affected employees:
• 270,000 in welding
• 33,400 in electroplating job shops
15
• 8,300 in aerospace painting
• 469 in chromium pigment, catalyst, and
dye production
Id. at 10,337. This totals 312,169 employees, or 55.9% of the
estimated 558,431 employees exposed to Cr(VI). OSHA did not
include employees in hard chrome electroplating in order to
avoid double counting workers included in the job shop
electroplating figure. Id. OSHA stated that it “did not receive
data or recommendations regarding setting the PEL at any levels
between 1 µg/m 3 and 5 µg/m 3 ,” 2 but found that a PEL of
5 µg/m 3 was technologically and economically feasible for “all
industries.” Id.
C. Application of a Uniform 5 µg/m 3 PEL
OSHA selected a universal PEL of 5 µg/m 3 that applies
to all industries. Id. at 10,338. OSHA stated that it “has not
interpreted [29 U.S.C. § 6(b)(5)] to require setting multiple
PELs based on the lowest level particular industries or
operations could achieve,” and that, in the face of statutory
silence, “OSHA has the authority to adopt the reasonable
2
Likewise, neither petitioner points to any evidence, nor raises
any argument, suggesting that OSHA should have considered
other exposure limits. Thus, only OSHA’s analyses of the
1 µg/m 3 and 5 µg/m 3 PELs are subject to our review.
16
interpretation that it judges will best carry out the purposes of
the Act.” Id.
Although OSHA recognized that “lower PELs might be
achievable in some industries and operations,” which would
reduce risks to workers, it determined that “these benefits would
be offset by the significant disadvantages of attempting to
establish and apply multiple PELs for the diverse group of
industries and operations covered by the standard.” Id. OSHA
supported this conclusion by stating that multiple PELs would
place an “enormous evidentiary burden on OSHA to ascertain
and establish the specific situations, if any, in which a lower
PEL could be reached,” causing delays in the implementation of
health standards. Id.
Also, OSHA asserted, “the demanding burden of setting
multiple PELs would be complicated by the difficulties inherent
in precisely defining and clearly distinguishing between affected
industries and operations.” Id. The “definitional and line
drawing problem is far less significant when OSHA uses a unit
of industries and operations for analytical but not compliance
purposes,” because the “consequences of imprecise
classifications” for compliance purposes “would become much
more significant.” Id. OSHA determined that the existing
North American Industry Classification System (“NAICS”) for
categorizing businesses would not be appropriate for delineating
multiple PELs because NAICS categorizes businesses by
17
primary activity, and sub-operations involving Cr(VI) would not
necessarily be captured. Id.
OSHA also concluded that “disaggregation by operation
has major practical disadvantages,” in part because “many firms
have exposures in two or more different categories.” Id.
Multiple PELs could therefore require single firms to achieve
multiple standards in the same workplace, and possibly with the
same employees. Employers would also have to monitor for
multiple exposure levels in the same workplace, where the
exposure of a particular employee might not be traceable to a
single task. Id. OSHA determined that a single standard would
make it easier for employers to understand and comply, and
would simplify government enforcement. Id. at 10,338-39.
D. Resulting Regulations
The final rule applies the 5 µg/m 3 PEL through separate
regulatory treatment for general industry, construction, and
shipyards. Id. at 10,100. Only the distinctions pertaining to
general industry, 29 C.F.R. § 1910.1026, and construction,
§ 1926.1126, are relevant to the instant petitions. The PEL
pertains to “occupational exposures to [Cr(VI)] in all forms and
compounds, except” for exposures governed by other
government agencies, exposures to portland cement, or where
employers are exempted by demonstrating that “a specific
process, operation, or activity involving [Cr(VI)] cannot release
dusts, fumes, or mists of [Cr(VI)] in concentrations above 0.5
18
µg/m 3 . . . under any expected conditions of use.” 29 C.F.R.
§§ 1910.1026(a)(4), 1926.1126(a)(4).
Employers are required to use “engineering and work
practice controls to reduce and maintain employee exposure to
[Cr(VI)] to or below the PEL unless the employer can
demonstrate that such controls are not feasible.” Id.
§§ 1910.1026(f)(1)(i), 1926.1126(e)(1)(i). Where further
reductions are not feasible, employers must supplement the
engineering and work practice controls with respiratory
protection. Id. Also, if an “employer can demonstrate that a
process or task does not result in any employee exposure to
[Cr(VI)] above the PEL for 30 or more days per year,” the
employer may use respiratory protection in lieu of engineering
and work practice controls to achieve the PEL. Id.
§§ 1910.1026(f)(1)(ii), (g)(1)(iv), 1926.1126(e)(1)(i), (f)(1)(iv).
Employers are required to educate all affected employees
about the contents of the controlling regulation, and about the
applicable medical surveillance program. Id. §§ 1910.1026(l),
1926.1126(j). The regulations also establish an employee
exposure “action level” of 2.5 µg/m 3 , or one half of the PEL, at
which employers are subject to heightened monitoring burdens.
Id. §§ 1910.1026(b), (d)(2)(iii), 1926.1126(b), (d)(2)(iii).
Employers are also required to notify an employee when
required monitoring procedures indicate that the employee was
exposed to Cr(VI) levels in excess of the PEL. Id.
19
§§ 1910.1026(d)(4), 1926.1126(d)(4). This provision marks a
change from the proposed rule, which would have required
employers to notify employees of all monitoring results,
regardless of the level of exposure detected. 69 Fed.
Reg. 59,450-51.
The predominant difference between the general industry
and construction regulations is that the general industry
regulation has additional requirements for employers. First,
employers subject to the general industry rules must establish
defined and access-controlled “regulated areas” wherever “an
employee’s exposure to airborne concentrations of [Cr(VI)] is,
or reasonably can be expected to be, in excess of the PEL.” Id.
§ 1910.1026(e). Such employers must also comply with detailed
“housekeeping” requirements for the removal and disposal of
Cr(VI). § 1910.1026(j).
The general industry regulation also provides a special
compliance requirement applicable only to the “painting of
aircraft or large aircraft parts in the aerospace industry.” Id.
§ 1910.1026(f)(1)(ii). For such activities, employers need only
achieve Cr(VI) concentrations of 25 µg/m 3 through engineering
and work practice controls, if feasible. Id. Respiratory
protection may be used to achieve the PEL beyond that point.
Id.
20
II. Jurisdiction
We have jurisdiction over the instant petitions pursuant
to 29 U.S.C. § 655(f), which allows “[a]ny person who may be
adversely affected by” an OSHA standard to “file a petition
challenging the validity of such standard with the United States
court of appeals for the circuit wherein such person resides or
has a principal place of business.” Id. HRG’s petition was
timely filed in this Court on behalf of member workers subject
to Cr(VI) exposure. EEI’s member businesses include coal and
nuclear electric power generating facilities that are subject to the
Cr(VI) standard, and its petition was transferred from the D.C.
Circuit pursuant to a consolidation order by the Judicial Panel on
Multidistrict Litigation pursuant to 28 U.S.C. § 2112(a)(3).
III. Review of OSHA Rulemaking
Under the Occupational Safety and Health Act of 1970
(“OSH Act”), as codified in 29 U.S.C. § 655, the Secretary of
Labor is charged with promulgating occupational safety and
health standards. The Secretary’s rulemaking authority has been
delegated to the head of OSHA, the Assistant Secretary for
Occupational Safety and Health. 72 Fed. Reg. 31,160 (June 5,
2007); 67 Fed. Reg. 65,007 (Oct. 22, 2002). Section 655(b)(5)
addresses rulemaking for toxic materials, and provides:
The Secretary, in promulgating standards dealing
with toxic materials or harmful physical agents
21
under this subsection, shall set the standard which
most adequately assures, to the extent feasible, on
the basis of the best available evidence, that no
employee will suffer material impairment of
health or functional capacity even if such
employee has regular exposure to the hazard dealt
with by such standard for the period of his
working life.
