Petitioners Brief — American Textile Mfrs. Institute, Inc. v. Donovan

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ene ROR EES:

No. 79-1429

(Consolidated with No. 79-1583) NOF 20 #0

IN THE MICHAEL RODAK, JR. CLERI

Supreme Court of the United States

OCTOBER TERM, 1980

AMERICAN TEXTILE MANUFACTURERS INSTITUTE, INC.,

MILLIKEN & COMPANY, ARKWRIGHT MILLS, SPARTAN

MILLS, BLAIR MILLS, INC., HERMITAGE, INC., DAN

RIVER, INC., CONE MILLS CORPORATION, MAYFAIR

MILLS, SPRINGS MILLS, INC., RIEGEL TEXTILE CorR-

PORATION, FIELDCREST MILLS, INC., AND WEST POINT-

PEPPERELL, INC.,

é Petitioners,

RAY MARSHALL, SECRETARY OF LABOR,

UNITED STATES DEPARTMENT OF LABOR, et al.,

Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR PETITIONERS

ROBERT H. BoRK NEIL J. KING

142 Huntington Street Counsel of Record

New Haven, Connecticut 06511 A. STEPHEN HUT, JR.

ANDREW N. VOLLMER

GREGORY B. TOBIN WILMER & PICKERING

~~ ' cgi Fs aa 1666 K Street, N.W.

EDWARDS Washington, D.C. 20006

First National Bank Tower (202) 872-6000

Two Peachtree Street, N.W.

Atlanta, Georgia 30383

Counsel for American Textile

Manufacturers Institute, Inc.

[Counsel for other Petitioners are listed on inside cover]

ROBERT T. THOMPSON

GARY S. KLEIN

THOMPSON, MANN & HUTSON

The Daniel Building

Suite 2222

Greenville, S.C. 29602

Counsel for Milliken and

Company

JOSEPH K. MADDOX, Jr.

P.O. Box 5784

Spartanburg, S.C. 29304

Counsel for Spartan Mills

ROBERT T. THOMPSON

GARY S. KLEIN

THOMPSON, MANN & HUTSON

The Daniel Building

Suite 2222

Greenville, S.C. 29602

Counsel for Hermitage, Inc.

SAMUEL K. ABRAMS

BRIAN E. MoRAN

BAKER & HOSTETLER

818 Connecticut Ave., N.W.

Washington, D.C. 20006

H. J. ELAM, III

NEIL W. KOONCE

Cone Mills Corporation

Greensboro, N.C. 27405

Counsel for Cone Mills

Corporation

DAN M. ByrbD, Jr.

J. SPRATT WHITE

P.O. Box 70

Fort Mill, S.C. 29715

Counsel for Springs Mills,

Ine.

ROBERT H. BoRK

142 Huntington Street

New Haven, Connecticut 06511

Counsel for Fieldcrest

Mills, Inc.

November 20, 1980

THOMAS A. EVINS

CLYDE H. HAMILTON

BUTLER, MEANS, EVINS &

BROWNE

P.O. Box 451

Spartanburg, S.C. 29304

Counsel for Arkwright Mills

ROBERT T. THOMPSON

GARY S. KLEIN

THOMPSON, MANN & HUTSON

The Daniel Building

Suite 2222

Greenville, S.C. 29602

Counsel for Blair Mills, Ine.

HARLAN H. HUNTLEY

ROGER L. TUTTLE

2291 Memorial Drive

Danville, Virginia 24541

Counsel for Dan River, Ine.

THOMAS A. EVINS

CLYDE H. HAMILTON

BUTLER, MEANS, EVINS &

BROWNE

P.O. Rox 451

Spartanburg, S.C. 29304

Counsel for Mayfair Mills

FRED M. RICHARDSON

Lovic A. BROOKS, JR.

CHARLES A. EDWARDS

CONSTANGY, BROOKS & SMITH

1900 Peachtree Center Building

230 Peachtree Street, N.W.

Atlanta, Georgia 30303

Counsel for Riegel Textile

Corporation

RICHARD H. MONK, JR.

C. POWERS DORSETT

West Point-Pepperell, Inc.

P.O. Box 71

West Point, Georgia 31833

Counsel for West Point-

Pepperell, Inc.

QUESTIONS PRESENTED FOR REVIEW

1. Whether Congress gave the Occupational Safety

and Health Administration (“OSHA”) the unprecedented

power to set enormously costly occupational health stand-

ards in disregard of their economic impact, the sole

limit being that the costs of a single standard must not

be so great as to threaten the destruction of an entire

industry.

2. Whether Congress intended to permit OSHA to

adopt standards that consume enormous amounts of soc-

iety’s limited industrial hygiene resources without regard

to whether such standards would produce any significant

or discernible reduction in a risk of material health

impairment. ;

3. Whether OSHA has the authority to require that

employers transfer and guarantee the wages and benefits

of workers who are not suffering from any occupationally-

related health impairment.*

*In addition to the parties listed in the caption of the case, the

following were parties to the proceeding in the court below: the

National Cotton Council; the Cotton Warehouse Association; the

American Cotton Shippers Association; the National Cottonseed

Products Association; the American Federation of Labor & Con-

gress of Industrial Organizations; the Industrial Union Depart-

ment, AFL-CIO; and the Amalgamated Clothing and Textile Work-

ers Union. The American Textile Manufacturers Institute, Inc. is

a trade associaiton consisting of approximately 175 companies.

(i)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ................ i

RRR OO UPTO anno nn c rsnecansecsnnsctccescescee v

Pe i 1

NTT id Soins vk cnedsich apie eleeaabebdeneiciohscaesiesotieahoeansces 2

CONSTITUTIONAL AND STATUTORY PROVI-

I 2

STATMMENS OF THE CARR annonce cccsccccccccscie 2

A. The Nature of Byssinosis .................................... 3

B. The Proceedings Before OSHA ....................... 7

1. Health Effects Evidence ........0.2.0000000.00000...... 8

2. The ATMI Alternative 0.000000... 11

’ 8. Evidence on the Economic Impact of the

RR ARAMA Rie rt et 12

C. OSHA’s Adoption of the Standard _................. 14

D. The Decision of the Court Below ...................... 17

SUMMARY OF ARGUMENT Www. 19

POSER RRR MPL SANS SCPE OREO oe TR CRE SOS ee 21

I. THE COTTON DUST STANDARD IS PREDI-

CATED UPON LEGALLY INSUFFICIENT

CRITERIA FOR ASSESSING THE ANTICI-

PATED ECONOMIC IMPACT AND REDUC-

TION IN RISK THAT THE STANDARD IS

EXPECTED TO PRODUCE ...W000 21

A. The Decision Below Mistakenly Permits

OSHA To Adopt Health Standards That Are

Subject to No Meaningful or Effective Cost-

Related Limitations .0.0000000000..0oooo cc cccccceecceee 22

| PREVIOUS PAGE WAS BLANK

TABLE OF CONTENTS—Continued

OSHA Failed To Make a Responsible and

Supportable Estimate of the Costs of

Its Standard or To Apply Any Meaning-

ful Criteria in Assessing the Standard’s

Economic Impact -S.,........\......ccccccccccccceeees

OSHA’s Construction of the Act—Under

Which the Costs of a Standard Are Irrele-

vant Short of the Point at Which They

Threaten To Ruin an Entire Industry—

Is Inconsistent with the Statutory Lan-

guage and Legislative History ..............

B. The Decision of the Court Below Should Be

Reversed Because OSHA Did Not Show

That the Standard Was Likely To Achieve

a Reduction in Risk That Is Significant

When Considered in Light of Its Costs _.....

OSHA Is Required To Show That a Rea-

sonable Relationship Exists Between the

Risk Reduction Benefits and the Costs of

Dee PD Sibincteecie i ae

SUNN." siblanhiglbdedidbctntshinbscbantsnipidubadhneiiitniesestneennnons

| RUMP NERO ER LE OTe Te ERS

The Judgment Below Must Be Reversed

Because OSHA Did Not Show That the

Standard Would Produce a Reduction in

Risk That Is Significant in Light of Its

0 ETE SEARS 2 Mis eR are ARAL Rae

Il. THE COURT BELOW ERRONEOUSLY CON-

CLUDED THAT OSHA HAS AUTHORITY

TO REQUIRE EMPLOYERS TO MAINTAIN

THE

WAGES AND BENEFITS OF EM-

PLOYEES WHO ARE TRANSFERRED FOR

REASONS UNRELATED TO HEALTH IM-

TIE iikak bos niliind in) Dectiadciainccsnca)imocdtdvenicrshcapnsn

GOIN | Ahi snssdcinucichca Rs lthicadat-cillith aden ssaeal Melisa

APPENDIX

Page

TABLE OF AUTHORITIES

Cases: Page

A.L.A. Schechter Poultry Corp. v. United States,

ee es Ie CD Glas ee 23

AFL-CIO v. Marshall, 617 F.2d 636 (D.C. Cir.

BE lesen cia aa a dr ia lea te passim

Amalgamated Meat Cutters & Butcher Workmen

v. Connally, 337 F. Supp. 787 (D.D.C. 1971) ...... 41

American Iron & Steel Institute v. OSHA, 577

F.2d 825 (3d Cir. 1978), cert. granted, 48

U.S.L.W. 3855 (U.S. July 2, 1980), cert. dis-

missed, 49 U.S.L.W. 3145 (U.S. Sept. 10, 1980).. 4, 43

American Petroleum Institute v. OSHA, 581 F.2d

493 (5th Cir. 1978), aff'd sub nom. Industrial

Union Department, AFL-CIO v. American

Petroleum Institute, 48 U.S.L.W. 5022 (U.S.

IE Ss, TD edict Ss Od eee 14, 27, 41

American Power & Light Co. v. SEC, 329 U.S. 90

| REN Per See A aA ae LER POR TR 22

Appalachian Power Co. v. Train, 545 F.2d 1351

S| ee ER. Cg A ee 44

Aqua Slide ‘N’ Dive Corp. v. CPSC, 569 F.2d 831

RN Ts II os scenchisiescnpamciniachiadsiescaice cane panei, 43

Associated Industries of New York State, Inc. v.

Department of Labor, 487 F.2d 342 (2d Cir.

RENTED colt sancaissebiskeieirsapihodtlecin Drciiltetluktia heats 34, 51

D.D. Bean & Sons v. CPSC, 574 F.2d 648 (1st Cir.

| ee ERIE AURIS AMT AY bie RD ne ee 43

Dry Color Manufacturers Association v. Depart-

ment of Labor, 486 F.2d 98 (3d Cir. 1978) ....... 4

Florida Peach Growers Association v. Department

of Labor, 489 F.2d 120 (5th Cir. 1974) 34

. Forester v. CPSC, 559 F.2d 774 (D.C. Cir. 1977).. 43

General Electric Co. v. Southern Construction Co.,

383 F.2d 135 (5th Cir. 1967), cert. denied, 390

os 6 OR ee eee 56

H & H Tire Co. v. Department of Transportation,

471 F.2d 860 (7th Cir. 1972) .........0.000000. oo... 44

TABLE OF AUTHORITIES—Continued

Page

Industrial Union Department, AFL-CIO v. Ameri-

can Petroleum Institute, 48 U.S.L.W. 5022 (U.S.

Se SRDS Coie SRE Fc i PR) Ab etre passim

Industrial Union Department, AFL-CIO v. Hodg-

son, 499 F.2d 467 (D.C. Cir. 1974) 2000000000... passim

Kent v. Dulles, 357 U.S. 116 (1958) .................... 24

Marshall v. West Point Pepperell, Inc., 588 F.2d

BU. PE PUD sa disdain sl ceseincceSieidllcchich'vadideecoe Laws 42

National Cable Television Association, Inc. v.

