# Petition — MARSHALL v. AMERICAN PETROLEUM INSTITUTE (Nos. 78-1036, 78-911) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0048%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 ## Text €8-103¢ No. p eliep Iu the Siywenw Cnet uf the WUuited States OCTOBER TERM, 1978 RAY MARSHALL, SECRETARY OF LABOR Vv. AMERICAN PETROLEUM INSTITUTE, ET AL. » PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT WADE H. McCREE, JR. Solicitor General FRANK H. EASTERBROOK Deputy Solicitor General WILLIAM ALSUP Assistant to the Solicitor General Department of Justice Washington, D.C. 20530 CARIN ANN CLAUSS Solicitor of Labor BENJAMIN W. MINTZ Associate Solicitor ALLEN H. FELDMAN DENNIS K. KADE NANCY L. SOUTHARD DIANE E. BURKLEY Attorneys Department of Labor Washington, D.C. 20210 Page A LEILA 1 I dai daiciten-cnisshquainbencnbbhspodessusebadidaiejuise 2 EEE Le ee 2 EE a EE I a 2 ELSES ES ER ODS ae 3 Reasons for granting the petition .................... 11 GS I) OS ESE SO 21 CITATIONS Cases: American Iron and Steel Institute v. OSHA, 577 F.2d 825, petitions for cert. pending, Nos. 78-911 and 78-919 .......... 12,13 Atlas Roofing Co. v. OSHRC, 4380 U.S. NUNES SIS TO a 3 Industrial Union Department, AFL-CIO v. Hodgson, 499 F.2d 467 .....................- 12,13 Society of Plastics v. OSHA, 509 F.2d 1301, cert. denied, 421 U.S. 992 0.0000... 12 Union Electric Co. v. EPA, 427 US. ARUN DET EY ib Ac 18 Statutes: Consumer Product Safety Act, 15 U.S.C. 2058(c)(1)(C) and (D) ..................... 17 Occupational Safety and Health Act of 1970, 29 U.S.C. 651 e€ seg. .................. 3 RESET aa 3,17 a 3, 9, 16 Statutes—Continued: Page RE ICTY detaidntebechsscciienoempeshacicashanbioii 3 GP ES SENET | Snichserictncsconteienisnqansinls 4,19 TN EI cliscdcctaveocbentincpobecscnted 2,18 BP Seri SEEDED) cecccvccscccasccsasnenraed passim Br ieee PERO), ccccstonssccsvncntectonies 19 FP I PUD inpscevintnsntccsicenntinsamnpnsian 4 Miscellaneous: Comment, Implementing the Anticancer Clauses of the Food, Drug and Cos- metic Act, 44 U. Chi. L. Rev. 818 (oy PSRERT ERE SB Dirty SEALER Poa ia Es See 18 EPA, A Preliminary Report on Popula- tion Risk to Ambient Benzene Ex- NIUE RUD ecticnncdiceaccptabiceienienstesedeecias 15 Executive Order 12044, 438 Fed. Reg. PI MIND Nel ctelccict rics ile ac 18 Identification, Classification and Regula- tion of Toxic Substances Posing a Po- tential Occupational Carcinogenic Risk, 42 Fed. Reg. 54148 (1977) ...............00+ 12 Senate Committee on Labor and Public Welfare, Legislative History of the Oc- cupational Safety and Health Act of 197u, 92d Cong., lst Sess. (1971)....16, 19, 20 S. Rep. No. 92-749, 92d Cong., 2d Sess. COPE ilacnaduicdabslsigdnedaddeld eabbdinituc ib ucctt 17 Iu the Supreme Court of the United States OCTOBER TERM, 1978 No. RAY MARSHALL, SECRETARY OF LABOR v. AMERICAN PETROLEUM INSTITUTE, ET AL. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT The Solicitor General, on behalf of the Secretary of Labor,‘ petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Fifth Circuit in this case. OPINIONS BELOW The opinion of the court of appeals (App. la-33a)* is reported at 581 F.2d 493. The regulation in ques- 1 The petitions for review of the regulation in the court of appeals named the Occupational Safety and Health Adminis- tration as the federal party. Because the Secretary of Labor is ultimately responsible for the promulgation and enforce- ment of the regulation, we have named him as petitioner here. *“App.” refers to the separately bound appendix to the petition in No. 78-911, which seeks review of the same judg- ment. Because we believe that the Court should grant review in No. 78-911, which presents essentially the same questions as the present petition, we will not file a separate response in that case. (1) 2 tion and the administrative opinion (App. 34a-252a) appear at 43 Fed. Reg. 5918-5970. JURISDICTION The judgment of the court of appeals (App. 254a- 255a) was entered on October 5, 1978. The juris- diction of this Court is invoked under 28 U.S.C. 1254 ( 1 ) . QUESTIONS PRESENTED 1. Whether a health and safety standard for a toxie substance promulgated by the Secretary of Labor pursuant to 29 U.S.C. 655(b) must satisfy a cost- benefit test. 2. Whether a health and safety standard that is supported by substantial evidence based on the best available scientific knowledge may be set aside be- cause of the possibility that future scientific studies will provide better evidence concerning the need for the standard. STATUTE INVOLVED Section 6(b) (5) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 65546) (5), provides: The Secretary, in promulgating standards