29 U.S.C. § 655(b)(5). When OSHA promulgates a new
standard, it must “include a statement of the reasons for such
action, which shall be published in the Federal Register.” Id.
§ 655(e).
Our review of an OSHA standard is limited and
deferential. In executing its statutory mandate, the Agency must
both find facts and make decisions that are ultimately legislative
policy judgments. Am. Iron and Steel Inst. v. OSHA, 577 F.2d
825, 833-34 (3d Cir. 1978) (“AISI”). Our role in reviewing
factual findings is expressly limited by the OSH Act, which
provides that the“determinations of the Secretary shall be
conclusive if supported by substantial evidence in the record
considered as a whole.” 29 U.S.C. § 655(f). Evidence is
“substantial” when “an inference of the fact may be drawn
reasonably.” AISI, 577 F.2d at 831 (internal quotation marks
omitted).
22
Our review of OSHA’s legislative policy judgment is
similarly restrained. We have recognized
that because judicial review of legislative-like
decisions inevitably runs the risk of becoming
arbitrary supervision and revision of the
Secretary’s efforts to effectuate the legislative
purposes in an area where various responses
might each be legitimate in the sight of Congress,
[a court should] remand only those provisions of
[a] standard which le[ave] “nagging questions . .
. as to the reason and rationale for the Secretary’s
particular choices.”
AISI, 577 F.2d at 834 (quoting Indus. Union Dep’t, AFL-CIO v.
Hodgson, 499 F.2d 467, 488 (D.C. Cir. 1974); internal brackets
removed). In applying these considerations to our review of a
PEL for coke oven emissions, we concluded that the Secretary’s
ultimate determination of the appropriate
exposure level is a legislative decision in the
exercise of congressionally delegated powers.
Even though we might have drawn different
inferences from the information before the
Secretary, his conclusion was reasonably drawn
from the record and, therefore, it must be upheld.
Id. at 833. Accordingly, we will not disturb the Cr(VI) PEL, or
23
other policy determination in the instant standard, as long as we
conclude that OSHA’s decision was reasonably drawn from the
record.
We have identified five separate inquiries to organize our
review of standards under section 655(f):
(1) determine whether the Secretary’s notice of
proposed rulemaking adequately informs
interested persons of the action taken;
(2) determine whether the Secretary’s
promulgation adequately sets forth reasons for his
action;
(3) determine whether the statement of reasons
reflects consideration of factors relevant under the
statute;
(4) determine whether presently available
alternatives were at least considered; and
(5) determine whether substantial evidence in the
record as a whole supports the Secretary’s
determination, if it is based in whole or in part on
factual m atters subject to evidentiary
development.
24
AISI, 577 F.2d at 830. We have not labored through each
inquiry in every case, but have limited our consideration to the
particular issues raised by petitioners. See, e.g, id. at 830-41.
In promulgating a standard for toxic materials under
section 655(b)(5), OSHA first bears the burden to demonstrate
that there is a “significant risk” of material harm to workers in
a workplace. AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607,
655 (1980) (“Benzene”) (plurality opinion). The Agency need
not calculate risk with mathematical precision, nor does the
substantial evidence standard require it to support a risk finding
“with anything approaching scientific certainty.” Id. at 655-56.
Furthermore, the “best available evidence” requirement affords
latitude, and “so long as they are supported by a body of
reputable scientific thought, the Agency is free to use
conservative assumptions in interpreting the data with respect
to carcinogens, risking error on the side of overprotection rather
than underprotection.” Id. at 656.
Once OSHA demonstrates the existence of a significant
risk, it must then satisfy the feasibility requirement of section
655(b)(5). This requires OSHA to demonstrate that the standard
is both technologically and economically feasible. AISI, 577
F.2d at 832. While the OSH Act does not define feasibility,
these inquiries are guided by prior decisions. As OSHA did in
explaining the instant standard, numerous courts have relied on
the careful and comprehensive review of OSHA’s lead standard
25
in United Steelworkers of America, AFL-CIO-CLC v. Marshall,
647 F.2d 1189 (D.C. Cir. 1980) (“Lead”).
The technological feasibility test articulated in Lead is
particularly helpful because OSHA’s lead and Cr(VI) standards
follow a similar pattern with regard to the methods employers
may use to control exposure to airborne toxins. As with the
Cr(VI) standard, OSHA established a hierarchy of controls for
lead exposure, preferring engineering controls first, then work
practice controls, and finally personal protective equipment
(primarily respirators). 43 Fed. Reg. 52,990. OSHA stated that
“[r]espiratory protection is relegated to the bottom of the
compliance priority list because it is an ineffective, unreliable,
and unsafe method of reducing employee exposure.” Id.
Although respirators are generally a more economical
alternative for employers, OSHA found that they do not
eliminate the source of exposure, and also introduce independent
occupational hazards, such as restrictions to vision, hearing, and
mobility. Id. OSHA accordingly found respirators to be useful
only on supplementary, interim, or short term bases. Id.
In an effort “to supply the systemic analysis” of
technological feasibility that had previously been lacking, the
Court of Appeals for the D.C. Circuit incorporated OSHA’s
compliance hierarchy into the following test:
[W]ithin the limits of the best available evidence,
and subject to the court’s search for substantial
26
evidence, OSHA must prove a reasonable
possibility that the typical firm will be able to
develop and install engineering and work practice
controls that can meet the PEL in most of its
operations . . . . The effect of such proof is to
establish a presumption that industry can meet the
PEL without relying on respirators . . . .
Insufficient proof of technological feasibility for
a few isolated operations within an industry, or
even OSHA’s concession that respirators will be
necessary in a few such operations, will not
undermine this general presumption in favor of
feasibility.
Lead, 647 F.2d at 1272. The court stated that OSHA could
satisfy its burden by pointing to available technologies, and to
emergent technologies that were “reasonably capable of
experimental refinement and distribution within the standard’s
deadlines.” Id. In light of the D.C. Circuit’s careful and
comprehensive opinion, and the close parallels between
OSHA’s lead and Cr(VI) standards, we deem it appropriate to
conduct our technological feasibility analysis in accordance with
the Lead methodology.
The court in Lead also distilled a comprehensive review
of economic feasibility considerations into a concise standard:
27
[A]s for economic feasibility, OSHA must
construct a reasonable estimate of compliance
costs and demonstrate a reasonable likelihood that
these costs will not threaten the existence or
competitive structure of an industry, even if it
does portend disaster for some marginal firms.
Id. at 1272. We join our sister courts of appeals in applying this
methodology. See, e.g., Color Pigments Mfrs. Ass’n, Inc. v.
OSHA, 16 F.3d 1157, 1163 (11th Cir. 1994); Nat’l Grain &
Feed Ass’n, Inc. v. OSHA, 903 F.2d 308, 311 (5th Cir. 1990);
Forging Indus. Ass’n v. Sec’y of Labor, 773 F.2d 1436, 1453
(4th Cir. 1985). We note that the Supreme Court has
conclusively ruled that economic feasibility does not involve a
cost-benefit analysis. Am. Textile Mfrs. Inst., Inc. v. Donovan,
452 U.S. 490, 513 (1981).
IV. HRG’s Arguments
HRG contends that, contrary to the OSH Act, past
practice, and prior judicial decisions, OSHA promulgated a
Cr(VI) standard that is insufficiently protective of workers.