United States, 415 U.S. 886 (1974) .................... 24

National Congress of Hispanic American Citizens

v. Marshall, 626 F.2d 882 (D.C. Cir. 1979) ...... 46, 50

National Crushed Stone Association, Inc. v. EPA,

601 F.2d 111 (4th Cir. 1979), cert. granted, 48

U.S.L.W. 3535 (U.S. Feb. 19, 1980)... 44

National Wildlife Federation v. Andrus, 440 F.

es See Ce. SOFT) onic 27

Panama Refining Co. v. Ryan, 298 U.S. 388

(| SAAN aA, EN Po OE MOOT ON ae 22

RMI Co. v. Secretary of Labor, 594 F.2d 566 (6th

Ck, TSC A alte Ar Se OT Pa NSN IRE 42

Society of the Plastics Industry, Inc. v. OSHA,

509 F.2d 1801 (2d Cir.), cert. denied, 421 U.S.

SRNR RTE SRSA Ceti ENA: eed See 4

Synthetic Organic Chemical Manufacturers Associ-

ation v. Brennan, 506 F.2d 385 (3d Cir. 1974),

cert. denied, 428 U.S. 880 (1975) ........................ 4

Synthetic Organic Chemical Manufacturers Associ-

ation v. Brennan, 508 F.2d 1155 (3d Cir. 1974),

cert. denied, 420 U.S. 973 (1975) ....................... 51

Taylor Diving & Salvage Co. v. Department of

Labor, 599 F.2d 622 (5th Cir. 1979) ............... 55

Texas Independent Ginners Association v. Mar-

shall, Nos. 78-2668, et al. (5th Cir. Nov. 14,

og Ape SR FSIS RA ae ENE NT Re passim

Turner Co. v. Secretary of Labor, 561 F.2d 82 (7th

|. Ger SSR eta ane an Or Sa ee te 42

United Parcel Service of Ohio, Inc. v. OSHRC, 570

vase aoe fom Cie, 1978) .........:.......... 50

vii

TABLE OF AUTHORITIES—Continued

Page

United States v. Rock Royal Co-Op, Inc., 307 U.S.

RRR RIS Hee EE Rene Re ea cea 22

United Steelworkers of America, AFL-CIO-CLC v.

Marshall, [1980] OSH Dec. (CCH) 30829, 8

OSH Cas. (BNA) 1810 (D.C. Cir. Aug. 15,

ETRE Se NER de RY Teal SONU SUNT EPRI aOR passim

Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980)... 55

Yakus v. United States, 321 U.S. 414 (1944) ........ 41

Administrative Decisions and Reports:

Castle & Cooke Foods, [1977-1978] OSH Dec.

(CCH) 26225, 5 OSH Cas. (BNA) 14385 (1977),

appeal docketed, No. 77-2565 (9th Cir. July 14,

5 gO EEE RI Soe RC Rey SS RUN RE 45

Continental Can Co., [1976-1977] OSH Dec.

(CCH) 25250, 4 OSH Cas. (BNA) 1541

BEEING SMe ih TS EONS eh 8 Nea 44-45

Department of Labor Report to the Congress,

Cotton Dust: Review of Alternative Technical

Standards and Control Technologies (May 14,

) | ARRAS IANS 5 AER Ieee SSR IO PPE A PRS Ve a a eae 47, 49

Great Falls Tribune Co., [1977-1978] OSH Dec.

(CCH) 26308, 5 OSH Cas. (BNA) 14838 (1977),

appeal docketed, No. 77-2566 (9th Cir. July 14,

BONO, Secu teeieaaegicinase an widiahachinantdensbiscerumissonstae 45

KLI, Inc., [1977-1978] OSH Dec. (CCH) 26935,

6 OSH Cas. (BNA) 1097 (1977) 0000.0... 45

Making Prevention Pay, Final Report of the Inter-

agency Task Force on Workplace Safety and

BRUM CUP NR BIPIOED oeheiak ccc Sdinpicbacccestecceiebsouse 40

Samson Paper Bag Co., [1980] OSH Dec. (CCH)

I I iitah ith ia rbd le ee 45

West Point Pepperell, Inc., [1977-1978] OSH Dec.

(CCH) 26136, 5 OSH Cas. (BNA) 1257 (1977),

aff'd, Marshall v. West Point Pepperell, Inc.,

GOe Fame Oem COC CAR, ROTO) ..n.n<cccccsescciccccescctssc0 45

viii

TABLE OF AUTHORITIES—Continued

Constitutional and Statutory Provisions: Page

re. Coes i a a St 23

LO Wiens Been Ca) C2978) 44

15 U.S.C. § 2058(c) (2) (A) (1976) 0... 43

16 U.S.C. § 1536(a) (2) (Supp. III 1979) ............ 31

ee a eee ae 46

21 U.S.C. § 348(c) (83) (A) (1976) 000 31

= UGAn Gieeeths Cee). os. 2

29 U.S.C. §§ 651-78 (1976 & Supp. III 1979)...... 2

Sp See Ne COD oe 31, 32

me ea CUD es passim

oe tea BOeeues Cleve? ou 7

ae UBC, $6680) (6) C1076) ................... passim

a Use Gees. (ieee)... 27, 34, 40

BP Erie OUD CRINGE Sisocscsoccinesvoecenosee cen 2

Oy rs nn 44

oe USC. $5 008-000 (1978)... 56

80 U.S.C. §811(a) (7) (Supp. III 1979) _........ 56

i remit Oe UD il 56

30 U.S.C. § 843(b) (2), (8) (1976) 00. 56

83 U.S.C. §1311(b) (2) (A) (1976 & Supp. III

a en RUE PEASE OARS SADE Rae NAM eeetn, eee rT ae Re 44

41 U.S.C. § 35-45 (1976 & Supp. ITI 1979) _......... 7

42 U.S.C. § 7410(a) (6) (Supp. III 1979) ......... 56

42 U.S.C. § 7412 (Supp. III 1979) 0... 45, 46

Administrative Regulations:

29 C.F.R. § 1910.1025 (1979), as amended at 44

Fed. Reg. 50338 (1979), 44 Fed. Reg. 60981

(1979), 44 Fed. Reg. 68828 (1979)... 53

29 C.F.R. § 1910.1048 (1979), as amended at 45

Fed. Reg. 12416 (Feb. 26, 1980) 14, 24, 52, 54

ie, & F | Fc: _. | ieee ree 45

al wee. Gee. OGeee (ieee? a 4,5,7

43 Fed.

Reg. 5918 (1978), set aside, American

Petroleum Institute v. OSHA, 581 F.2d 498

(5th Cir. 1978), aff’d sub nom. Industrial Union

Department, AFL-CIO v. American Petroleum

Institute, 48 U.S.L.W. 5022 (U.S. July 2, 1980). 14, 15

TABLE OF AUTHORITIES—Continued

Page

=> Feu meee. SOOR C2978) ....................................... 46

48 Fed. Reg. 21888 (1978) ..................................... 46

43 Fed. Reg. 27350 (1978), amended, 48 Fed.

Reg. 28473 (1978), 43 Fed. Reg. 35032 (1978),

43 Fed. Reg. 56898 (1978) ............0.0000 eee passim

— 2 oe eee Chere) .................................... 28, 53

48 Fed. Reg. 54854 (1978) ..................................... 28

44 Fed. Reg. 58642 (1979)... 82, 45, 46

45 Fed. Reg. 53672 (Aug. 12, 1980) _............... 39

Legislative Materials:

115 Cong. Rec. 22517 (1969) 33

Senate Subcommittee on Labor of the Committee

on Labor and Public Welfare, 92d Cong., 1st

Sess., Legislative History of the Occupational

Safety and Health Act of 1970 (Comm. Print

pe ESE aR 6, 38, 34, 35

H.R. 16785, 91st Cong., 2d Sess. (1970), reprinted

in Senate Subcommittee on Labor of the Com-

mittee on Labor and Public Welfare, 92d Cong.,

Ist Sess., Legislative History of the Occupa-

tional Safety and Health Act of 1970 (Comm.

GARTER vc 55

S. Rep. No. 91-1282, 91st Cong., 2d Sess. (1970),

reprinted in Senate Suhcommittee on Labor of

the Committee on Labor and Public Welfare,

92d Cong., 1st Sess., Legislative History of the

Occupational Safety and Health Act of 1970

a 6

Miscellaneous:

Currie, OSHA, 1976 Am. B. Foundation Research

TERE IE ARS RGA eg 82

J. Freedman, Crisis and Legitimacy ( | 23

Kasper, Cost-Benefit Analysis in Environmental

Decisionmaking, 45 Geo. Wash. L. Rev. 1018

SSA 47

TABLE OF AUTHORITIES—Continued

Page

Monthly Labor Review (March 1975) _............. 25

Monthly Labor Review (Oct. 1978) 25

National Academy of Sciences, Decision Making

for Regulating Chemicals in the Environment

ae oT PTE a CLL A TT OF OR 47

Oi, On the Economics of Industrial Safety, 38 L.

& Contemp. Prob. 669 (1974) 47

Stewart, The Reformation of American Adminis-

trative Law, 88 Harv. L. Rev. 1667 (1975) ...... 24

The Supreme Court, 1979 Term, 94 Harv. L. Rev.

Pe IE ir a let Se passim

Tumorigenic Citations Subfile of the Registry of

Toxic Effects of Chemical Substances (Oct.

1979) (National Inst. for Occupational Safety

RO APE SARL WESTER TC NDS, UIP eh Sy, 89

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No. 79-1429

(Consolidated with No. 79-1583)

AMERICAN TEXTILE MANUFACTURERS INSTITUTE, INC.,

MILLIKEN & COMPANY, ARKWRIGHT MILLS, SPARTAN

MILLs, BLAIR MILLs, ING., HERMITAGE, INC., DAN

RIVER, INC., CONE MILLS CORPORATION, MAYFAIR

MILLS, SPRINGS MILLS, INC., RIEGEL TEXTILE Cor-

PORATION, FIELDCREST MILLS, INC., AND WEST POoINT-

PEPPERELL, INC.,

‘ Petitioners,

RAY MARSHALL, SECRETARY OF LABOR,

UNITED STATES DEPARTMENT OF LABOR, et al.,

Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR PETITIONERS

OPINION BELOW

The opinion of the United States Court of Appeals for

the District of Columbia Circuit is reported at 617 F.2d

636 and is reprinted in the Appendix to the Petition for

Certiorari (“Pet. App.”) at 19. The challenged regula-

tion and the statement of reasons accompanying it appear

at 43 Fed. Reg. 27350 (1978), as amended at 43 Fed.

Reg. 28473 (1978), 43 Fed. Reg. 35032 (1978), and 43

Fed. Reg. 56892 (1978).

JURISDICTION

The court of appeals entered judgment on October 24,

1979. Petitioners filed a timely petition for rehearing on

November 7, 1979, which the court below denied on Janu-

ary 11, 1980. Pet. App. at 103. Petitioners filed a timely

petition for a writ of certiorari on March 14, 1980, in-

voking jurisdiction under 28 U.S.C. § 1254(1) and 29

U.S.C. §660(a). This Court granted the petition by

order dated October 6, 1980.

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

Relevant sections of the United States Constitution and

the Occupational Safety and Health Act of 1970, 29

U.S.C. §§ 651-78 (1976 & Supp. III 1979) (the “OSH

Act” or “Act”) are set forth in the Appendix to this

Brief.

STATEMENT OF THE CASE

Petitioners, the American Textile Manufacturers Insti-

tute, Inc. (“ATMI”) and twelve individual textile manu-

facturing companies, brought this action for judicial

review of the Standard for Occ national Exposure to

Cotton Dust (the “Cotton Dust Jtandard” or “Stand-

ard”), promulgated by the Occupational Safety and Health

Administration (“OSHA”) on June 19, 1978. 438 Fed.

Reg. 27350 (1978), as amended at id. 28473, id. 350382,

id. 56893. The Standard was promulgated pursuant to

the OSH Act, Section 3(8) of which authorizes OSHA

to adopt standards requiring “conditions, . . . practices,

. operations or processes, reasonably necessary or ap-

propriate to provide safe or healthful employment and

places of employment.” 29 U.S.C. § 652(8). Section 6(b)

(5) of the Act provides that .

in promulgating standards dealing with toxic mate-

rials or harmful physical agents . . . , [OSHA]

shall set the standard which most adequately assures,

to the extent feasible, on the basis of the best avail-

able evidence, that no employee will suffer material

impairment of health or functional capacity ... .

Id. § 655 (b) (5).