deal- ing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evi- dence, that no employee will suffer material im- pairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period 3 of his working life. Development of standards under this subsection shall be based upon re- search, demonstrations, experiments, and such other information as may be appropriate. In addition to the attainment of the highest degree of health and safety protection for the employee, other considerations shall be the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws. Section 3(8) of the Act, 29 U.S.C. 652(8), pro- vides: The term “occupational safety and health stan- dard” means a standard which requires condi- tions, or the adoption or use of one or more prac- tices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of em- ployment. STATEMENT 1. The Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. 651 et seg., was enacted “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.” 29 U.S.C. 651. See Atlas Roofing Co. v. OSHRC, 430 U.S. 442, 444-445 (1977). The Act directs the Sec- retary of Labor to set occupational safety and health standards to achieve this objective. 29 U.S.C. 655. The Secretary has determined that benzene poses a serious health hazard to employees who are exposed 4 to it, and he has issued three standards regulating the exposure of employees to benzene.° During the first two years of OSHA’s existence, the Secretary was required to adopt as his regulation any “national consensus standard” or “established Federal standard,” unless he determined that the promulgation of such a standard would not result in improved health or safety. 29 U.S.C. 655(a). In 1971 the Secretary adopted an existing “national consensus standard” establishing limits on occupational exposure to benzene. The 1971 standard provided that average exposure over an eight-hour period could not exceed 10 parts of benzene per million parts of air (ppm), and that short-term exposure could not exceed 50 ppm (App. 71a). The 1971 standard was designed to con- trol the long-recognized toxic non-malignant effects of benzene. The Secretary later received scientific evi- dence, including a report of the National Institute for Occupational Safety and Health, that benzene posed a risk of leukemia. On May 3, 1977, the Secretary issued an emergency temporary standard for benzene (see 29 U.S.C. 655(c)). Because of a temporary restraining order, the emergency standard never be- came effective (App. 73a-74a). This case involves the Secretary’s third benzene standard, which was promulgated after full rulemak- ing addressed to the leukemia hazard. The Secretary * Benzene, a highly volatile liquid, is a hydrocarbon with many industrial uses. Only 11 other chemicals are produced in greater tonnage in the United States. Production of ben- zene has been increasing rapidly (App. 69a). 5 published a proposed permanent benzene standard on May 27, 1977. Public hearings were held; 95 wit- nesses, representing employers and employees from the petroleum refining, petrochemical, oil and gas pro- duction, aviation fueling, coke oven and coke by- products industries, gave testimony (App. 74a). Com- ments were received from other industries, public in- terest groups and government agencies (ibid.). Briefs, arguments and additional evidence were submitted (id. at 75a). The final benzene standard reduces the permissible exposure level to an average of one ppm over an eight- hour day and reduces the limit for any 15-minute period to five ppm. It prohibits dermal and eye con- tact with certain liquids containing benzene, and it requires employers to monitor and enforce the ex- posure levels.‘ The Secretary published a lengthy statement of rea- sons for adopting the rule (App. 67a-251a). The Secretary described evidence showing that benzene 4 Although the standard initially prohibited dermal and eye contact with any liquid containing any benzene, the standard was amended on June 27, 1978, to exempt all liquids contain- ing 0.5% or less benzene by volume for an interim period of three years, after which the exemption covers all liquids con- taining 0.1% or less benzene by volume (App. 252a). The standard also requires employers to assure that caution labels are affixed to containers of products containing benzene and requires such labels to remain affixed when the products leave the workplace (App. 47a-48a). The standard requires respira- tory protection in limited situations (App. 40a), medical sur- veillance (App. 42a-46a), employee training programs (App. 46a-47a), and retention of records regarding medical surveil- lance and exposure monitoring (App. 48a-51a). 