HRG does not challenge OSHA’s risk determinations, but
argues: (1) OSHA’s determination that a 1 µg/m 3 is infeasible
was factually and legally inadequate; (2) OSHA’s decision to
implement a uniform 5 µg/m 3 PEL for all industries is not
supported by substantial evidence, and departs from judicial and
Agency precedent; and (3) OSHA’s decisions to set the
28
monitoring “action level” at one half of the PEL, and to only
require employee notification of detected exposures exceeding
the PEL, were arbitrary and unexplained. For the reasons stated
below, we will deny HRG’s petition except with regard to
OSHA’s decision to set the employee notification requirement
at the PEL.
A. Infeasibility of 1 µg/m 3 PEL
As discussed above, OSHA concluded that the proposed
PEL of 1 µg/m 3 was infeasible because the Agency could not
prove feasibility in workplaces employing nearly 56% of the
workers exposed to Cr(VI), or 312,169 out of 558,431 workers.
To conduct its analysis, OSHA categorized workers by
application groups, defined by common tasks, rather than
industries defined by end products. OSHA affirmatively
concluded that a 1 µg/m 3 PEL was technologically infeasible in
welding and aerospace painting, accounting for 270,000 and
8,300 workers respectively. Furthermore, OSHA concluded that
it could not meet its burden to prove that the standard was
technologically feasible for the 469 workers in chromium
pigment, catalyst, and dye production. Finally, OSHA
determined that it would be economically infeasible for
electroplating job shops, employing 33,400 workers, to comply
with a 1 µg/m 3 PEL. HRG challenges OSHA’s determinations
29
for each of these workplace categories.3
1. Welding
With regard to welding, HRG argues that the finding of
infeasibility was flawed on two grounds. First, HRG challenges
OSHA’s use of application groups, instead of industries, to
delineate groups of workers. HRG argues that OSHA must
demonstrate that a typical firm will be able to comply with a
PEL in most of its operations most of the time, and, since
welding describes a single operation within a firm, rather than
a type of firm defined by an industry, OSHA did not conduct an
appropriate analysis.
We disagree. As an initial matter, nothing in 29 U.S.C.
§ 655(b)(5) requires OSHA to analyze employee groups by
industry, nor does the term “industry” even appear. In the face
of this statutory silence, HRG presents no argument as to why
the Agency’s choice of methodology to implement the statute
3
HRG also challenges OSHA’s conclusion that a 1 µg/m 3 PEL
was infeasible in hard chrome electroplating operations. In
order to avoid the potential double counting of workers in
electroplating job shops, OSHA did not count hard chrome
electroplating workers in its overall feasibility assessment.
71 Fed. Reg. 10,337. Thus, OSHA’s feasibility findings with
regard to these operations are immaterial to the overall
feasibility determination.
30
should not be afforded deference under Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44
(1984). We also note that OSHA has employed the application
group methodology in prior standards. See Occupational
Exposure to Methylene Chloride, 62 Fed. Reg. 1,494, 1,564
(Jan. 10, 1997). OSHA explained that the application group
“methodology is appropriate to exposure to Cr(VI) where a
widely used chemical like chromium may lead to exposures in
many kinds of firms in many industries but the processes used,
exposures generated, and controls needed to achieve compliance
may be the same.” 71 Fed. Reg. 10,226. The Agency
specifically stated that “a given type of welding produces Cr(VI)
exposures that are essentially the same . . . [and] it is appropriate
to analyze such processes as a group.” Id. In light of OSHA’s
stated reasons for utilizing the application group methodology,
we will not substitute another.
Also, we find that the application group methodology is
consistent with Lead. OSHA determined that technology did not
exist that would permit certain welding operations to achieve
exposure levels of 1 µg/m 3 without reliance on respirators. An
employer would thus be unable to achieve the PEL in those
operations, regardless of whether the operations constituted all
or a portion of the employer’s business. HRG would apparently
have us require OSHA to research all operations of all
employers with Cr(VI) exposure, including operations that do
not involve Cr(VI), to determine whether a typical firm could
meet the PEL in most of its operations. Such an interpretation
31
would severely hinder OSHA’s ability to regulate exposure to
common toxins, a result that would appear to run afoul of
HRG’s own interests. Furthermore, in a review of the lead
standard that followed its Lead decision, the D.C. Circuit upheld
a technological feasibility determination by OSHA that
considered only the specific operations in leaded steel
production that caused exposure to airborne lead. Am. Iron &
Steel Inst. v. OSHA, 939 F.2d 975, 983-86 (D.C. Cir. 1991). We
accordingly conclude that it was appropriate for OSHA to
consider only those operations involving Cr(VI) exposure in
assessing the technological feasibility of the proposed 1 µg/m 3
PEL.
HRG also argues that the technological infeasibility
determination with regard to welding was not supported by
substantial evidence because the record demonstrates that most
welding operations could comply with the 1 µg/m 3 most of the
time without respirators. OSHA’s feasibility concerns regarding
welding focused on the common practices of stainless steel
shielded metal arc welding (“SMAW”), and stainless steel
welding in confined spaces. HRG points to evidence in the
record that “only” 22.3% of all stainless steel welders, and 29%
of SMAW welders, would require respirators to meet a 1 µg/m 3
PEL. See FEA at ES-34; 71 Fed. Reg. 10,335. HRG contends
that the record therefore demonstrates that the 1 µg/m 3 PEL is
feasible for all welding operations.
HRG’s argument is flawed for at least two reasons. First,
32
HRG asserts a novel rule for technological feasibility that has
never been applied by OSHA, nor recognized in any court.
HRG twists the Lead methodology, and would have us require
OSHA to find a PEL to be technologically feasible so long as a
majority of a typical employer’s workers performing an
operation would not have to wear respirators. If this were the
rule, no employer would be required to further remove toxins
from the air, or further limit employee presence in contaminated
air, so long as exposure could be kept at or below a PEL with
49% of the employees wearing respirators.
Neither the Lead decision nor logic support HRG’s
position. In crafting its feasibility rule in Lead, the D.C. Circuit
accepted OSHA’s hierarchy of compliance controls and simply
incorporated them into a manageable standard of proof. This
hierarchy, the same one at issue here, strongly disfavors
respirators as “an ineffective, unreliable, and unsafe method of
reducing employee exposure,” and generally restricts their use
to supplementary, interim or short term purposes. 43 Fed.
Reg. 52,990; see Lead, 647 F.2d at 1205 n.12 (“This key
provision of the lead standard is based on OSHA’s view that
respirators are an inferior and inadequate means of protecting
workers.”). Nothing in Lead, nor in any case reviewing an
airborne toxin standard, can be read to support a technological
feasibility rule that would effectively encourage the routine and
33
widespread use of respirators to comply with a PEL.4 In fact,
HRG’s support for such a rule is surprising since the purpose of
OSHA’s hierarchy is to drive employers to use more effective
means than respirators to protect workers from toxins.
Second, OSHA amply explained why compliance
problems in stainless steel SMAW and enclosed space welding
operations rendered a 1 µg/m 3 PEL technologically infeasible
for welding generally. OSHA stated:
4
In reply, HRG points to Building and Construction Trades
Department v. Brock, 838 F.2d 1258 (D.C. Cir. 1988), and
ASARCO, Inc. v. OSHA, 746 F.2d 483 (9th Cir. 1984), to
support its assertion that OSHA is bound to conclude a PEL is
feasible as long as firms can meet the PEL without respirators
in most operations, most of the time. This reliance is misplaced.
In Building and Construction, the D.C. Circuit upheld an
asbestos PEL in which more than 90% of the affected workforce
would not be regularly required to wear respirators. 838 F.2d at
1268. In ASARCO, the Ninth Circuit upheld an arsenic standard
in which 11 of 16 smelters at issue could achieve the PEL with
“with engineering and work practices and only very limited use
of respirators,” and the remaining four could comply with
“limited to moderate” respirator use. 746 F.2d at 496-97
(internal quotation marks omitted). In neither case did OSHA
depart from its strong disfavor of respirators, nor did either court
constrain OSHA’s discretion with regard to technological
feasibility.