OSHA adopted the Standard purportedly to protect

workers in the textile manufacturing and other cotton

handling industries from the risk of contracting byssino-

sis, a respiratory condition that has been associated with

exposure to cotton dust. Petitioners agree that, subject

to the requirements and limitations of the Act, textile

workers should be protected against serious and disabling

effects of byssinosis. The dispute in this case centers on

whether OSHA’s adoption of the Cotton Dust Standard

conformed with the applicable statutory requirements

and limitations—particularly as they relate to risk re-

duction and cost considerations. Petitioners believe that

the Standard must be set aside because OSHA misappre-

hended the nature of the economic impact inquiry that

the Act requires and imposed a wage guarantee obliga-

tion that has no statutory basis.

A. The Nature of Byssinosis

Cotton dust is not a carcinogen, and byssinosis, the

health impairment to which the Cotton Dust Standard

is addressed, is not a form of cancer. Unlike cancer, bys-

sinosis can be detected in its early stages when it is

reversible and nondisabling.' In these respects, the Cot-

ton Dust Standard differs from the Benzene Standard

reviewed by this Court and from all of the other toxic

substance standards that had been reviewed by the courts

of appeals prior to the decision of the court below.”

The respiratory effects that characterize byssinosis

have been categorized into four “grades” (14, 1, 2, and

3). 41 Fed. Reg. 56498, 56500-01 (1976). Grade %

byssinosis is generally characterized by occasional chest

tightness on Mondays; it is mild and reversible and dis-

appears entirely upon removal from exposure.* Indeed,

Grade % byssinosis cannot really be deemed a health

impairment of any sort, since it involves essentially

‘The fact that byssinosis is not a malignant disease is also

reflected by the fact that textile workers have not been found to

exhibit an excess incidence of mortality as a result of their ex-

posure to cotton dust. See Ex. 6, No. 76 at III-6. Citations to the

record compiled by OSHA include references to exhibits (“Ex.”)

and transcript testimony (“Tr.”).

2 See Industrial Union Dep’t, AFL-CIO v. American Petroleum

Inst., 48 U.S.L.W. 5022 (U.S. July 2, 1980) (Benzene Standard) ;

American Iron & Steel Inst. v. OSHA, 577 F.2d 825 (8d Cir.

1978), cert. granted, 48 U.S.L.W. 3855 (U.S. July 2, 1980), cert.

dismissed, 49 U.S.L.W. 3145 (U.S. Sept. 10, 1980) (Coke Oven

Emissions Standard) ; Society of the Plastics Indus., Inc. v. OSHA,

509 F.2d 1301 (2d Cir.), cert. denied, 421 U.S. 992 (1975) (Vinyl

Chloride Standard); Synthetic Organic Chem. Mfrs. Ass’n v.

Brennan, 506 F.2d 385 (3d Cir. 1974), cert. denied, 423 U.S. 830

(1975) (standard for 14 carcinogenic chemicals) ; Industrial Union

Dep't, AFL-CIO v. Hodgson, 499 F.2d 467 (D.C. Cir. 1974) (As-

bestos Dust Standard); Dry Color Mfrs. Ass’n v. Department of

Labor, 486 F.2d 98 (3d Cir. 1973) (standard for 14 carcinogenic

chemicals).

3 See 43 Fed. Reg. at 27354, col. 2; 41 Fed. Reg. at 56500, col. 3.

Recent studies indicate that from 50-75% of those individuals re-

porting any symptoms of byssinosis at all are classified in Grade

1/2. Pet. App. at 117, 125, 129.

“nebulous, transient feelings’;‘+ a person exhibiting

Grade 44 symptoms is not sick, impaired or disabled.®

Grade 1 byssinosis is characterized by chest tightness

and/or breathlessness occurring only on Mondays after

an absence from work of approximately two days. Grade

2 symptoms involve chest tightness and/or breathless-

ness on Mondays and other davs. Like Grade 1%, Grades

1 and 2 are generally considered to be reversible.*

Grade 3 byssinosis is characterized “by grade two

Symptoms accompanied by evidence of permanent in-

capacity from diminished effort tolerance and/or reduced

ventilatory capacity.” Id. Although respected medical

opinion suggests that even Grade 3 byssinosis may be

reversible,’ other studies conclude that, in most cases,

Grade 3 is not reversible. It is Grade 3 byssinosis—the

advanced, chronic variety—that OSHA has described as

being irreversible and disabling, constituting a form of

chronic obstructive pulmonary disease. 43 Fed. Reg.

at 27352.

In sum, the term “byssinosis” standing by itself is a

very imprecise description of health conditions that vary

from a mild, reversible, nondisabling symptom to what

in some instances may become a chronic, often irreversi-

ble, and disabling disease. Although it is not known what

component of cotton dust causes byssinosis, there is gen-

eral agreement that some workers exposed to high enough

concentrations of cotton dust will develop some symptoms

4Ex. 41 (Dr. Russell Harley); see also Tr. 1447 (Dr. W.K.C.

Morgan); Tr. 1515 (Dr. Russell Harley); Tr. 813-14 (Dr. El

Batawi).

5 Tr. 1779 (Dr. Charles F. Martin); Pet. App. at 157, 161 (Dr.

Jack W. Whitworth).

641 Fed. Reg. at 56500; Tezxas Independent Ginners Ass’n v.

Marshall, Nos. 78-2663, et al., slip op. at 1212 (5th Cir. Nov. 14,

1980) (copies of this recent opinion have been lodged with the

Court).

7 Ex. 41 at 8 (Dr. Russell Harley).

of Grade % byssinosis and that, if exposure continues

for long enough, the condition could progress, over time,

to the more severe chronic and disabling stage. However,

the overwhelming majority of persons.exposed to cotton

dust do not exhibit any symptoms of byssinosis at all

even after long exposure,® and a worker who has devel-

oped the early mild symptoms of byssinosis will revert

to a normal state if removed from exposure.”

At the time that Congress was considering the OSH

Act in 1970, concern was expressed about the occurrence

of the disabling form of byssinosis among workers in

certain operations within the textile industry."° However,

Congress did not indicate concern about the mild, reversi-

ble and nondisabling symptoms that characterize the

lower grades of byssinosis. Moreover, the data before

Congress in 1970 reflected experience with byssinosis

during the early and mid-1960s when there were vir-

tually no medical surveillance or other protective pro-

grams in effect. As discussed below, medical surveillance

(accompanied by respirator use and selective employee

transfer) is an effective means of reducing the incidence

of the chronic and disabling form of byssinosis. Since

no such programs were operative in the 1960s (when

cotton dust exposures were almost certainly higher than

at present) ,'' experience from that period has very little

8 See, e.g., Pet. App. at 128a, 125; see also Texas Independent

Ginners Ass’n v. Marshall, Nos. 78-2668, et al., slip op. at 1212.

® See, e.g., 48 Fed. Reg. at 27354, col. 3.

10S. Rep. No. 91-1282, 91st Cong., 2d Sess. 3 (1970), reprinted

in Senate Subcomm. on Labor of the Comm. on Labor and Pub.

Welfare, 92d Cong., 1st Sess., Legislative History of the Occupa-

tional Safety and Health Act of 1970, at 143 (Comm. Print 1971)

{hereinafter “Leg. Hist.’’].

11 Until the latter part of the 1960s, neither the government

nor any private standard-setting organization had placed a limit

upon exposure to cotton dust. 43 Fed. Reg. at 27351, col. 1. As

OSHA’s witness, Dr. Arend Bouhuys, observed, byssinosis has

relevance to whether OSHA’s Standard is necessary to

prevent or reduce a significant health risk today.

B. The Proceedings Before OSHA

Within the textile manufacturing industry, cotton is

handled in a series of successive operations, beginning

with “opening” through “roving,” ” continuing with

“spinning” through “warping,” and concluding in

“slashing” and “weaving.”

Before 1971, no mandatory exposure limit was gener-

ally applicable to these operations, although a permissible

exposure limit (“PEL”) of 1.0 milligram of total cotton

dust (raw) per cubic meter of air (1.0 mg/m*) was

established for federal contractors under the Walsh-

Healey Act. 41 U.S.C. §§ 35-45 (1976 & Supp. III 1979).

In 1971, OSHA adopted this limit as an established Fed-

eral standard under Section 6(a) of the Act, 29 U.S.C.

§ 655(a); consequently, the PEL of 1 mg/m* applied

to all operations in the textile manufacturing industry.

See 43 Fed. Reg. at 27351, col. 1. That standard, how-

ever, did not require medical surveillance.

In December 1976, OSHA published a proposal to re-

vise the standard by reducing the PEL, in all segments

of the cotton industry, to 0.2 mg/m® of cotton dust as

measured by a vertical elutriator. Testimony and

been perceived as an important health hazard for United States

cotton textile workers only since 1967. See Ex. 11 at 6.

12In the operations of “opening,” “picking,” “carding,” “draw-

ing,” and “roving,” raw cotton is cleaned and prepared for spinning

into yarn.

18 Tn the operations of “spinning,” “twisting,” “winding,” “spool-

ing,” and “warping,” the prepared cotton is transformed into yarn

and packaged for weaving or other processing.

In “slashing” and “weaving,” the yarn is manufactured into

a woven fabric.

1841 Fed. Reg. 56498 (1976). For the operations of “opening,”

“picking,” and “carding,” there is some evidence that a limit of

written comments in the proceeding focused on the health

need for the severe standard that OSHA had proposed,

as well as on the standard’s technological feasibility and

the economic impact that it would have on the affected

industries and the economy as a whole. What follows is

a brief description of the principal evidence on health

effects and economic impact."

1. Health Effects Evidence

For its health effects determination, OSHA placed

principal reliance upon the so-called “Merchant Study”

concluded in April 1971.17 Among textile workers not

subject to a medical surveillance or respiratory protec-

tion program, Merchant claimed to have found that the

predicted prevalence rate of byssinosis (for Grades 14, 1

and 2 on an undifferentiated basis) was approximately

7 percent at exposures of 0.1 mg/m’, 13 percent at ex-

posures of 0.2 mg/m* and 26 percent at exposures of 0.5

mg/m* in the operations of opening through warping."®

Although these findings were subject to serious ques-

0.2 mg/m of vertical elutriated cotton dust may be approximately

equivalent to a limit of 0.4 mg/m? of total cotton dust. Tr. 2396-97

(Hovan Hocutt). No such correlation between “vertical elutriated”

and “total” dust has been established for any other operations. /d.;

Tr. 2022-25 (Dr. John Neefus).

16 The question of the Standard’s technological feasibility per se

is not before the Court at this time, and need not be considered

except to the extent that it relates to the economic impact of the

Standard.

17 See 43 Fed. Reg. at 27355; Exs. 38d, 6, Nos. 44 & 51,

1843 Fed. Reg. at 27355; Ex. 6, No. 51, Table 4, Charts for

Groups. The “prevalence rate” is intended to relate the current

exposure levels to the percentage of employees with specified symp-

toms. It does not purport to show that the current exposures caused

those symptoms. See Ex. 38d at 108; Ex. 26 at 2

tion, the significance of the findings, even when ac-

cepted at face value, is easily overstated.

First, the Merchant Study does not establish a dose-

response relationship showing the percentage probability

that workers exposed to specified levels of cotton dust

will develop byssinosis.*° Rather, as Merchant admitted,

his study purported to show only the prevalence rate of

byssinosis (Grades %, 1 and 2) at a particular time

among workers who already had reacted to unknown

(and presumably higher) exposure levels in the past.??

Second, more than 50 percent of those who indicated

any symptoms of byssinosis at all in the Merchant Study

were recorded as Grade 14.” Finally, since none of the

workers in Merchant’s study had participated in a medi-

cal surveillance program, Merchant’s findings reveal

nothing about how the prevalence of byssinosis (par-

ticularly the higher grades) would vary from one ex-

posure level to another, if the various exposure limits

were combined with a program of medical surveillance,

respirator use, and employee transfer in appropriate

cases. Thus, even taken at face value, the Merchant Study

19The Merchant Study was shown to contain errors in data

selection, methodology, and analysis that led to the prediction of

“the highest possible value of predicted prevalence at any hypothe-

sized dust level.” E.g., Ex. 55 at 2-9 (Dr. Moon W. Suh). Dr.