6 causes leukemia and non-malignant diseases as well. Blood disorders induced by benzene have caused deaths (App. 84a-89a) ; some studies reported blood abnor- malities at levels below 25 ppm, perhaps as low as 10 ppm (id. at 97a). Observing that “prudent public health policy, and established toxicological principles necessitates setting the permissible exposure limit sufficiently below the levels at which adverse effects have been observed to assure adequate protection,” and that “[i]t is customary to use a safety factor of 10-100 or greater depending on the seriousness of the toxic effects and the nature of the data being relied upon,” the Secretary stated that a permissible exposure limit “substantially less than 10 ppm with- out regard to the issue of leukemia” would be war- ranted (App. 97a-98a). Although the evidence that benzene causes leukemia was basically uncontroverted (App. 122a), industry representatives presented several “negative studies”— studies of purportedly exposed workers who did not contract leukemia—in an attempt to demonstrate that there was a threshold of exposure (higher than 10 ppm) below which there was no risk of leukemia. The Secretary concluded that these studies were unper- suasive, both because epidemiological studies are im- precise and because these studies, in particular, had serious deficiencies.’ The majority of the cancer spe- cialists appearing at the hearing testified that there 5’ Several of the studies, for example, did not separate work- ers who were not exposed to benzene from those who were exposed in computing risks from exposure (App. 124a-125a). 7 was no known safe level of exposure to benzene (App. 182a-187a; Tr. 351-363, 775-780, 1053). This testi- mony was consistent with the 1970 report of the National Cancer Institute’s Ad Hoc Committee on the Evaluation of Low Levels of Environmental Carcinogens. The Secretary thus concluded that the evidence established no known safe level for exposure to ben- zene (App. 124a-125a). He explained that “once the carcinogenicity of a substance has been established qualitatively, any exposure must be considered to be attended by risk” (App. 124a, 132a, 160a, 185-186a). The evidence, including a study of the technology re- quired to reduce the level and the expense to do so, demonstrated that the one ppm standard with a ceil- ing of five ppm was the lowest feasible level, and the Secretary therefore adopted it (App. 132a-135a, 185a- 187a).° The Secretary also concluded that a health risk was posed by dermal or eye contact with liquids con- taining more than 0.5% benzene by volume (see note 4, supra). The evidence revealed a scientific con- sensus—based on test data, benzene’s physical char- acteristics, and experience with similar chemicals— that absorption through skin is a potential source of exposure. In accordance with the agency’s policy ®* The Secretary estimated that the new standard would in- crease operating costs for all industries during the first year by between $187 million and $205 million; that the rule would require recurring annual expenditures of approximately $34 million; and that necessary investment in engineering con- trols would be approximately $266 million (App. 134a). 8 that, “in dealing with a carcinogen, all potential routes of exposure (i.e. inhalation, ingestion, and skin absorption) should be limited to the extent feasible” (App. 192a), the Secretary therefore required the use of inexpensive impermeable clothing to prevent skin and eye contact (App. 193a-194a). The Secretary rejected the argument that a rule about toxic substances must be justified by an attempt to assess the benefi:s of improved health and to weigh those benefits against the cost of the regulation and the costs of other “socially acceptable risks” (App. 158a-163a). The Secretary pointed out that the evi- dence did not permit the drawing of conclusions about the exact relationship between decreasing levels of exposure and disease; unless it could be learned ex- actly how much disease could be avoided by each one ppm decrease in exposure, it would be impossible to know the benefits of the particular proposed regula- tion. The most that could be said with confidence, the Secretary concluded, is that decreased exposure would lead to reduced risk, and thus save lives, The reduc- tion to one ppm exposure is likely, said the Secretary, to carry with it “appreciable” health benefits. The Secretary believed that the statute and the state of scientific knowledge together required adoption of the lowest feasible level for carcinogenic materials, at least so long as there is no known safe level. Only this position, the Secretary stated, could yield “the” standard that “most adequately assures, to the extent feasible” that “no” employee would suffer health im- pairment as a result of employment, as Section 655 (b) (5) requires (App. 159a-162a). 