34
Welders are not generally assigned to a particular
welding process. Instead, welders frequently
perform different types of welding on different
types of metals in different environments —
sometimes even during the same shift. [citing
comments from industry] For example, a welder
may spend part of his shift performing a task for
which exposures cannot be reduced below the
PEL, e.g., SMAW on stainless steel in a confined
space, and other parts of his shift performing
welding tasks for which exposures may be below
1 µg/m 3 .
FEA at III-336. Furthermore, “workers performing different
welding tasks often work next to one another,” rendering it
“impractical to separate employees on an operation by operation
basis.” Id. Accordingly,
Although a PEL of 1 µg/m 3 may be
technologically feasible for some less common
welding processes, the fact that welding is not
easily separated into high and low exposure
operations renders OSHA unable to conclude that
the proposed PEL of 1 µg/m 3 is technologically
feasible for any welding operations.
Id.
35
Thus, OSHA’s conclusion that a PEL of 1 µg/m 3 was
technologically infeasible for welding operations is supported by
substantial evidence, was adequately explained, and also
comports with both past practice and prior decisions.
2. Aerospace Painting
HRG argues that OSHA’s conclusion that a 1 µg/m 3 PEL
would be infeasible for aerospace painting was flawed for two
reasons. First, HRG again challenges the use of application
groups, asserting that the technological feasibility analysis was
improper because aerospace painting is an operation rather than
an industry. This argument fails for the same reasons discussed
above.
HRG’s second argument is particularly confusing and
equally unavailing. OSHA found that the painting of whole
aircraft or large aerospace structures, activities comprising
approximately two thirds of aerospace painting, could not be
conducted in compliance with either a 1 µg/m 3 PEL or a 5 µg/m 3
PEL without reliance on respirators. FEA at III-337. OSHA
accordingly built an exception into the final rule, whereby
employers engaged in these activities need only achieve airborne
Cr(VI) concentrations of 25 µg/m 3 through engineering and
work practice controls, and could rely on respirators to further
reduce exposure to the 5 µg/m 3 PEL. 29 C.F.R.
§ 1910.1026(f)(1)(ii).
36
HRG does not dispute OSHA’s conclusion that a majority
of aerospace painting operations cannot achieve either a 1µg/m 3
PELor a 5µg/m 3 PEL through engineering and work practice
controls. Neither does HRG challenge OSHA’s explanation for
the aerospace painting exception. Instead, HRG argues that,
because OSHA found it acceptable for one third of the workers
in aerospace painting to wear respirators in order to comply with
a 5µg/m 3 PEL, the Agency was required to explain why more
widespread respirator use would not have been acceptable to
support a 1µg/m 3 PEL.
This argument is illogical. OSHA carved out an
aerospace painting exception from its general rule disfavoring
respirators, a rule adopted for the benefit of workers, in order to
institute a lower uniform PEL of 5µg/m 3 . In exercising its
discretion to make this exception, OSHA had no obligation to
explain why it did not accept a greater deviation from the rule.
Since HRG offers nothing to challenge the adequacy of OSHA’s
decision as explained in the record and written into the final
rule, HRG’s argument pertaining to aerospace painting must
fail.
3. Pigment, Catalyst, and Dye Production
HRG also challenges OSHA’s conclusion that the
Agency could not prove the technological feasibility of a
1 µg/m 3 PEL in the chromium pigment, catalyst, and dye
production industries, industries that together accounted for only
37
469 workers in the feasibility analysis. OSHA identified
enclosures which, when combined with ventilation systems,
could generally achieve Cr(VI) exposures of 1µg/m 3 or less.
71 Fed. Reg. 10,337. However, OSHA pointed to industry
evidence that the ventilation systems could cause “significant
and intolerable” product loss by extracting the fine powders that
contained Cr(VI). Id. OSHA also pointed to evidence that some
plants, especially older facilities, would not be able to physically
accommodate enclosures. Id. OSHA estimated that 44% or
more of the workers in these industries would require respirators
to achieve 1µg/m 3 concentrations, and accordingly concluded
that it could not meet its burden to prove the technological
feasibility of a PEL set at that level. Id.
HRG argues that OSHA’s analysis of these three
industries was flawed because, in considering whether existing
plants could physically accommodate available technology, the
Agency improperly incorporated an economic consideration into
the technological analysis. Even if we were to conclude that
technological feasibility requires OSHA to accept that
employers may be forced to alter or abandon their physical
plants, OSHA also found that ventilation systems could cause
intolerable product loss. This concern squarely involved the
suitability of available technology. Moreover, the 469
employees at issue were a minute portion of the 312,169
employees in operations where a 1µg/m 3 PEL was not deemed
feasible, and their exclusion from consideration would have
been immaterial. We therefore will not disturb OSHA’s
38
technological feasibility analysis as it pertains to the chromium
pigment, catalyst, and dye production industries.
4. Electroplating Job Shops
HRG argues that OSHA’s determination that a 1µg/m 3
PEL was economically infeasible for the electroplating job shop
industry was neither supported by substantial evidence nor
adequately explained. Electroplating job shops are facilities that
perform electroplating services for other persons or businesses.
As discussed above, OSHA reached its infeasibility
determination upon finding and explaining that costs of
compliance would amount to 2.7 percent of revenues and
65 percent of profits, and that costs of compliance would be
similar across various types of plating shops. On this analysis,
OSHA concluded that the proposed 1 µg/m 3 PEL would “alter
the competitive structure of the industry.” 71 Fed. Reg. 10,301.
HRG bases its argument on part of a single statement by
OSHA that the costs of compliance “might not be passed
forward, particularly by older and less profitable segments of the
industry.” Id. at 10,301-02. HRG asserts that this statement
derives from improper speculation that some marginal firms
might suffer, and economic feasibility allows that certain
marginal firms might fail.
HRG paints an incomplete picture of OSHA’s economic
analysis. OSHA determined that the estimated costs to job shop
39
electroplaters of 2.7% of revenues was more than the Agency
had deemed economically feasible under previous health
standards, and was well in excess of the sector’s average annual
nominal price increase of 1.6%. FEA at V-94. OSHA also
determined that it would be unable to mitigate costs through
longer phase-in times or a greater reliance on respirators,
techniques that had been used in the past to address economic
difficulties where costs might otherwise have been in excess of
2% of revenues. Id. OSHA further found that the costs for
compliance would be approximately equal across different types
of job shops. Factoring in these costs, OSHA stated that “a
price increase that would assure continued profitability for the
entire industry would require almost tripling the annual nominal
price increase.” Id. (emphasis added). It is clear from the
record that OSHA considered and explained how costs would
affect the job shop electroplating industry as a whole, and was
within its discretion to conclude that a 1 µg/m 3 PEL would alter
the competitive structure of the industry.
B. Uniform PEL
HRG argues that the uniform PEL of 5 µg/m 3 must be set
aside on two grounds. First, HRG claims that evidence in the
record demonstrates that the feasibility problems of a 1µg/m 3
PEL noted by OSHA, even if correct, only affect a minority of
all exposed workers, and the lower PEL should therefore have
been selected. According to HRG, at most only 107,380 of the
558,431 exposed employees worked in operations where the
40
lower PEL is infeasible, counting 67,000 workers performing
stainless steel SMAW welding, 3,921 in aerospace painting,
2,590 in hard chrome electroplating, 33,400 in electroplating job
shops, and 469 workers in pigment, catalyst, and dye production.