Merchant himself testified:

Clearly no inference from our study can be drawn as to the

prevalence of byssinosis in the entire U.S. textile industry ....

Tr. 1032. Even OSHA admitted that there were “some weaknesses

in the Merchant data . . . and, consequently, .. . weakness of some

correlation coefficients.” 48 Fed. Reg. at 27357, col. 3.

20 See Ex. 38d at 103.

21 Ex. 26 at 2.

22 Ex. 6, No. 51, Table 4, Groups 3 & 6; Tr. 1162-63 (Dr.

Merchant).

must be interpreted very cautiously; it cannot blithely

be applied to circumstances that differ substantially

from those studied by Merchant.

The Merchant Study cannot be taken at face value,

however. Not only did it contain methodological flaws,”

but also it was inconsistent with a number of more

recent studies of larger worker populations, which indi-

cated that the actual prevalence of byssinosis in the textile

manufacturing industry was far below the levels sug-

gested by Merchant.

For example, a 1976 study conducted by Dr. Hans

Weill, an OSHA witness at the hearing, found that

among workers who had participated in a medical sur-

veillance program, the prevalence of byssinosis was

markedly low at exposure levels above 0.2 mg/m* and

that even at levels of 0.5 mg/m? and above, it was sub-

stantially lower than the rate reported by Merchant.”

Dr. Weill’s findings were consistent with those of Dr.

W.K.C. Morgan, who found that only 0.4% of the

workers whom he studied in 1976 (workers who also had

been subject to medical surveillance) reported any symp-

toms of byssinosis—despite the fact that they were ex-

posed to cotton dust levels ranging up to more than 1.0

mg/m*.** Studies reported by individual textile com-

panies were in accord with the Weill and Morgan find-

ings.”°

23 See note 19 supra.

*4 Ex. 183A at 14-15, 44-45; Tr. 294-95.

25 Exs. 39, 39a, 40, 43, 47b.

26 Thus, studies of more than 10,000 textile workers by Burling-

ton Industries revealed a prevalence rate (Grades 1/2, 1 and 2)

of 4.5% in 1971 and 1.0% in 1976. Pet. App. at 108, 172-75 (Drs.

Harold R. Imbus & Moon W. Suh). A 1973 study of more than

9,000 West Point-Pepperell textile workers exposed to dust levels

ranging from less than 0.2 mg/m? to more than 1.0 mg/m* showed

that only 1.34% of the workers reported byssinosis symptoms of

any grade, and that 70.7% of these were Grade 1/2, with only two

These studies are significant in several respects. For

one thing, taken as a group, they provide persuasive

evidence that the byssinosis prevalence findings reported

in the Merchant Study overstate the predicted level of

byssinosis among textile workers.** This point takes on

added significance in light of the fact that these other

studies are more recent, more extensive, and thus more

indicative of the current state of affairs in the industry.

More importantly, these studies demonstrated that a

medical surveillance program (combined with the se-

lective use of respirators and transfer of employees in

appropriate cases) is an effective means to achieve a

very significant reduction in the occurrence of byssinosis

(particularly the more serious grades) among textile

workers. Indeed, OSHA itself recognized this point. See

43 Fed. Reg. at 27359, col. 3.

2. The ATMI Alternative

Based upon this experience, ATMI and individual tex-

tile companies urged OSHA to consider and adopt an

alternative to the OSHA proposal. The alternative pro-

posed less stringent exposure limits than OSHA’s stand-

ard, combined with an active and effective medical sur-

veillance program that would identify employees having

the mild reversible symptoms of byssinosis.2® Such em-

ployees could then be protected against any risk of dis-

workers (in the entire study population of more than 9,000)

exhibiting Grade 2 symptoms. Pet. App. at 124-125, 157-161 (Dr.

Jack W. Whitworth). Similarly, a 1973 study of more than 6,600

Cone Mills textile workers found that approximately 3% of the

workers reported symptoms of Grades 1/2 and 1 (more than 70%

of these being Grade 1/2), with no workers reporting symptoms

of Grade 2 byssinosis. Pet. App. at 126-129 (Dr. Charles F.

Martin).

27 See Comments of the Council on Wage and Price Stability,

Ex. 111 at 16-18.

°8 See Ex. 160 at 86-89.

abling or irreversible lung damage by selective use of

respirators or transfer to low exposure areas, as med-

ically appropriate for the individual concerned. On the

basis of the experience that had accumulated since 1970,

ATMI argued that this alternative would provide effec-

tive and cost-efficient protection for textile workers

against any significant risk of material lung damage

from exposure to cotton dust.

3. Evidence on the Economic Impact of the Standard

Two principal analyses addressed the issue of eco

nomic impact. One, the Hocutt-Thomas study, was pre-

sented by the principal suppliers of dust control equip-

ment to the textile industry. It concluded that textile

manufacturers would incur capital costs of $550 million

to achieve much less stringent exposure limits than those

established in OSHA’s Standard. 43 Fed. Reg. at 27372,

27380.% The second economic analysis, prepared by

OSHA’s outside contractor, Research Triangle Institute

(“RTI”), estimated that the textile industry would incur

capital costs of $1.1 billion in 1974 dollars to achieve the

Standard’s exposure limit of 0.2 mg/m? in the operations

of opening through warping alone.”

RTI expressed considerable concern about the ability

of many textile firms to finance the capital expenditures

that it estimated would be required to reach the PEL

set by the standard. According to RTI,

2°The PELs for which the Hocutt-Thomas cost estimate was

developed were 0.2 mg/m* in opening through roving, 0.5 mg/m*

in spinning through warping, and 1.0 mg/m* in slashing and weav-

ing. Pet. App. at 152-56.

3° This consisted of $984.4 million in opening through spinning,

see Pet. App. at 189; 48 Fed. Reg. at 27371, and $127.7 million

in winding through warping, see Ex. 6, No. 76 at V-28. RTI esti-

mated the total capital cost of the proposed standard for all indus-

try segments to be $2.7 billion. Pet. App. at 139.

unless the compliance capital investments are spread

over a substantial number of years [RTI envisioned

an eight-year period] all the companies engaged

heavily in cotton yarn production will face severe

difficulty in financing compliance capital for the 0.2

mg/m* exposure limits and the difficulty will be

more intense for smaller companies."

In RTI’s view, implementation of the Standard would

be difficult for many firms and would result in adjust-

ments in the structure of the textile manufacturing

industry.” Although RTI did not believe that the se-

vere impact of the Standard would threaten the existence

of the cotton textile industry as a whole, it reached this

conclusion only by adopting (without any supporting

analysis) what it characterized as the “extreme assump-

tion” that the costs of the Standard could be passed on

fully in product prices. Pet. App. at 144; 48 Fed. Reg.

at 27370. RTI noted that if the opposite assumption of

no price increases were made, all industry sectors would

have “negative ‘profits after taxes’” under a 0.2 mg/m?

standard. Pet. App. at 148. Other witnesses echoed this

concern about the ability of the industry to finance the

required capital expenditures.”

31 Ex. 6, No. 76 at VI-48. These difficulties would be occasioned

because, as RTI noted, profits in the textile industry have been low

since the mid-1950s, averaging about one-half of the profit percent-

age for United States manufacturers as a whole. Jd. at C-27. This

poor profit performance, RTI observed, had led to a decline of nearly

37% in textile industry investment in plant and equipment between

1947 and 1974, a period in which plant and equipment expenditures

by U.S. manufacturers as a whole had steadily increased. Id. at

C-21, Table C-12.

82 Tr. 561-63 (Dr. LeSourd).

33 Thus, John P. Figh of the Chase Manhattan Bank testified

that the standard would threaten the viability of a number of firms

in the textile industry, particularly the enum firms. Pet. App.

at 191-95.

C. OSHA’s Adoption of the Standard

On June 19, 1978, OSHA adopted the final Standard.

The Standard establishes a PEL of 0.2 mg/m? of cotton

dust as measured by a vertical elutriator in the textile

manufacturing operations of opening through warping

(yarn manufacturing) and a PEL of 0.75 mg/m? in slash- |

ing and weaving.” In all cases, the applicable PEL is to

be achieved solely through the use of engineering and work

practice controls, and such controls are to be implemented

fully within four years.* The Standard also imposes a

host of ancillary requirements, including exposure monitor-

ing, medical surveillance, work practice restrictions and

provisions requiring employers to transfer and to guarantee

the earnings, rights and benefits of employees who are

unable to wear respirators in circumstances where the

Standard requires their use.*®

OSHA took the same approach to setting exposure

limits for cotton dust as it has in setting standards for

carcinogens, including benzene. Finding that for cotton

dust, as for carcinogens, there is no absolutely safe level

of exposure, OSHA concluded that the Act requires it

to set the exposure limit at a level that will “assure

maximum benefit . . . constrained only by the limits of

feasibility.” 43 Fed. Reg. at 27378, col. 3. As inter-

34 29 C.F.R. § 1910.1043(c) (1979), Pet. App. at 3. In other cov-

ered segments of the cotton handling and processing industry, the

PEL is 0.5 mg/m*. Id.

85 29 C.F.R. § 1910.1043(e), (g), (m) (1979), as amended at 45

Fed. Reg. 12416 (1980), Pet. App. at 5-6, 9-10, 17-18.

36 See, e.g., 29 C.F.R. § 1910.1043(d), (f), (g), (h) (1979), Pet.

App. at 3-13.

37 43 Fed, Reg. 5918 (1978), set aside, American Petroleum Inst.

v. OSHA, 581 F.2d 493 (5th Cir. 1978), aff’d sub nom. Industrial

Union Dep’t, AFL-CIO v. American Petroleum Inst., 48 U.S.L.W.

5022 (U.S. July 2, 1980).

preted by OSHA, this means that the exposure limit must

be set at the lowest level that is technologica!ly achievable,

as long as the costs of implementing such technology will

not threaten the existence of the affected industry as a

whole. 43 Fed. Reg. at 27378.

Moreover, as in the case of benzene, OSHA specifically

rejected the contention that it must assess the benefits

of the Cotton Dust Standard in light of its costs or con-

sider the relative health effectiveness and costs of al-

ternative approaches.** For cotton dust, as for benzene,

once OSHA had determined that the Standard was “with-

in the financial capability of the covered industries,” it

considered its economic analysis to be complete. Echoing

word for word the approach that it took in the Benzene

proceeding, the agency declared “that the benefits of

the proposed standard are likely to be appreciable,” and

asserted that, having made such a determination,

OSHA is not obligated to-carry out further exer-

cises toward more precise calculations of benefit

which would: not significantly clarify the ultimate

decision.”

OSHA acknowledged that the early, mild stages of

byssinosis are reversible, 43 Fed. Reg. at 27352, 27354,

that these early, nondisabling effects progress to the

chronic state only with further exposure, id. at 27354,

and that “a properly managed [medical surveillance]

program should identify affected workers well before

the onset of chronic obstructive pulmonary disease,” id.

at 27359, col. 3. Nonetheless, OSHA summarily rejected

8843 Fed. Reg. at 27379, col. 3 (Cotton Dust); 43 Fed. Reg. at

5941, col. 2 (Benzene).

3943 Fed. Reg. at 27379, col. 8 (Cotton Dust); 43 Fed. Reg. at

5941, col. 2 (Benzene).

40 43 Fed. Reg. at 27379, col. 3 (Cotton Dust); 43 Fed. Reg. at

5941, col. 2 (Benzene).

ATMI’s proposed alternative, apparently because of its

belief (1) that even the mild, nondisabling and reversible

symptoms of byssinosis constitute “material impairment

of health” within the meaning of the OSH Act, and (2)

that the most stringent approach (providing the maxi-

mum degree of protection possible against even mild,

reversible symptoms) must always be adopted in any

single health standard, so long as compliance with that

one standard will not threaten the financial viability of

the entire industry, 43 Fed. Reg. at 27378, col. 2.*

OSHA’s treatment of the Standard’s cost impact was

enigmatic. As noted above, the only estimate of the capi-

tal cost of a 0.2 mg/m® standard in yarn manufactur-

ing operations was the $1.1 billion figure presented by

OSHA’s contractor, RTI. However, OSHA rejected the

RTI cost estimate out of hand. Instead, OSHA decided

that an appropriate estimate of the capital cost of the

Standard for the textile industr; would be the $550

million estimate developed by Hocutt and Thomas for

a less stringent standard with higher exposure limits.