9 2. The court of appeals concluded that substantial evidence supports the Secretary’s findings that (1) benzene causes cancer (App. 18a) ; (2) benzene causes diseases (some of them fatal) other than cancer (App. 7a); (3) exposure at the 10 ppm level poses a leukemia risk, and exposure at the one ppm level poses less leukemia risk (App. 18a). The court acknowledged that it is not now possible to determine the ‘exact relationship between exposure and risk (App. 19a n.25); it did not dispute the Secretary’s finding that the one ppm standard is economically and technologically feasible. The court nevertheless set aside the standard. It concluded that the Secretary must demonstrate that the lower exposure level saves enough lives that the saving bears a “reasonable relationship” to the cost of implementing the standard (App. 19a-20a). This statutory requirement, the court held, had not been met, principally because the Secretary did not calculate the precise relationship between exposure and risk. The court fc ind the requirement that the Secretary establish a “reasonable” relationship between known costs and known benefits in the section of the Act that defines a health standard as a rule “reasonably nec- essary or appropriate” to protect health (29 U.S.C. §52(8)). A standard could not be “reasonably neces- sary,” the court concluded, unless it produced known benefits or savings commensurate with its known costs. Recognizing that OSHA calls for the “highest de- gree of health and safety protection” and establishes 10 that the Secretary must adopt for toxic materials the standard that “most adequately assures, to the extent feasible” health protection (29 U.S.C. 655(b) (5)), the court stated that the Secretary does not have “un- bridled discretion to adopt standards designed to create absolutely risk-free workplaces regardless of cost” (App. 15a). The court pointed out that Sec- tion 655(b)(5) also requires the standards to be “feasible” and instructs the Secretary to consider “the best available evidence * * * research, demon- strations, experiments.” These provisions suggested to the court that the statute contains “pragmatic limi- tations” (App. 16a), including a requirement to strike a balance between known costs and known benefits.” *The Secretary argued that the standard could satisfy a cost-benefit test, if one were required. The court rejected this argument because, although the cost was not in dispute, the benefits were not well known. Conceding that “some” health benefits would result from the lower standard, the court held that there is no substantial evidence to support the Secre- tary’s finding that the benefits may well be “appreciable” (App. 18a-19a). The court predicted that “valid extrapola- tions will be possible as more is known about the effects of past exposure at higher levels ‘App. 19a n.23). The court stated that when “studies of the effects of human exposure to benzene at higher concentration levels in the past are suffi- cient to enable a dose-response curve to be charted that can reasonably be projected to the lower exposure levels, or when studies of the effects of animal exposure to benzene are suffi- cient to make projections of the risks involved with exposure at low levels, then OSHA will be able to make rough but edu- cated estimates of the extent of benefits expected from reduc- ing the permissible exposure level from 10 ppm to 1 ppm. Until such estimates are possible, OSHA does not have suffi- 11 The court also invalidated the prohibition on dermal contact with liquids containing benzene. The Secre- tary had considered conflicting medical opinions on the question whether benzene could be absorbed through the skin and thereby pose a risk of disease. Although the court acknowledged that the Secretary’s finding that dermal contact with benzene poses a cancer risk is supported by substantial evidence (App. 25a), the court noted that one physician had testified that an experiment using radioactive benzene could be conducted to determine conclusively whether ben- zene is absorbed through the skin. No such experi- ment had been conducted, but the testimony led the court to hold that the Secretary may not proceed in the absence of such “readily” available evidence, be- cause the rules must be based on the “best available evidence.” 