To the contrary, OSHA concluded that 312,169 employees
worked in operations where the lower PEL was not deemed
feasible: 270,000 in welding, 33,400 in electroplating job
shops, 8,300 in aerospace painting, and 469 in pigment, catalyst,
and dye production.
Welding accounts for a dispositive difference of 203,000
workers between the opposing figures. HRG contends that only
stainless steel SMAW welders should be included in the
number. As discussed above, OSHA explained and sufficiently
supported its conclusion that a 1µg/m 3 PEL is infeasible for all
welding operations because welding is not readily segregated
into high and low exposure operations. 71 Fed. Reg. 10,336;
FEA at III-337. HRG offers no explanation to justify its lower
figure for aerospace painters, and does not explain why it did
not include workers engaged in enclosed space welding.
Second, HRG contends that the selection of a uniform
PEL for all industries, where many industries can accommodate
a lower PEL, is contrary to law and past practice. HRG points
to OSHA’s final lead standard, which HRG claims implemented
different PELs to accommodate different technological
feasibility findings in certain industries. HRG claims that the
lead standard incorporates a 50 µg/m 3 PEL for large foundries,
41
and a 75 µg/m 3 PEL for smaller foundries and the brass and
bronze ingot industry. HRG argues that OSHA should have
accordingly adopted separate PELs to achieve the lowest
exposures feasible for each industry or operation.
HRG mischaracterizes the lead standard and OSHA’s
past practice. It is true that, based on feasibility concerns,
OSHA made special allowances in amendments to the lead
standard for small foundries and the brass and bronze ingot
industries. 55 Fed. Reg. 3,146 (Jan. 30, 1990); 60 Fed.
Reg. 52,856 (Oct. 11, 1995). However, these allowances only
pertain to the time for compliance, and to the exposure level the
industries were required to meet through engineering and work
process controls alone. 29 C.F.R. § 1910.1025(e). The standard
expressly provides that “[w]here engineering and work practice
controls do not reduce employee exposure at or below the
50 µg/m 3 [PEL], the employer shall supplement these controls
with respirators . . . .” Id. § 1910.1025(e)(2). Thus, all
employers are subject to a single, universal PEL of 50 µg/m 3 .
Id. § 1910.1025(c). We fail to see how the respirator exceptions
OSHA made in the lead standard are any different functionally
from the exceptions the Agency made for aerospace painting in
the instant Cr(VI) standard. See 29 C.F.R. § 1910.1026(f)(1)(ii).
In fact, uniform PELs for the control of occupational
exposure to airborne toxins have been the rule in OSHA
standards. E.g. 29 C.F.R. §§ 1910.1001(c) (asbestos);
1910.1017(c) (vinyl chloride); 1910.1018(c) (inorganic arsenic);
42
1910.1028 (benzene); 1910.1048(c) (formaldehyde);
1910.1051(c) (1,3-butadiene); 1910.1052(c) (methylene
chloride). As it had similarly done in other standards, the
Agency recently explained that it set the PEL for methylene
chloride at the “lowest level for which OSHA c[ould] currently
document feasibility across the affected application groups and
industries.” 62 Fed. Reg. 1,575 (Nov. 22, 2006). HRG provides
no argument explaining why the Agency’s longstanding
interpretation of its responsibilities under section 655(b)(5)
should not be afforded Chevron deference. Nor does HRG point
to a single case in which a court invalidated a uniform PEL on
grounds that certain industries could comply with a more
restrictive standard.5
5
HRG argues that two cases, Building and Construction
Trades Deptartment, AFL CIO v. Brock, 838 F.2d 1258 (D.C.
Cir. 1988), and Industrial Union Deptartment, AFL CIO v.
Hodgson, 499 F.2d 467 (D.C. Cir. 1974), impose a burden on
OSHA to explain why it is adopting a uniform PEL when
significant risk could be feasibly be eliminated in certain
industries. Hodgson merely states that OSHA is “authorized” to
structure standards according to “the compliance capabilities of
various industries.” 499 F.2d at 480 n.31. Brock stands only for
the proposition that an enforcement efficiency justification in
support of uniform regulatory treatment “seems to completely
disappear” when the subcategory at issue consisted of
“93 percent of affected workers.” 838 F.2d at 1273. Moreover,
even if OSHA had some special burden of explanation, HRG
fails to demonstrate why the Agency’s asserted reasons for
43
OSHA’s decision to select a uniform exposure limit is a
legislative policy decision that we will uphold as long as it was
reasonably drawn from the record. See AISI, 577 F.2d at 833.
OSHA acknowledges that a lower PEL was feasible for certain
industries representing a minority of exposed workers.
However, the Agency provided ample reasons for selecting a
uniform standard. OSHA explained that multiple PELs would
create an “enormous evidentiary burden,” and associated
implementation delays, in order for the Agency to define the
precise situations under which employers would be required to
meet a lower PEL.6 71 Fed. Reg. 10,338. OSHA further
explained that multiple PELs would create compliance and
enforcement problems because many workplaces, and even
individual workers, are subject to multiple categories of Cr(VI)
exposure. This would make it “virtually impossible to
distinguish exposures from one source versus the other.” Id.
adopting a uniform PEL were factually unsupported or legally
inadequate.
6
HRG argues that OSHA’s existing feasibility analysis
already contains the information necessary to identify which
activities should be subject to a lower PEL. However, OSHA
explained that the “definitional and line drawing problem is far
less significant when OSHA uses a unit of industries and
operations for analytical but not compliance purposes,” because
the “consequences of imprecise classifications” for compliance
purposes “would become much more significant.” 71 Fed.
Reg. 10,338.
44
OSHA concluded that “a uniform PEL will ultimately make the
standard more effective by” facilitating employer understanding
and compliance, and enhancing OSHA’s ability “to provide
clear guidance to the regulated community and identify
non-compliant conditions.” Id.
In light of OSHA’s stated reasons for adopting a uniform
PEL, and the Agency’s similar practice in prior standards, we
conclude that OSHA’s decision was reasonably drawn from the
record. While HRG may provide reasons to disagree with
OSHA, it provides no grounds upon which we could conclude
that the agency operated outside of its discretion in
implementing section 655(b)(5).
C. Action Level
HRG argues that OSHA did not adequately explain why
it set the “action level”, the level that triggers additional
monitoring and surveillance obligations, at one half of the PEL.
See 29 C.F.R. §§ 1910.1026(b), (d)(2)(iii), 1926.1126(b),
(d)(2)(iii). HRG argues that this action level was unjustified
given the significant risks to employee health that remain at both
the PEL and one half of the PEL. HRG points to no case in
which a court invalidated the action level of a previous standard.
OSHA explained that, given the variable nature of Cr(VI)
concentrations in workplaces, the action level is a tool that
“provides increased assurance that employees will not be
45
exposed to Cr(VI) at levels above the PEL on days when no
exposure measurements are made in the workplace.” 71 Fed.
Reg. 10,331. By setting the level at one half of the PEL, the
action level also “effectively encourages employers, where
feasible, to reduce exposures below the action level to avoid the
added costs of required compliance with provisions triggered by
the action level.” Id. at 10,332. Set as it is, OSHA explained
that the action level provides a “very real and necessary further
reduction in risk beyond that provided by the PEL alone.” Id.
OSHA adopted this practice in the Cr(VI) standard after
“successful experience with an action level of one-half the PEL
in other standards.” Id. at 10,331. See, e.g., 29 C.F.R.
§§ 1910.18 (inorganic arsenic); 1910.1047 (ethylene oxide);
1910.1028 (benzene); 1910.1052 (methylene chloride). OSHA
pointed to numerous comments on the proposed rule, from
industry and labor, submitted in support of its selected action
level. 71 Fed. Reg. 10,331.