OSHA was unable to demonstrate (and, indeed, made no

real effort to demonstrate) how the Hocutt-Thomas fig-

ures could be transmuted into an accurate estimate of

the costs of an entirely different standard having much

more stringent exposure limits.

Relying on RTI’s “extreme assumption” that the com-

pliance costs of the Standard would be passed on in prod-

uct prices, OSHA then concluded that the Standard would

be economically feasible, since capital costs of $550 mil-

lion would not threaten the economic viability of the

*1 In light of the approach followed by OSHA, it is not surprising

that the preamble to the Cotton Dust Standard, like the preamble

to the Benzene Standard, makes no reference whatsoever to Section

3(8) of the OSH Act and no finding that the Standard is “reason-

ably necessary or appropriate to provide safe or healthful employ-

ment and places of employment.”

industry as a whole. 43 Fed. Reg. at 27377-78; Pet.

App. at 144. OSHA reached this conclusion despite its

recognition that some employers would be forced to shut

down and that the financial impact of the Standard

would be felt more acutely by smaller firms, thus enhanc-

ing a trend toward concentration within the industry.

43 Fed. Reg. at 27378, col. 2.

D. The Decision of the Court Below

In all significant respects, the court below upheld the

approach to setting occupational health standards that

OSHA had followed in the Cotton Dust proceeding. The

court agreed that, under the Act, OSHA must adopt the

standard that provides the maximum degree of protection

against any risk of health impairment, as long as that

standard is technologically feasible and not financially

ruinous to the industry as a whole. Pet. App. at 53-54,

617 F.2d at 655. According to the court, nothing in the

OSH Act requires any further assessment of the health

protection benefits of the Standard in light of its costs,

Pet. App. at 71, 617 F.2d at 663, or of the relative

risk. reduction that might be achieved by less costly

alternatives.

The court acknowledged that the early symptoms of

byssinosis are reversible, Pet. App. at 53, 617 F.2d at

655, and did not find that these symptoms constitute

“material impairment” of health within the meaning of

the Act. Pet. App. at 50-51 n.83, 617 F.2d at 654 n.83.

Nonetheless, believing that OSHA’s more stringent (and

far more costly) approach would provide some additional

protection beyond ATMI’s proposed alternative, the

court declined to require OSHA to attempt to assess the

extent of this additional protection or to consider the

benefit of such additional protection in light of the costs.

Id,

The only economic question that the court below deemed

relevant was whether the Standard would have such a

devastating cost impact as to make financial viability

impossible for the industry as a whole, effectively “put-

[ting] the industry out of business.” Pet. App. at 69,

617 F.2d at 662.° The fact that a number of plants and

small companies might be forced to close, thereby chang-

ing the market structure of the industry, did not “sig-

nify economic infeasibility’ in the court’s view, Pet.

App. 67-68 & n.148, 617 F.2d at 661-62 & n.148, par-

ticularly since OSHA had found an existing trend toward

increasing concentration in the industry.** Moreover,

in finding the Standard to be economically feasible, the

court, like OSHA, relied on RTI’s “extreme assumption”

that the costs of compliance would be passed on in prod-

uct prices and did not require OSHA to present any evi-

dence to support that assumption. Pet. App. at 67 n.145,

617 F.2d at 661 n.145.

Finally, the court did not require OSHA to base its

economic impact analysis upon any study that purported

to assess the costs of the Standard actually adopted.

Rather, the court sustained OSHA’s decision to use the

Hocutt-Thomas cost estimate, even though that estimate

addressed the costs of a much less stringent standard.

The court thus permitted the agency to choose between two

cost estimates, both of which it had found to be inac-

curate, and to adopt a Standard the costs of which were

not assessed in any study that OSHA believed to be

valid.

42 At the same time, the court conceded that “the actual test

for economic feasibility has yet to be fully developed by the courts.”

Pet. App. at 67, 617 F.2d at 661.

*8 Curiously, the court held that OSHA had not established the

economic feasibility of its Standard as applied to the cottonseed

oil industry, despite the fact that there too OSHA had pointed to

similar factors independent of the Standard that would contribute

to anticipated shutdowns in the industry. Pet. App. at 90-91, 617

F.2d at 671-72.

SUMMARY OF ARGUMENT

This case calls upon the Court to decide what deter-

minations OSHA must make regarding the economic

impact of its health standards. OSHA’s approach treats

the costs of its standards as being totally irrelevant until

they reach some undefined point at which the standard,

if implemented, would cause the destruction of an entire

industry. This interpretation of the Act leaves OSHA

with virtually unfettered authority to impose enormous

costs upon American employers. Only a few months ago,

this Court rejected OSHA’s claim to such extravagant

authority. Industrial Union Department, AFL-CIO v.

American Petroleum Institute, 48 U.S.L.W. 5022 (U.S.

July 2, 1980) [hereinafter “Benzene’’].

In that case, OSHA claimed that it need take no ac-

count of the magnitude of the health risks being ad-

dressed. In this case, OSHA asserts that it need take

no account of costs short of the point where they threaten

the ruination of an entire industry. If OSHA’s position

were accepted, the agency would enjoy precisely the “un-

precedented power over American industry,” 48 U.S.L.W.

at 5032, that this Court held to be contrary to Congress’

intent in Benzene.

The present case illustrates the inadequacy of OSHA’s

approach. OSHA concluded that the Cotton Dust Stand-

ard would be economically feasible without relying on any

study purporting to assess its costs. Instead, OSHA took

the estimated cost figure of a less severe standard and,

without warrant, treated it as the cost of ‘its own far

more stringent Standard. Relying on an unsupported

“extreme assumption” regarding price-demand elasticity,

it then concluded that a standard having such costs

would not threaten the financial viability of the industry

as a whole.

The economic limitation that OSHA purported to apply

here is, in reality, no limitation at all. The qualified

and pragmatic language of the OSH Act reflects a con-

gressional expectation that standard setting under the

Act would be a more balanced exercise, in which the

cost impact of regulatory action would play a more

prominent role. Because the position of OSHA and the

court below shows an utter disregard for the more prag-

matic and balanced approach that Congress intended,

and because it raises serious questions of an overbroad

delegation of legislative authority, it must be rejected.

The judgment below also must be reversed because

OSHA made no attempt to ascertain whether the bene-

fits of its Standard (in the form of a claimed reduction

in health risk) bear a reasonable relationship to the

attendant costs. Both in its overall objectives and its

more specific directives, the Act reflects a congressional

intent that OSHA spend society’s limited industrial hy-

giene resources wisely, so that employees can be pro-

tected, as far as possible, against the wide variety of

health and safety risks in the workplace. This goal

cannot be achieved if vast expenditures are mandated

to achieve negligible reductions in risk. Consequently,

OSHA must assess the significance of the reduction in

risk expected from its standards in light of the costs of

achieving that reduction.

The failure of OSHA to perform such an assessment

is particularly egregious in the present case, because the

petitioners had presented a far less costly alternative that

promised to provide workers with health protection com-

parable to that expected from OSHA’s far more burden-

some Standard. Cotton dust, unlike benzene, is not a

carcinogen, and byssinosis, the health impairment with

which it is associated, is detectable in its early stages,

when it is nondisabling and reversible. Consequently,

the only material health impairment involved in the pres-

ent case is much more easily averted than the malignant

condition that was involved in Benzene. In these circum-

stances, OSHA’s failure to perform a careful and re-

sponsible assessment of health protection benefits in light

of the respective costs of the two alternatives requires

reversal.

II.

The court below also erred in sustaining a provision of

the Standard that requires employers to transfer and

guarantee the wages of an employee who for any reason

is unable to wear a respirator in circumstances where the

Standard requires its use. This wage guarantee obliga-

tion—which is not tied to the existence of any health im-

pairment—exceeds the authority that Congress conferred

upon OSHA. The statute contains no express grant of

such authority, and the legislative history of the OSH

Act and provisions of related legislation demonstrate

that Congress did not intend to confer such authority

by implication.

ARGUMENT

I. THE COTTON DUST STANDARD IS PREDICATED

UPON LEGALLY INSUFFICIENT CRITERIA FOR

ASSESSING THE ANTICIPATED ECONOMIC IM-

PACT AND REDUCTION IN RISK THAT THE

STANDARD IS EXPECTED TO PRODUCE.

The decision below permits OSHA to regulate in a

manner that is essentially oblivious to considerations of

cost, except in the very most extreme circumstances. The

hallmark of OSHA’s approach is a financial impact limi-

tation that is wholly illusory and provides no constraint

whatever on agency discretion. In Part I.A below, we

show that this approach is both constitutionally question-

able and at odds with the intent of Congress. OSHA is

required to make a responsible prediction, supported by

substantial evidence, of the economic impact that its

standard will have and to explain why it believes that a

standard having such an impact is feasible.

Moreover, as we show in Part I.B below, OSHA must

responsibly assess the costs and risk reduction benefits

of its standards in order to determine that employers

are not being forced to incur enormous costs that bear

no reasonable relationship to the health benefits expected

to be achieved.

A. The Decision Below Mistakenly Permits OSHA To

Adopt Health Standards That Are Subject to No

Meaningful or Effective Cost-Related Limitations.

As its actions in the Benzene and Cotton Dust pro-

ceedings demonstrate, OSHA appears to believe that Con-

gress left it free to impose enormously costly require-

ments in the context of a single health standard, as long

as compliance with that one standard would not ruin an

entire industry.** This position reflects OSHA’s belief

that Section 3(8) of the Act, which provides that occupa-

tional health standards should be “reasonably necessary

or appropriate to provide safe or healthful employment,”

imposes no substantive restrictions on its standard-setting

activities, and that Section 6(b) (5) mandates the crea-

tion of absolutely risk-free workplaces, subject only to

technological limitations and the most attenuated eco-

nomic constraints.

So construed, the Act imposes no meaningful or effec-

tive cost-related limitations upon OSHA’s standard-

setting authority. In such circumstances, industry can-

not know what OSHA may do,* and effective judicial

review is impossible.** In part because such an uncon-

fined delegation of legislative power would raise constitu-

“4 See Benzene, 48 U.S.L.W. at 5030; Pet. App. at 67-69, 617

F.2d at 661-62.

45 See United States v. Rock Royal Co-Op., Inc., 307 U.S. 533,

574 (1939); Panama Refining Co. v. Ryan, 293 U.S. 888, 415

(1935). :

46 American Power & Light Co. v. SEC, 329 U.S. 90, 106 (1946).

tional problems,** this Court recently rejected OSHA’s

approach to standard setting in Benzene. As the plurality

stated :

{W]e think it is clear that the statute was not de-

signed to require employers to provide absolutely

risk-free workplaces wherever it is technologically

feasible to do so, so long as the cost is not great

enough to destroy an entire industry.

48 U.S.L.W. at 5031. The plurality continued: “[I]t is

unreasonable to assume that Congress intended to give

the Secretary the unprecedented power over American

industry that would result from the Government’s view

of §§ 3(8) and 6(b) (5).” Td. at 5032.

In Benzene, the plurality limited OSHA’s standard-

setting authority to situations in which a “significant

risk of material health impairment” would exist in the

absence of the standard. Jd. at 5030. But that threshold

requirement standing alone will do little, if anything,

to curb OSHA’s power over American employers if the

only cost-based restraint on OSHA’s authority is that

any single standard must not destroy an entire industry.

In effect, the “sweeping delegation of legislative power”

that the Benzene plurality avoided with respect to health

risks will be presented with respect to costs.** The Act

can and should be construed to avoid this result.*®

47 See U.S. Const. art. I, $1; A.L.A. Schechter Poultry Corp. v.

United States, 295 U.S. 495 (1935).

*8In such circumstances, OSHA would be making the “crucial

policy choices” that the Constitution reserves for Congress. The

Supreme Court, 1979 Term, 94 Harv. L. Rev. 75, 242, 249 (1980).