29 U.S.C. 655(b) (5). Because all of the standard’s other requirements are “tied to” the permissible exposure limit and the dermal contact prohibition, the court set aside the entire standard (App. 33a). REASONS FOR GRANTING THE PETITION 1. The Occupational Safety and Health Act re- quires the Secretary of Labor to establish, for toxic substances, standards of occupational exposure that “most adequately assure[], to the extent feasible, on cient information to determine that a standard such as the one under review which it can only say might protect some worker from a leukemia risk is reasonably necessary” (App. 20a- 21a; footnotes omitted). 12 the basis of the best available evidence, that no em- ployee 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) (emphasis added). Because of the great dif- ficulty that has been experienced in determining whether most substances that cause cancer are “safe” in any dose, however small, the Secretary has consist- ently established standards requiring the lowest level of exposure that can be achieved within bounds of economic and technological feasibility. The Secretary has not attempted to establish comparisons between the costs of the regulation and the measurgable bene- fits of reduced exposure to benzene and certain other toxic substances, and he believes that in this case he cannot establish such a comparison. Three courts of appeals have sustained the Secretary’s approach. In- dustrial Union Department, AFL-CIO v. Hodgson, 499 F.2d 467 (D.C. Cir. 1974) (asbestos dust) ; Society of Plastics v. OSHA, 509 F.2d 1801 (2d Cir.), cert. denied, 421 U.S. 992 (1975) (vinyl chloride) ; Ameri- can Iron and Steel Institute v. OSHA, 577 F.2d 825 (3d Cir. 1978), petitions for cert. pending, Nos. 78- 918 and 78-919 (“‘AISI’’) (coke oven emissions). The Secretary is continuing to apply this policy in ongo- ing administrative proceedings dealing with other car- cinogens. See Identification, Classification and Regu- lation of Toxic Substances Posing a Potential Occupa- tional Carcinogenic Risk, 42 Fed. Reg. 54148 (1977). The decision of the court of appeals in the present case holds that this policy is unlawful. According to the court, the Secretary must demonstrate measurable 13 benefits to be achieved by reductions in exposure to cancer-causing substances. If the relationship between exposure and disease is imperfectly known, so that the benefits cannot be measured, then the Secretary cannot order a reduction in exposure. In reaching this conclusion the court of appeals declined to address the decisions we have mentioned above, stating that they were insufficiently analytical (App. 21a). The decisions do not simply conflict in result. They employ completely different reasoning. The three earlier decisions recognize the authority of the Secre- tary, when the evidence establishes no known safe level of exposure to a carcinogen, to resolve doubts in favor of safety. They do not require the Secretary to establish the “savings” attributable to a reduction in exposure; the decision in the present case makes such a computation essential. AJSJ and Industrial Union, indeed, explicitly reject the proposition that the stat- ute requires (or even permits) the Secretary to act on the basis of a cost-benefit comparison.’ They make 8 The industrial parties in AJS] argued that the Secretary was required to consider all applicable OSHA standards for a given industry and the cost of each, and then to maximize the number of lives saved (by all standards) for a given cost. This test would have required a cost-benefit analysis of every possible regulation and a comparison of the costs and benefits of toxic substances regulation against the costs and benefits of other forms of safety regulation. The court of appeals responded that the role “economic considerations are to play in review of the Secretary’s standard” is limited to determin- ing whether the standard is economically feasible, and that means only that the standard will not cause “massive disloca- tion of industry” or “imperil the existence” of the industry. 577 F.2d at 835-836. See also Industrial Union, supra, 499 F.2d at 478-481. 14 it clear that financial considerations may be taken into account only to the extent necessary to demonstrate whether a standard is feasible. The present case thus creates a conflict on a question that potentially affects the conditions of thousands of workplaces and the lives of millions of workers. The decision may well preclude the Secretary from regulating many of the other carcinogens present in the workplace. The ques- tion deserves review by this Court.’ ® The case would deserve review even if it involved only the benzene standard. The regulation governs the occupational exposure of some 629,000 workers to a known cause of cancer (App. 137a). Benzene is a widely-used hydrocarbon, and it can be expected that occupational exposure to it will continue to raise health questions. Although the court of appeals specu- lated (App. 19a n.23) that scientific evidence soon would per- mit the Secretary to establish the relationship between ex- posure to benzene and the incidence of disease, and thus establish the amount of benefits attributable to a reduction in exposure, it offered no sufficient basis for that speculation. The Secretary believes that the court of appeals overesti- mated the precision available in scientific studies of risk from exposure to carcinogens. There are a number of obstacles that make the measurement of benefits difficult. For example, it is difficult to study the development of cancer in groups of persons because it is not known how much of a given sub- stance they may have been exposed to in the past; moreover, persons may have been exposed to several different causes of cancer, and it is difficult to isolate the effects of each. There may be a substantial lag between initial exposure to a carcinogen and the development of disease; this makes it difficult to know when any sample of persons has developed all of the cases of cancer that may fairly be attributable to a particular substance. In light of these and other difficulties, the Secretary believes that the best studies available now or in the immediate future are not sufficiently precise to per- mit him to learn the effect of incremental reductions in ex- posure to benzene of the sort at issue. In other words, the 15 2. The court of appeals’ requirement that the Sec- retary establish a particular relationship between Secretary believes that it is not possible to conclude, with any precision, how many cases of cancer could be avoided by reducing exposure from 10 ppm to five or one ppm. In the absence of such information, it would not be possible to comply with the court of appeals’ requirement of detailed cost-benefit analysis. The court of »ppeals based its contrary view on three factors. First, the court observed that a physicist representing indus- try had testified that a “preliminary risk assessment”? showed that only two deaths every six years would be averted by the reduction in exposure to one ppm. But the Secretary asked the physicist to supply the basis for this conclusion; although he agreed to do so (Tr. 2752-2753), the Secretary has never received this substantiation. The Secretary discussed and re- jected the physicist’s unsupported conclusion (App. 16la). Second, the court observed that after the close of the record in this case the EPA released a preliminary report on the relationship between cancer and benzene. See A Preliminary Report on Population Risk to Ambient Benzene Exposures (1978). (This report estimates that exposure of the whole population to levels even as low as one part per billion for only 24 hours would cause between 30 and 80 cases of leu- kemia yearly.) In the Secretary’s view this report also does not establish that the relationship between exposure and incidence of leukemia can be constructed with sufficient relia- bility to be the basis for setting an exposure level under OSHA. The EPA stated (id. at 14) that its estimates were devised by “very crude methods” and could be in error by several orders of magnitude, so that it could confidently con- clude only that one sort of exposure would cause between 0.3 and 8000 deaths yearly. Such estimates are not suffi- ciently precise for use in setting occupational health stand- ards. The court’s third basis was that the Secretary’s consultant on the feasibility of implementing a one ppm standard stated that it could “perform a cost-effectiveness analysis for the benzene standard” (App. 19a n.23). Although one witness so testified, he did not offer to demonstrate how 16 known benefits and known costs of a toxic substances standard is incorrect. The statute provides that the Secretary must select “the” standard that “most ade- quately” assures, to the extent feasible, that “no em- ployee” will suffer harm even if he is regularly ex- posed to the substance “for the period of his working life.” 29 U.S.C. 655(b) (5). This provision neces- sarily precludes a decision to sacrifice health consid- erations to concerns about cost—at least so long as the cost is “feasible” within the meaning of the sec- tion. Nothing in the committee reports on the Act indicates that Congress desired the Secretary to look at the cost of regulation for any purpose other than determining the “feasibility” of a standard. See Sen- ate Committee on Labor and Public Welfare, Legisla- tive