Much like the selection of an exposure level, selection of
an action level is primarily a legislative policy decision that we
will uphold so long as it was reasonably drawn from the record.
See AISI, 577 F.2d at 833. To the extent the decision may have
relied on factual findings, we will not disturb those findings as
long as they are supported by substantial evidence. 29 U.S.C.
§ 655(f). OSHA has no statutory obligation to implement action
levels, but has developed the concept as a means to promulgate
more effective standards. As OSHA explained, one reason for
implementing the action level was to provide confidence that
46
day-to-day exposures do not exceed the PEL. The action level
is also intended to encourage employers to reduce employee
exposure below the PEL where possible. As for setting the level
at one-half of the PEL, OSHA explained that it followed a
practice it had found successful in prior standards, and identified
diverse comments in the record supporting its approach.
We conclude that it is eminently reasonable for OSHA to
base a tool for PEL compliance on the PEL, and that the past
experience and positive comments cited by OSHA provide
substantial evidence in support of the chosen action level. We
will accordingly not disturb the Agency’s decision.
D. Employee Notification Level
The Cr(VI) standard requires an employer to notify an
employee whenever monitoring results indicate that the
employee was exposed to Cr(VI) levels in excess of the 5 µg/m 3
PEL. 29 C.F.R. §§ 1910.1026(d)(4), 1926.1126(d)(4). The
proposed rule would have required an employer to notify an
employee of all monitoring results. 69 Fed. Reg. 59,450-51.
HRG argues that OSHA’s decision not to adopt the proposed
rule and, instead, to set the notification level at the PEL is
arbitrary and unexplained.
OSHA argues that the notification trigger complies
precisely with a statutory requirement for employers to notify
employees of exposure to toxins “at levels which exceed those
47
prescribed by an applicable [OSHA] standard.” 29 U.S.C.
§ 657(c)(3). OSHA also contends that its general record access
standard provides all employees the right to access their records,
thus permitting them to discover monitoring results on their
own. See 29 C.F.R. § 1910.1020(e)(1)(i) (“Whenever an
employee . . . requests access to a record, the employer shall
assure that access is provided in a reasonable time, place, and
manner.”). OSHA further argues that it opened the notification
issue up to comment, and that the final rule was more protective
than the proposed rule because the final rule expanded the
monitoring requirements to include shipyards and construction.
Finally, OSHA asserts that the Cr(VI) standard requires all
employers to educate affected employees about the risks of
Cr(VI) exposure. See 29 C.F.R. 1910.1020.
While all of these arguments may be true, they are beside
the point. OSHA does not deny that the final Cr(VI) standard
departed significantly from the notification requirement of the
proposed standard, or that every prior standard that required
monitoring also required the employers to notify their employees
of all monitoring results. E.g., 29 C.F.R. §§ 1910.1001(d)(7)(i)
(asbestos); 1910.1017(n) (vinyl chloride); 1910.1018(e)(5)(i)
(inorganic arsenic); 1910.1025(d)(8)(i) (lead). While we
recognize that OSHA operates with substantial discretion in
promulgating standards, rules, and decisions, the Agency must
always include a statement of its reasons for any such action in
the Federal Register. 29 U.S.C. § 655(e). We are particularly
curious as to OSHA’s reasons for setting the notification level
48
at the PEL, since the Agency does not deny that this decision
departs from both its proposed rule and its past practice.
In its brief and at oral argument, OSHA failed to point us
to a statement in the record justifying the altered notification
requirement, or attempt to explain the agency’s reasoning.
While we find extensive discussion in the Federal Register
regarding the methods employers may use to measure exposure,
and a discussion of the notification requirement in its final form,
we find no explanation for why OSHA replaced the proposed
notification requirement. See 71 Fed. Reg. 10,339-43. OSHA
accordingly failed to provide a statement of reasons for its
actions as required by section 655(e), and we will accordingly
grant HRG’s petition on this ground.7
V. EEI’s Arguments
EEI challenges the applicability of the Cr(VI) standard to
employees performing maintenance and repair work in coal and
nuclear electric utility power plants. These employees may be
7
OSHA cites National Grain and Feed Ass’n v. OSHA, 866
F.2d 717 (5th Cir. 1989), for the proposition that HRG bears the
burden to demonstrate that any rule alteration it proposes would
have “more than a de minimis benefit for . . . worker safety.” Id.
at 737. Since we do not here consider an alternative provision,
but rather conclude that OSHA failed to adequately explain its
actions, we find National Grain to be inapplicable.
49
exposed to Cr(VI) through contact with “fly ash” in coal plants,
or through welding in either coal or nuclear plants, during
occasional periods of maintenance and repair. EEI argues:
(1) OSHA impermissibly relied on medical data from other
industries to establish the toxicity of Cr(VI) compounds in
electric plants; (2) OSHA’s decision not to exempt electric
plants from the Cr(VI) standard is not supported by substantial
evidence; (3) OSHA’s conclusion that the Cr(VI) standard is
feasible for coal and nuclear electric plants is not supported by
substantial evidence; and (4) the standard is arbitrary and
capricious because OSHA failed to address conflicts with other
regulatory requirements. For the reasons stated below, we will
deny EEI’s petition on all grounds.
A. Toxicity of Cr(VI) Compounds in Electric Power
Plants
EEI challenges OSHA’s reliance on the Gibb and
Luippold cohorts, studies drawn from the chromate production
industry, to establish the toxicity of the Cr(VI) compounds
found in electric power plants. EEI points to portions of a
statement by Dr. Herman Gibb, of the Gibb study, suggesting
that the relative toxicity of different forms of Cr(VI) compounds
encountered in different industries may vary. (See Ex. 47-8,
Post-Hearing Comments From Herman Gibb on the Proposed
Hexavalent Chromium Rule, Mar. 21, 2005 (“Gibb
Comments”)). EEI also points to two cases, Texas Independent
Ginners Ass’n v. Marshall, 630 F.2d 398, 403 (5th Cir. 1980),
50
and Color Pigments Manufacturer’s Ass’n, Inc. v. OSHA, 16
F.3d 1157 (11th Cir. 1994), to support its assertion that evidence
of health risks in one industry may not be relied on to establish
health risks in a second industry. EEI identifies no evidence, in
the record or otherwise, suggesting that Cr(VI) compounds
encountered in electric power plants are any less carcinogenic
than Cr(VI) compounds encountered in chromate production.
In reaching a conclusion as to the existence of significant
risk, OSHA need not calculate risk with mathematical precision,
nor does the substantial evidence standard require the Agency to
support its risk determination “with anything approaching
scientific certainty.” Benzene, 448 U.S. at 655-56. Under the
“best available evidence” standard, “so long as they are
supported by a body of reputable scientific thought, the Agency
is free to use conservative assumptions in interpreting the data
with respect to carcinogens, risking error on the side of
overprotection rather than underprotection.” Id. at 656.
During rulemaking, OSHA considered arguments that
risk estimates derived from Cr(VI) compounds found in the
chromate production industry were not applicable to other
industries. 71 Fed. Reg. 10,334. However, OSHA ultimately
determined that “all Cr(VI) compounds” are carcinogenic, and
that the risk estimates derived from the Gibb and Luippold
cohorts were “reasonably representative of the risks expected
from equivalent exposures to different Cr(VI) compounds in
other industries.” Id. During rulemaking, the Agency
51
specifically asked for Dr. Gibb’s opinion on this precise matter
through a post-hearing question. Dr. Gibb’s response, taken in
its entirety, provides no support for EEI’s position:
Should the exposure response observed in the
chromium chemical production worker studies be
restricted to setting a PEL only for the chemical
production industry?