49 See Benzene, 48 U.S.L.W. at 5032. Where, as here, adminis-

trative regulation presents a “sharp break with our traditions,”

J. Freedman, Crisis and Legitimacy 84-85 (1978), this Court has

strictly scrutinized the statutory grant claimed to authorize the

action in question and has upheld the action only if authorized

Just as OSHA was required by the Benzene case to

show that its standards address a significant health risk,

the agency must also be required to identify and assess

the economic impact of its standards on the basis of

criteria that set some meaningful and effective limits

on its standard-setting authority. As we now show, the

economic feasibility test that OSHA and the court be-

low applied here imposes no such limits on the agency’s

authority and departs from what Congress intended. Ac-

cordingly, the judgment of the court below must be

reversed.

1. OSHA Failed To Make a Responsible and Sup-

portable Estimate of the Costs of Its Standard

or To Apply Any Meaningful Criteria in Assess-

ing the Standard’s Economic Impact.

A fundamental and dispositive consideration in this

case is that OSHA did not support the Cotton Dust

Standard with any study or analysis purporting to assess

its costs. One cost analysis, a $1.1 billion estimate pre-

pared by OSHA’s contractor, RTI, was in the record, but

OSHA rejected it out of hand.” Apparently OSHA be-

clearly and unmistakably. See, e.g., Kent v. Dulles, 357 U.S. 116,

128-30 (1958); National Cable Television Ass’n, Inc. v. United

States, 415 U.S. 386, 342 (1974); Stewart, The Reformation of

American Administrative Law, 88 Harv. L. Rev. 1667, 1697 (1975)

(advocating “a policy of narrow construction of statutory dele-

gations’’).

5° OSHA’s principal objection was its contention that approxi-

mately 30% of the capital costs estimated by RTI were for con-

trolling dust from equipment processing synthetic fibers in cotton

blend mills. 43 Fed. Reg. at 27370. In fact, the Standard requires

controls on such equipment, as long as that equipment is located in

a work area where cotton is handled or processed, even though on

other machines. See 29 C.F.R. § 1910.1043 (b) (1979), Pet. App. at 2

(definition of “cotton dust” and “lint-free respirable cotton dust’’).

OSHA also was disturbed by RTI’s assumption that all companies

were presently in compliance with the previous standard. 43 Fed.

Reg. at 27370. In fact, while some firms were already below the

limit set by the previous standard, many others had not yet achieved

that limit. Jd. The record indicated that the industry would have

lieved that its Standard would be prohibitively expen-

sive (and thus not economically feasible) if it cost as

much as RTI estimated.*' But the RTI estimate was the

only analysis directed to the exposure limits OSHA ac-

tually adopted. Even OSHA recognized that if the RTI

estimate were rejected, something else was needed. To

fill the gap, OSHA treated the Hocutt-Thomas estimate

of a far less stringent and less costly proposal as an

appropriate estimate of the capital cost of the Standard

it ultimately adopted. This treatment, accomplished in

two steps, is utterly without justification.

First, OSHA announced its belief that the Hocutt-

Thomas capital’ cost estimates of $550 million for ex-

posure limits substantially above those ultimately adopted

in the Standard were “overstatements.” But the agency

provided no rational explanation for this conclusion.

Thus, OSHA observed that compliance with the final

standard would be less costly than it would have been

for the proposed standard. 43 Fed. Reg. at 27372, col.

3. While accurate, this observation sheds no light at

all on why the Hocutt-Thomas capital cost estimate is

likely to have been overstated, since the Hocutt-Thomas

estimate did not relate to either the proposed or final

standard. The balance of OSHA’s rationale is equally

to incur more than $143 million in capital costs (above and beyond

what RTI had estimated) just to comply with the previous stand-

ard. Ex. 69 at 3-6 (L. K. Fitzgerald).

*1In fact, the RTI estimate of $1.1 billion was, if anything,

unduly low, since it was presented in 1974 dollars and should

have been increased by 40% (to $1.54 billion) to account for

inflation in machinery and equipment costs between 1974 and

June 1978 when the Standard was adopted. This increase is re-

flected in the Wholesale Price Index for Machinery and Equipment,

which rose from 139.4 to 195.1 between 1974 and June 1978.

Monthly Labor Review 114 (March 1975) ; id. at 94 (October 1978).

RTI considered this Index to be a reliable guide to price increases

for textile plants and equipment. See Ex. 6, No. 76 at C-20, Table

C-12.

unpersuasive. The fact is that OSHA was engaging in

the sheerest speculation when it characterized the Hocutt-

Thomas capital cost estimate as an “overstatement.”

But only at this point did the real speculation begin.

For OSHA then proceeded to announce that it would

treat the Hocutt-Thomas estimate of the capital costs of

a much less stringent standard as an appropriate esti-

mate of the capital costs required to achieve the much

more stringent limits required under its Standard. 43

Fed. Reg. at 27373. There is a certain elegance and sim-

plicity in this leap of logic; however, there is absolutely

no basis to support it.

52 Thus OSHA speculated that Hocutt and Thomas “may have

included some equipment which is used exclusively for syn-

thetics.” 43 Fed. Reg. at 27372, col. 3 (emphasis added). Apart

from the fact that this was merely a surmise on ©SHA’s part,

the fact is that the Standard as adopted requires controls on

most such equipment. See note 50 supra. OSHA also predicted

that new production equipment would reduce the number of ma-

chines on which the Hocutt-Thomas estimate was based. No

record support was cited for this prediction. And, even if it were

true, the cost of such equipment, much of which would not be pur-

chased in the absence of the Standard, would have to be added to the

cost of compliance. In addition, OSHA complained that Hocutt and

Thomas had not accounted for technological improvements in the

four-year compliance period. No citation to the record supported

this statement; nor was “technology” defined. Moreover, this vague

generalization was flatly refuted by Hocutt’s testimony that, for

the next seven years, he saw little new dust control technology

that would make compliance less expensive for the operations of

spinning through weaving. Tr. 2388-93. Finally, OSHA stated

that the Hocutt-Thomas estimate included some costs necessary

to come into compliance with the pre-existing exposure limits.

Such costs were properly included by Hocutt and Thomas, since

they are part of the total costs that would have to be incurred

to comply with a new standard. See United Steelworkers of Amer-

tea, AFL-CIO-CLC v. Marshall, [1980] OSH Dec. (CCH) 30329,

30418, 30429, 8 OSH Cas. (BNA) 1810, 1902, 1918-14 (D.C. Cir.

Aug. 15, 1980) (MacKinnon, J., dissenting); Comments of the

Council on Wage and Price Stability, Ex. 111 at 10.

°8 For example, Hocutt and Thomas estimated that the capital

costs to achieve a 0.5 mg/m? limit in spinning would be only $17.8

What really occurred is quite simple. Confronted with

one estimate (RTI) that demonstrated a lack of eco-

nomic feasibility by any test and another (Hocutt-

Thomas) that did not address the Standard actually

adopted, OSHA proceeded to select the Hocutt-Thomas

figure as being the less objectionable of the two, since

it was more compatible with the result OSHA wished

to achieve. 43 Fed. Reg. at 27373. But, even if Hocutt

and Thomas did overestimate the costs of the less string-

ent proposal that they had analyzed, only by the most

remarkable coincidence would the amount of that over-

estimate be equal to the additional costs required to at-

tain the far more stringent limits of the Standard OSHA

actually adopted. Such an approach to the determina-

tion of costs cannot be sustained, for it dispenses with

substantial evidence and amounts to regulation by spec-

ulation.** The OSH Act requires something better.®

million. See Pet. App. at 152-156 (Hovan Hocutt). By contrast, RTI

estimated that achieving a 0.2 mg/m’ limit in spinning would

cost $553.3 million. (This is derived by applying a process-by-

process ratio to RTI’s final total capital cost estimate for the

operations of opening through spinning. See Ex. 6, No. 76 at I-15,

V-17.) Thus, the only estimates in the record indicated that the

Hocutt-Thomas figures would have to be increased by at least $535

million if it were to be applied to achieving a 0.2 mg/m? limit in

spinning alone.

OSHA itself appeared to recognize that substantial costs beyond

those estimated by Hocutt and Thomas would be required to achieve

a 0.2 mg/m limit in spinning. Thus, OSHA stated that a “major

effort” would be necessary to attain this limit and observed that

its decision to set a higher exposure level in weaving would per-

mit the industry to “focus more resources on spinning operations”

in order to make this “major effort.” 43 Fed. Reg. at 27367, col. 2.

54 See Texas Independent Ginners Ass’n v. Marshall, Nos. 78-2663,

et al., slip op. at 1216 & n.27; cf. National Wildlife Fed’n v. Andrus,

440 F. Supp. 1245, 1253 (D.D.C. 1977) (weighing of benefits and

costs is impossible “where there is only speculation .. . concerning

the impact upon the environment’).

55 29 U.S.C. § 655(f). See Benzene, 48 U.S.L.W. at 5034 (plural-

ity opinion) ; American Petroleum Inst. v. OSHA, 581 F.2d at 497;

OSHA’s determination that the Standard would not

threaten the economic viability of the industry as a

whole was as flawed as its estimate of what the Standard

would cost. In critical respects, this determination rested

on what RTI characterized as the “extreme assumption”

that the compliance costs of the Standard would be

passed through in the price of cotton products.” RTI

made this assumption (and OSHA and the court below

accepted it)®’ without any support, analysis or explana-

tion—even though, as RTI recognized, the Standard

would reduce profits and return on investment in the

textile industry to very low or negative levels if the in-

creased costs could not be passed on in product prices.

Pet. App. at 143.

Industrial Union Dep’t, AFL-CIO v. Hodgson, 499 F.2d at

474.

The extreme to which OSHA will go if permitted to regulate as

it has in the present case is also well illustrated in the Lead

Standard proceeding. 43 Fed. Reg. 52952 (1978); 43 Fed. Reg.

54354 (1978). In that case, OSHA proposed a PEL of 100 ug/m*,

and the record contained several studies estimating the cost of

achieving such a standard. However, the final standard estab-

lished a PEL of only 50 ug/m?, and OSHA stated that compliance

with the final standard “would not result in undue economic hard- .

ship” to the affected industries. Jd. at 54496, col. 3. OSHA reached

this conclusion even though it “did not undertake a formal analysis

of cost of compliance with the 50 ug/m*? PEL,” and even though

it admittedly lacked sufficient information to make a “meaning-

ful quantification of cost” for any standard stricter than the one it

had proposed. Jd. Instead, it simply utilized the compliance cost esti-

mate prepared for the proposed 100 ug/m® standard as the basis

for determining the economic feasibility of the 50 ug/m® standard

that it actually adopted. On review, the D.C. Circuit held this to be

a sufficient basis for establishing economic feasibility. United

Steelworkers of America, AFL-CIO-CLC v. Marshall, [1980] OSH

Dec. (CCH) at 30394-95, 30398-401, 30402-03, 8 OSH Cas. (BNA)

at 1877-78, 1881-83, 1885-87.

56 See pages 13, 16-17 supra.

5743 Fed. Reg. at 27370; Pet. App. at 67 & n.145, 617 F.2d

at 661 & n.1465.

In fact, there was little basis for RTI’s “extreme

assumption.” To the contrary, the evidence of record

suggested that competitive constraints (including inroads

made by foreign competition) would preclude the passing

on of full compliance costs in product prices,5® and

neither RTI nor OSHA presented evidence or analysis

that would support a contrary conclusion. As the Fifth

Circuit recently observed in setting aside the application

of OSHA’s Cotton Dust Standard to the ginning industry,

the Act requires that OSHA’s findings be based on sub-

stantial evidence rather than “on assumptions without an

adequate evidentiary basis.” Texas Independent Ginners

Association v. Marshall, Nos. 78-2663, et al., slip op. at

1220.