History of the Occupational Safety and Health Act of 1970, 92d Cong., 1st Sess. 141-203, 831-892, 1154-1198 (1971) (“Leg. Hist.’’). The court of appeals found its cost-benefit require- ment in 29 U.S.C. 652(8), which defines a “health such a study could be done, or how the data could be acquired. These three factors thus do not support the court of appeals’ confident assertion that it is possible soon to learn the rela- tionship between exposure and risk. (There is, of course, no need in this case to consider the utility of risk assessments for other purposes under other statutes. The general subject is under study by an interagency committee that is expected to issue a report in early 1979.) Moreover, the court also completely overlooked the Secre- tary’s conclusion that the benzene standard is justified by public health considerations without regard to cancer (App. 97a). This error might be sufficient, by itself, to call for reconsideration. We do not press the point further here, however, because the court, by deciding the case with the reasoning it employed, has crippled the Secretary’s ability to deal with substances that cause cancer. 17 standard” as a regulation establishing a practice or rule that is “reasonably necessary or appropriate” to protect health. But the court of appeals cited no leg- islative history suggesting that this general provision qualifies the Secretary’s duty to promulgate the stan- dard that “most adequately” assures that “no” person is harmed by a toxic substance. Section 652(8) re- quires a standard to be “reasonably necessary or ap- propriate,” but nothing in the statute indicates that a standard is not “reasonably necessary or appropri- ate” in the absence of a particular cost-benefit ratio. The court gave no reason for its apparent conclusion that resolving doubts about safety in favor of lower exposure to carcinogens is not a “reasonably * * * appropriate” means of health protection. The court of appeals’ approach also disregards the structure of the statute. It renders the statutory re- quirement of “feasibility” in 29 U.S.C. 655(b) (5) redundant. It also overlooks the fact that the Act as a whole indicates a preference for safety “so far as possible.” 29 U.S.C. 651. When Congress de- sired to qualify such a goal with a requirement that costs and benefits be considered, it has done so ex- plicitly.” The absence of such a qualification in OSHA 1% The Consumer Product Safety Act, for example, contains such a qualification. See 15 U.S.C. 2058(c) (1) (C) and (D). See also S. Rep. No. 92-749, 92d Cong., 2d Sess. 33 (1972). The court of appeals’ reliance on cases decided under the Con- sumer Product Safety Act (see App. 18a-21a) is therefore im- proper. Where Congress has not precluded an agency from using cost-benefit considerations to develop rules, the agency may properly employ such techniques. We stress that this case presents the issue whether Section 655(b) (5) prohibits the balancing of costs and benefits for 18 is thus telling. Cf. Union Electric Co. v. EPA, 427 U.S. 246 (1976) (structure of Clean Air Act indi- cates that it contains no requirement that air pollu- tion regulations be economically or technologically feasible); Comment, Jmplementing the Anticancer Clauses of the Food, Drug and Cosmetic Act, 44 U. Chi. L. Rev. 817 (1977) (discussing other statutes regulating carcinogens without respect to cost). The generally applicable provisions of OSHA all point toward regulation of toxic substances without respect to cost-benefit ratios. In selecting from among competing standards in the first two years of the Act’s implementation, the Secretary was required to “pro- toxic substances. We do not address balancing in government decisionmaking generally. The technique of balancing costs and benefits is an important decisionmaking tool in govern- ment. For example, the President has required that executive branch agencies, including OSHA, perform regulatory analyses for significant regulations, taking into account the full economic consequences of the proposed actions and al- ternatives. He has also established a regulatory analysis review group to examine the regulatory analysis of significant regulatory proposals of executive branch regulatory agencies, including OSHA. Executive Order 12044, 43 Fed. Reg. 12661 (1978). OSHA itself does not preclude all consideration of cost-benefit assessments in the process of setting health stand- ards for toxic substances. Section 655(b) permits but does not require the Secretary to modify previously-adopted na- tional consensus standards and to issue new standards where none previously existed, although once the Secretary choosesto do so, Section 655(b) (5) requires the Secretary to adopt the standard for toxic substances that is most protective of health, to the extent feasible. In making the determination whether to issue a new standard at all, the Secretary is free to weigh the costs and benefits of the new standards, if it is possible. 