Answer: It is conceivable that differences in
exposure (e.g. practical size, nature of the aerosol,
etc) between some industries (e.g. steel,
aerospace, lead chromate pigment production) and
the chromium chemical production industry could
lead to differences in cancer risk, but the
available data are inadequate to evaluate whether
such differences exist . . . . It is unlikely that
adequate studies of all industries affected by this
proposed rule will ever be conducted. In the
absence of more definitive information regarding
specific industries, it is prudent to regard
exposure to any hexavalent chromium compound
as presenting an excess lung cancer risk and that
the exposure response observed in the chromium
chemicals production industry should apply to
other industries with occupational exposure to
hexavalent chromium.
52
(Gibb Comments at 5 (emphasis added).)
In explaining its final risk determinations regarding
Cr(VI), OSHA stated that “the Gibb cohort and the Luippold
cohort, were found to be the strongest data sets for quantitative
assessment” because, in part, the “two had the most extensive
and best documented Cr(VI) exposures spanning three or four
decades.” 71 Fed. Reg. 10,176. Dr. Gibb’s comments bolster
OSHA’s conclusion that the Agency based its health risk
determination on the “best quantitative estimates of excess
lifetime lung cancer risks” available. Id. at 10,220. To the
extent that OSHA’s reliance on these estimates might
conceivably have been conservative, Benzene permits the
Agency to risk error on the side of overprotection. Since
Dr. Gibb expressly recommended that OSHA rely on the
chromate production studies to establish the toxicity of Cr(VI)
compounds generally, his testimony is of no help to EEI.
EEI’s reliance on Color Pigments and Texas Independent
is also misplaced. EEI points to portions of both cases in which
the relevant issue was not the inherent toxicity of certain
compounds, but the amounts of known toxins encountered in
different industries. There is no dispute here that different
operations naturally generate different concentrations of Cr(VI).
The Cr(VI) standard accounts for these differences by requiring
all employers to comply with a uniform exposure limit.
53
In Texas Independent, the cotton dust standard at issue
did not establish an exposure limit or require employers to limit
cotton dust emissions. See Texas Independent, 630 F.2d at 403.
OSHA did not measure exposure levels in the cotton gin
industry, but sought to impose medical surveillance
requirements on that industry on the basis of negative health
effects observed in cotton textile manufacturing processes. Id.
at 409. The court determined that OSHA’s risk assessment
lacked substantial evidence because the concentration of cotton
dust in cotton gin operations was “substantially lower” than the
concentrations encountered in cotton manufacturing. Id. at 409.
Thus, the disputed issue was the amount of occupational
exposure to a particular substance in disparate industries, not the
toxicity of the substance itself.
Color Pigments is similarly inapplicable. OSHA’s
technological feasibility analysis for the cadmium standard at
issue was based upon the extent to which employers could
reduce toxin concentrations below an initial exposure level.
16 F.3d at 1162-63. Proper calculation of the initial exposure
level in a given industry was therefore “vital.” Id. at 1163.
OSHA established the initial exposure level in the chemical
mixer industry by using data captured from the dry color
formulator industry. Id. at 1162. The court ruled that this
methodology was inadequate because OSHA failed to account
for variables between the industries that would affect the
amount of cadmium to which employees were exposed. Id.
Thus, the disputed issue was again the level of exposure to a
54
toxic substance in disparate industries, not the toxicity of the
substance itself.
EEI identifies no case in which a court faulted OSHA for
using medical data derived from one industry to establish the
toxicity of a substance generally. In fact, in another portion of
the Color Pigments decision, the Eleventh Circuit rejected an
argument that mirrors the one made here by EEI. The cadmium
pigment industry argued that OSHA should have excluded it
from the cadmium standard because exposure to cadmium
pigment was allegedly “less toxic and carcinogenic[] than other
forms of cadmium.” Id. at 1161. The court disagreed:
Given the absence of definiteness on the issue, the
volume of evidence that points at least implicitly
to the dangers of cadmium pigments, and the
serious potential health risks present if cadmium
exposure is as great in pigment form as in other
compounds, we believe that OSHA was justified
in choosing to include cadmium pigments in the
PEL, despite the existence of an equally rational
alternative.
Id. EEI’s argument is no more availing.
OSHA’s conclusion that health risk data derived from the
chromate production industry was sufficient to establish the
toxicity of Cr(VI) compounds generally is supported by the best
55
available evidence and by substantial evidence. We will
therefore not disturb the Agency’s decision.
B. Exemption for Electric Power Plants
EEI also argues that, even assuming that Cr(VI)
compounds encountered in electric plants are carcinogenic, the
concentrations of such compounds in electric plants are so low
as to warrant a general exemption from the standard. OSHA
denied EEI’s request for such an exemption during rulemaking.
71 Fed. Reg. 10,330-31. EEI argues that the amount of Cr(VI)
contained in “fly ash,” a residue of coal combustion encountered
during the maintenance and repair of boilers in coal-fired
electric plants, results in exposure levels that are below the
Agency’s exemption level. See FEA at II-24. Because this
argument does not pertain to welding, the only identified source
of Cr(VI) exposure in nuclear plants, and an additional source
in coal-fired plants, we consider the exemption argument to be
limited in scope to fly ash encountered in coal-fired plants.
EEI points to a statement by OSHA indicating that the
Cr(VI) content found in samples of fly ash provided to the
Agency demonstrated that the worker exposure to Cr(VI) would
be “well below 0.5 µg/m 3 .” FEA at III-362. Under the final
Cr(VI) standard, any employer, including an employer operating
an electric power plant, may be granted an exemption by
demonstrating with “objective data” that “a specific process,
operation, or activity involving [Cr(VI)] cannot release dusts,
56
fumes, or mists of [Cr(VI)] in concentrations above 0.5 µg/m 3
. . . under any expected conditions of use.” 29 C.F.R.
§§ 1910.1026(a)(4), 1926.1126(a)(4). EEI argues that exposures
to fly ash should have been completely exempted from the
standard during rulemaking under this same standard, just as
exposures to portland cement were exempted in the final rule.
See id. § 1910.1026(a)(3).
OSHA asserts, and the record demonstrates, that the
Agency only received nine samples of fly ash from EEI during
rulemaking, despite there being more than 1,000 coal-fired
electric plants in operation. Furthermore, EEI did not fully
identify the types of coal involved, or where the samples
originated. While the samples provided did indicate that
exposures from fly ash would be low, OSHA explained that
there was insufficient evidence “to establish that all coal ash
from all sources will necessarily have comparable Cr(VI)
content [to the exempted portland cement].” 71 Fed.
8
Reg. 10,330-31 (emphasis added). This was in contrast to
comprehensive data pertaining to portland cement, which
demonstrated that employee exposures would be below
0.3 µg/m 3 . Id. at 10,328.
8
In fact, one of the nine samples provided by EEI had a
Cr(VI) content of 45 micrograms per gram of fly ash. FEA at
III-361. In its brief, OSHA states that this translates to an
inhalation exposure level of 0.675 µg/m 3 , above the exemption
level of 0.5 µg/m 3 .
57
In this argument, EEI does not deny that Cr(VI) is toxic,
and that Cr(VI) is present in fly ash. The sole issue is whether
the evidence of Cr(VI) concentration levels in the record
required the Agency to exempt all fly ash exposure in coal-fired
electric plants from the standard. OSHA is required to
promulgate protective standards on the basis of the best
available evidence. The Agency rejected EEI’s requested
exemption upon finding that the available evidence was
insufficient to demonstrate that employee exposure to Cr(VI)
from fly ash would be sufficiently and uniformly low. OSHA’s
determination that there was an insufficient basis for exemption
is supported by substantial evidence in the record indicating that
EEI only provided OSHA with nine samples of ash during
rulemaking that were incompletely labeled. To the extent this
decision involved legislative policy decisions on the part of the
Agency, we find it to be reasonably drawn from the record. We
will therefore not disturb the OSHA’s decision to deny a general
exemption for fly ash exposures in coal-fired electric power
plants.