Even accepting this extreme assumption, however,

RTI and others expressed great concern about the ability

of many textile firms to raise the capital needed to in-

stall controls sufficient to achieve a 0.2 mg/m? exposure

limit. If the controls were phased in over an eight-

year period (rather than the four years ultimately al-

lowed), RTI expected that the Standard would precipi-

tate some plant closures. OSHA joined in this con-

clusion, acknowledging that the Standard would result

in the shutdown of a number of employers and would

cause greater concentration in the industry.” Indeed,

OSHA observed that RTI had probably underestimated

58 The record showed that cotton’s share of total domestic fiber

sales dropped from over 70% in 1947 to only 30% in 1974, largely

as a result of foreign competition and the availability of synthetic

yarns. Pet. App. at 147-48. And this competition was shown to

be continuing, with imports growing at a rate of about 6-7%

a year for products covered by multilateral trade agreements. /d.

at 148, 150-51; see also Tr. 2565-71 (Mr. John P. Figh).

59 Ex. 6, No. 76 at VI-125-29; Tr. 561-63 (Dr. LeSourd).

6043 Fed. Reg. at 27378, col. 2. In fact, the impact necessarily

would be more severe than OSHA presumed, since RTI had

assumed that the capital costs would be incurred over an eight-

year period. The Standard shortened this to four years, but

OSHA took no account of the added economic impact that would

result.

the financial impact that the Standard would have on

smaller firms, since compliance with the Standard by

such firms would require an investment of more capital

per unit of production than in the case of larger firms.

43 Fed. Reg. at 27378, col. 2.

In sum, OSHA’s estimate of the costs of the Standard

reflects bald assertions and outright speculation; its as-

sessment of the economic impact of the Standard was

based on an extreme and unsupported assumption that the

agency applied to these speculative costs; and it acknowl-

edged that, even so, the Standard would result in plant

closures and further concentration in the industry. How

much of the industry would be forced to close and what

impact this would have on employment and competitive

conditions are matters that OSHA failed to address in

any concrete manner. Instead, on the basis of the fore-

going findings, OSHA declared the Standard to be “gen-

erally feasible.” Id. The court below upheld this de-

termination, stating that “changes in the market struc-

ture of the industry do not signify economic infeasibil-

ity,” so long as “the standard will not put the industry

out of business.” Pet. App. at 68-69 & n.148, 617 F.2d at

662 & n.148.

ATMI submits that this approach effectively imposes

no constraint whatsoever on OSHA’s standard-setting

authority. Rather, it allows OSHA to exercise enormous,

unstructured and “unprecedented power over American

industry.” Benzene, 48 U.S.L.W. at 5032 (plurality

opinion).*' As we show below, the language of the OSH

Act and its legislative history demonstrate that Congress

61 The lengths to which OSHA and some courts may go under

the approach followed in the recent case is illustrated by the

Lead Standard proceeding. In that case, the D.C. Circuit found

that OSHA’s Lead Standard would be economically feasible for

the battery manufacturing industry even if it forced 200 small

producers out of business, since OSHA could still find that com-

petition would survive, through the existence of 30 firms that

already controlled 90% of the market. United Steelworkers of

America, AFL-CIO-CLC v. Marshall, [1980] OSH Dec. (CCH) at

30403, 8 OSH Cas. (BNA) at 1886-87.

intended that OSHA standards would have to satisfy a

more exacting test of economic feasibility than was ap-

plied in this case.

2. OSHA’s Construction of the Act—Under Which

the Costs of a Standard Are Irrelevant Short

of the Point at Which They Threaten To Ruin

an Entire Industry—Is Inconsistent with the

Statutory Language and Legislative History.

As this Court recognized in Benzene, the language of

the OSH Act is not focused solely upon the promotion

of worker health and safety to the exclusion of other

concerns.” The mere fact that compliance costs are not

“great enough to destroy an entire industry” does not

mean that a standard comports with the requirements

of the Act. 48 U.S.L.W. at 5031 (plurality opinion).

To the contrary, “Congress did not intend OSHA to re

duce each significant hazard without regard to economic

consequences . . . short of serious dislocation.” Jd. at

5038 n.5 (Powell, J., concurring).

The overall objective of the Act, as set forth in Sec-

tion 2(b), is to assure safe and healthful working con-

ditions, “so far as possible.” 29 U.S.C. § 651(b). And,

pursuant to Section 3(8), an occupational health standard

may require only such conditions, practices, and opera-

tions as are “reasonably necessary or appropriate to pro-

62 The qualified and pragmatic language of the OSH Act stands

in sharp contrast to the unqualified language of such statutory

provisions as the Endangered Species Act of 1973, 16 U.S.C.

§ 1536(a) (2) (Supp. III 1979), and the Delaney Clause of the

Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 848(c) (3) (A)

(1976). In relevant part, the Endangered Species Act unquali-

fiedly prohibits the funding of projects that would “jeopardize the

continued existence of any endangered species . . . or result in

the destruction or adverse modification of habitat of such species

.-’ The Delaney Clause states unequivocally that “no additive

shall be deemed to be safe if it is found to induce cancer when

ingested by man or animal.”

vide safe or healthful employment and places of employ-

ment.” As noted by the plurality in Benzene, a work-

place can be “safe” within the meaning of Section 3(8),

even though it is not entirely risk-free. 48 U.S.L.W. at

5031.% Similarly, as Professor Currie points out:

What is “appropriate” [within the meaning of Sec-

tion 3(8)] may be what is desirable in light of

feasibility or cost; what is “reasonably necessary”

may be what is both necessary and reasonable.™

Like Sections 2(b) and 3(8), the standard-setting

provisions of Section 6 are qualified and relative in

nature. Thus, Section 6(b)(5) provides that occu-

pational health standards are to protect—not abso-

lutely—but only “most adequately” against the health

hazard to which the standard is directed. The require-

ments that protection be provided only “to the extent

feasible” and only against “material impairment” are

further pragmatic limitations. This language reflects the

inevitable fact that there are some risks that it will not

be “feasible” to eliminate or reduce and, as the Benzene

plurality recognized, 48 U.S.L.W. at 5033, others that

must be disregarded as not “material,” if employees are

to receive the most adequate overall protection against

all workplace hazards.

The legislative history of Section 6(b) (5) confirms

the qualified nature of the statutory language. Thus,

Senator Javits, the author of the original Administration

bill (S. 2788), took the position that OSHA standards

Should be “feasible” in the sense of being “reasonable”

and “practical” as well as technologically achievable. His

*3 Cf. Currie, OSHA, 1976 Am. B. Foundation Research J. 1107,

1134 (1976) (the terms “safe or healthful” allow “room for some

play”). EPA also has recognized that “use of the term ‘safety’

[does not] necessarily imply a zero-risk concept.” 44 Fed. Reg.

58642, 58660, col. 3 (1979).

64 Currie, supra note 63, at 1134.

original bill would have required the submission to an

independent board of what Senator Javits described as

“a report on the feasibility of the proposed standards.” ©

“Feasibility” for the purpose of such standard setting

was defined as including “the technical feasibility, rea-

sonableness and practicality of such standard.” ® This

“feasibility report” was to be considered by the inde-

pendent board, along with other record evidence, in

formulating its standards.”

The Senate Committee rejected the concept of an inde-

pendent board but agreed that “standards promulgated

under Section 6(b) shall represent feasible require-

ments.” Leg. Hist. at 147. Accordingly, the term “feas-

ibly” was added to Section 6(b) (5) by the Committee

and remained in the version passed by both Houses,

thereby satisfying the concern of Senator Javits and

others that standards be reasonable and practical.

The substitution of the phrase “material” for “any”

impairment of health responded to a similar concern

that OSHA might seek to establish a risk-free utopia

regardless of cost. Leg. Hist. at 480 (remarks of Sen-

65 115 Cong. Rec. 22517, col. 3 (1969).

66S. 2788, 91st Cong., Ist Sess. § 4(c) (1969), reprinted in Leg.

Hist. at 38-39.

87 Id, § 4(c) (2), (3), reprinted in Leg. Hist. at 39-40.

68 Senator Dominick supported Senator Javits’ attempt to include

a feasibility limitation. However, he was concerned that the place-

ment of the term “feasibly” in the Committee bill might still be

read to require that an occupation be banned if there remained

“some risk of injury, impaired health, or life expectancy.” Leg.

Hist. at 367. He attempted to cure this problem by relocating

the feasibility requirement to the position that it occupies in Sec-

tion 6(b) (5) as enacted. See Benzene, 48 U.S.L.W. at 5083 n.53.

As Senator Dominick explained: “What we were trying to do in

the bill . . . was to say that when we are dealing with toxic

agents or physical agents, we ought to take such steps as are

feasible and practical to provide an atmosphere within which a

person’s health or safety would not be affected.” Leg. Hist. at 502.

ator Dominick). Substituting “material” for “any” was

part of an effort to achieve a more “balanced” bill, so

that, in the words of Senator Saxbe, OSHA health stand-

ards would not amount to “harassing measures that

would, in effect, limit production in areas that are not

necessarily going to increase safety.” Id. at 321.”

The legislative compromise that resulted in the imposi-

tion of the “substantial evidence” requirement in Sec-

tion 6(f) of the Act, 29 U.S.C. § 655(f), also is indica-

tive of Congress’ concern that enormous costs not be

imposed to produce insignificant benefits.” This com-

promise, as the Fifth Circuit has observed,

accommodated the Senate’s desire for administra-

tive convenience and flexibility by accepting informal

rulemaking procedures, but placated House concern

for protection of employers from arbitrary bur-

dens imposed by a massive federal bureaucracy, [by]

adopting the substantial evidence test for judicial

review.”

In short, the legislative history of the OSH Act reflects

Congress’ belief “that it was enacting a fair and reason-

able bill that balanced the needs of workers and indus-

6? As noted in a recent comment, the legislative history of the

amendment that added the word “material” to Section 6(b) (5)

suggests “that risks that could not be eliminated cost efficiently

were also meant to be excluded from OSHA regulation.” The

Supreme Court, 1979 Term, 94 Harv. L. Rev. at 247.

7 Unless the “substantial evidence” test were substituted for

the more lenient “arbitrary and capricious” standard, many in

Congress feared that OSHA would be free to impose unjustified

burdens. See Leg. Hist. at 343-44 (remarks of Senator Cook). As

part of the compromise, OSHA was permitted to act through in-

formal rulemaking procedures.

1 Florida Peach Growers Ass'n v. Department of Labor, 489

F.2d 120, 128 (5th Cir. 1974) (citing Associated Indus. of New

York State, Inc. v. Department of Labor, 487 F.2d 842 (2d Cir.

1973) ).

try.” It clearly shows the congressional concern that

some meaningful and effective economic limitations be

placed upon OSHA’s standard-setting authority. With-

out such limitations, it would be impossible to ensure that

the legislation was balanced or that OSHA standards

would be “neither oppressive nor needlessly costly and

without unjustified harassment of management.” ™ The

open-ended affordability test applied by OSHA and the

court below—under which costs are irrelevant short of

the point at which destruction of an entire industry is

threatened—does not comport with the intent of Con-

gress.

Rather, OSHA must present a responsible prediction,

supported by substantial evidence, of what its standard

will cost and what impact it will have on such factors as

production, employment, competition, and prices.“ And

the agency must explain in a cogent manner—on the basis

of intelligible criteria—why it concludes that a standard

having such an economic impact is “feasible.” OSHA’s

performance in the present case falls far short of satis-

fying such a test. For that reason alone, the judgment

below must be reversed. Moreover, as shown below, the

Cotton Dust Standard must be set aside because OSHA

made no attempt to determine whether the Standard

would produce a reduction in risk that is significant when

considered in light of the attendant costs.

™ The Supreme Court, 1979 Term, 94 Harv. L. Rev. at 248.

8 Leg. Hist. at 1091 (remarks of Congressman Randall). This

concern for balanced legislation was a consistent theme. See, €.9.,

id. at 320-21 (remarks of Senator Saxbe) ; id. at 488 (remarks of

Senator Williams); id. at 1148 (remarks of Senator Javits) ; id.

at 1150 (remarks of Senator Eagleton).