19 mulgate the standard which assures the greatest pro- tection” of the employees. 29 U.S.C. 655(a). And the provision for the regulation of toxic substances is all but inflexible in requiring the Secretary to select “the” standard that “most adequately” ensures that “no” employee is harmed. An employer may ob- tain variances from these rules, but the grounds for obtaining variances do not include financial considera- tions. 29 U.S.C. 655(b) (6). See also Leg. Hist. 1188, 1201. Moreover, the requirement of Section 655(b) (5) that the Secretary act on the basis of the “best avail- able evidence” may preclude cost-benefit considera- tions. Here, for example, the Secretary found that— as is the case for most carcinogens—the best available evidence does not permit the drawing of conclusions about the number of lives that can be saved by each ‘incremental reduction in exposure. Without such evidence it is impossible to determine the relationship between benefits and costs. But the statute requires the Secretary to act anyway, on what Congress surely knew to be imperfect data. Congress told the Secre- tary to do the best he could with the “best available” data precisely to prevent the possibility that “the Secretary be paralyzed by debate surrounding diverse medical opinions.” Leg. Hist. 848. Congress could not have meant to impose a cost-benefit requirement where, as here, the requirement would produce the very paralysis it sought to avoid. 8. The court of appeals also erred in invalidating the Secretary’s prohibition on dermal and eye contact 20 with liquids containing more than 0.5% benzene. As we have discussed above (see pages 7-8), the medical and scientific evidence was divided about the question whether benzene is absorbed through the skin. The Secretary found that absorption could take place, and the court of appeals acknowledged (App. 25a) that the decision to prohibit dermal contact on this basis is supported by substantial evidence. Under these cir- cumstances, the court’s conclusion that the Secretary could not act until another physician had completed another study using radioactive benzene flouts the requirement that the Secretary act on the basis of the best “available” evidence. No radioactive benzene study was “available” at the time of the hearing and, to this date, no one has supplied to the Secretary the results of such a test. No one has argued that the Secretary prevented the parties from performing and submitting such a test. We submit that the Secretary was entitled to act on the basis of the “available” evidence without waiting for the parties to create more.” If, as some of the industry parties contended and the court of appeals assumed, such a test is uncomplicated and reliable, it is surprising that the industry parties, with so much money at stake, have not engaged physicians to per- form the experiment and furnish the results to the Secretary. The Secretary cannot reasonably be blamed for the parties’ failure to supply him with relevant evidence. Moreover, if the Secretary were required to wait until the evidence had been supplied—however long that might take—the power to control the timing of new regulations would be effectively transferred from the Secretary to the affected parties, who would have every incentive to delay. 21 CONCLUSION The petition for a writ of certiorari should be granted.” Respectfully submitted. WADE H. McCREE, JR. Solicitor General FRANK H. EASTERBROOK Deputy Solicitor General WILLIAM ALSUP Assistant to the Solicitor General CARIN ANN CLAUSS Solicitor of Labor BENJAMIN W. MINTZ Associate Solicitor ALLEN H. FELDMAN DENNIS K. KADE NANCY L. SOUTHARD DIANE E. BURKLEY Attorneys Department of Labor DECEMBER 1978 2% The Secretary believes that the case should be decided this Term if that is possible. In order to facilitate prompt consideration of the case if the Court should grant review, we are prepared to file a brief on the merits within 21 days after the Court grants the petition for certiorari. We believe that it would be appropriate for the Court to establish a briefing schedule for the other parties that would make the case ayail- able for oral argument in April. bg U. S. GOVERNMENT PRINTING OFFICE; 1978 283747 246 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0048%3A1. Public record. Not legal advice.