C. Feasibility of the Standard for Electric Power Plants
EEI argues that OSHA failed to prove that the Cr(VI)
standard is economically and technologically feasible for coal
and nuclear electric utility power plants. First, EEI argues that
OSHA failed to prove economic feasibility because it did not
show that the costs of compliance would be reasonably related
to the benefits to be derived from employee protection. This
58
argument is predicated on a clear misstatement of law. EEI
relies on a concurring opinion by Justice Powell in Industrial
Union Department, AFL-CIO v. American Petroleum Institute,
448 U.S. 607 (1980), in which he argued for a proportionality
requirement. Id. at 663. The Court squarely rejected Justice
Powell’s position the next year in American Textile
Manufacturer’s Institute, Inc. v. Donovan, 452 U.S. 490 (1981),
after reasoning that a “cost-benefit analysis on the issuance of
§ 6(b)(5) standards would eviscerate the ‘to the extent feasible’
requirement.” Id. at 513. We therefore reject EEI’s argument
with regard to economic feasibility.9
Second, EEI devotes just over a page in its brief to argue
that OSHA made no findings regarding the technological
feasibility of the Cr(VI) standard in electric power generation
plants. However, the record demonstrates that, for the purposes
of assessing feasibility, OSHA included electric utilities within
9
In its reply brief, EEI adds an additional argument that
OSHA’s cost estimates for welding were not appropriately
tailored to the electric utility industry. During hearings, OSHA
specifically asked EEI to supply additional information to
support its asserted cost figures, but EEI does not deny that it
never complied. Furthermore, EEI offers no argument or
evidence that, under the correct standard for economic
feasibility, the costs of compliance would have threatened the
existence or altered the competitive structure of the electric
utility industry.
59
the welding applications group. FEA at II-24. EEI points to no
evidence indicating that welding in electric utilities differs
substantially from welding generally, but, in its reply brief, EEI
attacks the application group methodology generally. As we
discussed above in considering HRG’s similar argument, OSHA
acted within its discretion to assess feasibility through use of
application groups. We will therefore not disturb OSHA’s
findings with regard to the feasibility of the Cr(VI) standard in
the electric utility industry.
D. Relationship of the Cr(VI) Standard to Other
Regulations
EEI argues that OSHA failed to harmonize the Cr(VI)
standard with regulatory requirements of the Nuclear Regulatory
Commission (“NRC”), and OSHA’s own arsenic standard as it
applies to fly ash.
With regard to workers in nuclear plants, EEI points to
10 C.F.R. § 20.1101(b), which requires employers subject to
NRC licenses to “use, to the extent practical, procedures and
engineering controls based on sound radiation protection
principles to achieve operational doses . . . that are as low as is
reasonably achievable (ALARA).” Id. EEI contends that the
controls required to comply with the new Cr(VI) standard would
risk increasing the time workers spend in radioactive areas,
particularly through use of respirators, and the total number of
employees exposed to radiation. However, the record
60
demonstrates that OSHA entered into an agreement with the
NRC in 1988, which delineates jurisdiction regarding
occupational safety and health at nuclear power plants.
Memorandum of Understanding Between the U.S. NRC and
OSHA, Oct. 21, 1988 (“MOU”). By the terms of the MOU,
OSHA has jurisdiction to regulate “[p]lant conditions which
result in occupational risk, but do not affect the safety of
licensed radioactive materials,” conditions which might include
“exposure to toxic nonradioactive materials and other industrial
hazards in the workplace.” Id. Moreover, a regulatory guide
published by the NRC expressly provides that “if an NRC
licensee is using respiratory protection to protect workers
against nonradiological hazards, the OSHA requirements apply.”
NRC Regulatory Guide 8.15, Acceptable Programs for
Respiratory Protection, Rev. 1, Oct. 1999. Thus, we conclude
that the Cr(VI) standard is fully compatible with NRC’s
ALARA requirement.
With regard to coal-fired power plants, EEI argues that
OSHA failed to rectify the Cr(VI) standard with its existing
standard for inorganic arsenic, another toxin present in coal fly
ash. EEI points to language in the preamble of the arsenic
standard by which OSHA responded to EEI’s argument that coal
plants should be exempt because exposure from cleaning boilers
is “intermittent.” Occupational Exposure to Inorganic Arsenic,
48 Fed. Reg. 1,864, 1,895 (Jan. 14, 1983). OSHA found no
basis to exclude the plants from the standard, but stated “[i]f it
is a maintenance operation with intermittent exposures, the
61
arsenic standard indicates that a good respirator program with
sign posting, training, and hygiene facilities . . . may be an
appropriate control strategy. If exposures are continuous,
additional control strategies would be appropriate.” Id. at 1985.
EEI contends that, by this language, OSHA excluded coal
power plants from the arsenic standard’s requirement to
maintain regulated areas and to comply with certain
housekeeping standards. See 29 C.F.R. §§ 1910.1018(f), (g). In
view of OSHA’s alleged past practice regarding toxins in fly
ash, EEI contends that it was therefore inexplicable and arbitrary
for the Agency to include maintenance and repair activities in
electric plants in the general industry provisions of the Cr(VI)
standard. EEI contends that the construction provisions of the
Cr(VI) standard, which do not include regulated area and
housekeeping requirements, would have been more appropriate.
OSHA flatly denies that the arsenic regulations contain
any exemption for electric utilities with regard to maintenance
and repair work. We note that both the arsenic standard and the
general industry provisions of the Cr(VI) standard contain
virtually identical requirements for regulated areas and
housekeeping. Compare 29 C.F.R. §§ 1910.1018(f), (g) with
§§ 1910.1026(e), (j). Nothing in the text of the arsenic
regulations indicates that electric utilities are subject to an
exemption, and we find EEI’s reliance on the language in the
preamble to be unconvincing.
62
Moreover, even if electric plants were required to do
more to control fly ash under the Cr(VI) standard, EEI identifies
no legal basis for this Court to disturb a standard merely because
two disparately regulated toxins happen to exist in a single
substance found in a workplace. Each standard was written to
mitigate the risks of a different hazardous substance, and we fail
to see why it would be at all improper for OSHA to expect an
employer to comply with the more restrictive standard.
VI. Remedy
Because we conclude that OSHA failed to provide a
statement of its reasons for setting the employee exposure
notification level at the PEL, we must select an appropriate
remedy. Where, as here, the only identified defect in a standard
is the lack of an adequate statement of reasons, the appropriate
course of action is to remand the matter to OSHA for further
consideration and explanation, without disturbing the rule itself.
AFL-CIO v. Brennan, 530 F.2d 109, 124 (3d Cir. 1975); see also
Int’l Union, United Mine Workers of Am. v. Federal Mine Safety
and Health Admin. 920 F.2d 960, 966 (D.C. Cir. 1990) (“We
have commonly remanded without vacating an agency’s rule or
order where the failure lay in lack of reasoned
decisionmaking.”). We will accordingly remand the matter to
OSHA for further consideration and explanation, consistent with
this opinion. Given the length of time that has passed in
finalizing the rule before us, and the need for certainty, we
expect that OSHA will act expeditiously in either providing an
63
explanation for its chosen notification requirements, or taking
such further action as may be appropriate.
VII. Conclusion
For the reasons stated above, we will GRANT HRG’s
petition for review with regard to the employee notification
requirements of the Cr(VI) standard, and REMAND the matter
to OSHA for further consideration. We will DENY HRG’s
petition for review on all other grounds. We will DENY EEI’s
petition for review on all grounds.
___________
64