™ See Texas Independent Ginners Ass’n v. Marshall, Nos. 78-

2663, et al., slip op. at 1228 (“OSHA’s estimate of the anticipated

cost and expected benefit of proposed regulations are factual find-

ings that must be supported by substantial evidence in the record”),

B. The Decision of the Court Below Should Be Re-

versed Because OSHA Did Not Show That the

Standard Was Likely To Achieve a Reduction in

Risk That Is Significant When Considered in Light

of Its Costs.

In Part I.A above, we showed that the extravagantly

expansive concept of OSHA’s standard-setting power em-

braced by the court below cannot be maintained as a

constitutional or statutory matter. In this part, we

discuss an alternative construction of the Act that more

faithfully reflects the congressional intent that society’s

limited industrial hygiene resources be spent wisely

—so that vast sums are not squandered on measures

that produce no significant health protection for workers.

Because OSHA acted in disregard of this congressional

expectation, the Cotton Dust Standard must be set aside.

1. OSHA Is Required To Show That a Reasonable

Relationship Exists Between the Risk Reduction

Benefits and the Costs of Its Standards.

The language of the OSH Act, as construed by this

Court in Benzene, requires OSHA to show that its stan-

dard will produce a significant reduction in the risk of

material health impairment. Such a showing must reflect

an assessment of the costs and benefits of the standard

(and of available alternatives) sufficient to permit OSHA

to determine that the risk reduction benefits of the stan-

dard bear a reasonable relationship to its costs. This

construction is consistent with the weight of pertinent

judicial and administrative precedent under the OSH

Act and analogous health and safety legislation.

a. The OSH Act as Construed in Benzene

In Benzene, the plurality construed the qualified and

pragmatic language of the OSH Act to reflect Congress’

intent that OSHA not be permitted to make exorbitant

and excessive demands upon the limited resources of

American employers in a quixotic effort to eliminate all

incremental risks from the workplace. To give effect to

these pragmatic congressional concerns, the Benzene plu-

rality limited the exercise of OSHA’s standard-setting

authority to situations where the agency shows that its

standard can achieve “significant benefits” in the form

of a reduction in the risk of material health impairment.

48 U.S.L.W. at 5082. As Mr. Justice Powell put it,

OSHA must show that its standard would “significantly

reduce the hazard.” /d. at 5037 (Powell, J +» concurring).

Requiring OSHA to show that its standard is likely to

produce a significant reduction in the risk of material

health impairment is the necessary and logical comple-

ment to the requirement that the agency demonstrate,

in the first instance, that its standard is addressed to a

significant health risk. It would make no sense to per-

mit OSHA to mandate the expenditure of vast sums

that will result in no substantial reduction in the risk

of material health impairment. Thus, the requirement

that OSHA “consider differences in degrees of significance

rather than simply a total elimination of all risk,” id. at

5031 n.48 (plurality opinion), is a critical element in the

overall statutory scheme.

If OSHA were free to disregard the extent of risk re-

duction that its standards would achieve, the agency,

as the Benzene plurality noted, would possess “the power

to impose enormous costs that might produce little, if

any, discernible benefit.” Jd. at 5032. A standard that

consumes enormous resources to produce a negligible re-

duction in risk is not “reasonably necessary or appropri-

ate to provide safe or healthful employment,” as required

by Section 3(8) of the Act, or “feasible” within the

meaning of Section 6(b) (5). By contrast, a standard

that produces even a very small reduction in a signifi-

cant risk of material health impairment may well satisfy

the requirements of Sections 3(8) and 6(b) (5) if its

cost is relatively low.”

The critical point is that, pursuant to the rationale

of the Benzene plurality, OSHA cannot validly adopt a

health standard without showing both that the standard

addresses a significant risk of material health impair-

ment and that the standard is expected to achieve a

significant reduction in that risk. And the determina-

tion of whether a reduction in risk is “significant” must

reflect an assessment of the costs of achieving it. Other-

wise, OSHA would be free to impose on employers the

arbitrary burdens—costing much and accomplishing little

—that Congress clearly meant to avoid. “It seems un-

likely that Congress . . . intended to require massive

expenditures to obtain small benefits whenever the

expenditures could be made without bankrupting in-

dustries.” *°

If a reduction in risk were automatically deemed sig-

nificant as long as the costs of achieving it would not

produce massive dislocation, OSHA could not possibly

discharge its overriding statutory obligation to protect

workers “so far as possible.” For, under such an ap-

proach, OSHA could require an industry to incur com-

pliance costs up to the very limit of “affordability”

(wherever that point might lie in OSHA’s judgment) in

order to achieve a negligible reduction in the risk ad-

dressed by a single health standard, while other more

substantial risks would perforce remain unaddressed for

lack of resources. OSHA itself should be keenly aware

75 For example, a standard that is expected to reduce the

number of deaths in the workplace from ten per year to nine per

year might well be deemed to satisfy the requirements of Sec-

tions 3(8) and 6(b) (5) if it cost only $100,000, but might not be

thought to satisfy the requirements of those statutory provisions

if it cost $1 billion. In the former instance, the reduction in risk

could be deemed significant in light of the costs, whereas in the

latter instance it might not. See The Supreme Court, 1979 Term,

94 Harv. L. Rev. at 247.

76 Id. at 248-49,

of this problem, since it already has identified more than

200 substances that it considers to be candidates for

regulation as workplace carcinogens pursuant to its Can-

cer Policy.”

In sum, OSHA must demonstrate that its standards

are reasonably necessary or appropriate to achieve a sig-

nificant reduction in the risk of material health impair-

ment. Such a determination must reflect an assessment

of costs and risk reduction benefits sufficient to permit

OSHA to conclude that there is a reasonable relationship

between the two.’* Unless such an assessment is made,

OSHA’s standards inevitably will result in

a serious misallocation of resources and a lower

effective level of safety than could be achieved un-

der standards set with reference to the comparative

benefits available at a lower cost.

Id. at 5038 (Powell, J., concurring).

This does not mean that OSHA must engage in a

rigidly formal cost-benefit calculation that places a dollar

value on employee lives or health.” Assessing the bene-

fits of a standard in light of its costs does not require

that a value be assigned to worker life or health; nor

does such an assessment predetermine the decisions that

OSHA must make. Rather, as the court below recog-

nized, it permits the agency to engage in a “ ‘systematic

™7 See 45 Fed. Reg. 538672 (Aug. 12, 1980). In addition, the

National Institute for Occupational Safety and Health has pub-

lished a list of 2,590 substances in its Tumorigenic Citations Subfile

of the Registry of Toxic Effects of Chemical Substances (Oct.

1979). See also Benzene, 48 U.S.L.W. at 5032 (noting “that there

are literally thousands of substances used in the workplace that

have been identified as carcinogens or suspect carcinogens”).

78 See The Supreme Court, 1979 Term, 94 Harv. L. Rev. at 249

(OSH Act should be construed to require a showing “that the

benefits of a regulation bear a reasonable relationship to its

costs’’).

™ See Texas Independent Ginners Ass’n v. Marshall, Nos. 78-

2663, et al., slip op. at 1222 n.44.

ee ee

analysis and evaluation of alternative courses of action.’ ”

Pet. App. at 69-70 n.152, 617 F.2d at 662 n.152 (citation

omitted). And it allows the agency (and the public) to

ensure that society’s limited industrial hygiene resources

are not being squandered or misallocated in a fashion that

produces very little health benefit and that provides

workers with less overall protection than might otherwise

be possible.”

The nature of the exercise in which OSHA must en-

gage was adumbrated in Benzene. First, OSHA must

make a responsible determination of the costs and risk

reduction benefits of its standard. Pursuant to the

requirement of Section 6(f) of the Act, this determina-

tion must be factually supported by substantial evidence

in the record. The subsequent determination whether

the reduction in health risk is “significant” (based upon

the factual assessment of costs and benefits) is a judg-

ment to be made by the agency in the first instance.*

Although a court might well be reluctant to second guess

the agency’s judgment on the question of significance,

the mere fact that OSHA is obligated to make such a

determination, based upon an assessment of costs and

benefits, will have a salutary effect on the agency’s de-

cisionmaking process.

For one thing, engaging in such an assessment will

lead OSHA to reject control strategies the costs of which

8° Of course, life and health-protective resources are not un-

limited, and compliance with OSHA standards is not the only

cost industry must bear. As noted in Making Prevention Pay,

Final Report of the Interagency Task Force on Workplace Safety

and Health VII-15 (Dec. 14, 1978) (footnotes omitted) :

The cost of complying with OSHA is only part of the cumu-

lative impact of Federal regulation on individual firms and

their industries. There is growing concern that these cumula-

tive impacts are costing jobs and draining substantial invest-

ment from new efforts at industrial innovation, while adding

perhaps 3/4 of 1% to the yearly rate of inflation.

81 See Benzene, 48 U.S.L.W. at 5034, 5035 n.62 (plurality opin-

ion).

are grossly disproportionate to their benefits. It also

will cause uhe agency to give some consideration to the

impact that its standard would have on the industry’s

ability to address other, more significant health and

safety risks in the future—including risks that OSHA

anticipates will be addressed in standards that are at

least in the planning stage.” Finally, forcing OSHA to

engage in such an ass -sment and to explain the de-

termination it has reached provides a potential legisla-

tive check on what might otherwise amount to the exer-

cise of virtually untrammeled authority. It will allow

for correction, through the political process, of actions

that are deemed by the Congress to be extreme, unwar-

ranted, and inconsistent with congressional intent."*

b. Judicial and Administrative Precedent

While the courts of appeals have not been unanimous

in requiring that OSHA standards reflect a careful as-

sessment of risk reduction benefits in light of costs, the

weight of relevant precedent decidedly favors such a

construction of the Act. Before the decision below, only

one case had considered explicitly the nature of the eco-

nomic impact assessment that is required in order for

OSHA to comply with Section 3(8) as well as Section

6(b) (5) of the Act. American Petroleum Institute v.

OSHA, 581 F.2d 493 (5th Cir. 1978). That decision, re-

viewed by this Court in Benzene, construed Sections 3(8)

and 6(b) (5) as requiring OSHA to assess the expected

health protection benefits of its standards in light of the

cost burdens to be imposed and to show that the benefits

82 A contrary reading of the Act “could force the depletion of an

industry’s resources in an effort to reduce a single risk by some

speculative amount, even though other significant risks remain

unregulated.” Jd. at 5088 & n.7 (Povell, J., concurring).

83 See Amalgamated Meat Cutters & Butcher Workmen v. Con-

nally, 337 F. Supp. 737, 758-59 (D.D.C. 1971) (3-judge court)

(Leventhal, J.); cf. Yakus v. United States, 321 U.S. 414, 426

(1944).

bear a reasonable relationship to the costs. 581 F.2d at

504. A different panel of the Fifth Circuit recently va-

cated the Cotton Dust Standard as it applied to the ginn-

ing industry because, among its other failings, OSHA did

not show that such a reasonable relationship existed in

that case. Texas Independent Ginners Association v.

Marshall, Nos. 78-2668, et al., slip op. at 1224-25.

The Courts of Appeais for the Sixth and Seventh Cir-

cuits have interpreted the term “feasible” to reach a

similar result. Thus, in RMI Co. v. Secretary of Labor,

594 F.2d 566, 573 (6th Cir. 1979), the Sixth Circuit

rejected the notion that controls required by an OSHA

standard are “necessarily . . . economically feasible

merely because the employer can easily (or otherwise)

afford them.” Rather, according to the court, the ex-

penditures required by a standard are economically feas-

ible only if OSHA demonstrates that there is “reasonable

assurance that there will be an appreciable and cor-

responding improvement in working conditions.” Jd. Ac-

cordingly, the Sixth Circuit insisted that OSHA

weigh the costs of compliance against the benefits

expected to be achieved thereby in order to determine

whether the proposed remedy is economically feasible.

Id.

In Turner Co. v. Secretary of Labor, 561 F.2d 82, 86

(7th Cir. 1977), the Seventh Circuit construed the term

“feasible” in the same way, concluding that required

controls could not be deemed feasible without determining

“whether the health benefits to employees . . . justify the

cost.” Such a construction of the term “feasible,”

the court noted, was “in accordance with the clear in-

tent of Congress and the purpose of the Occupational

Safety and Health Act.” Jd. at 85.% Thus, the decision

* In Marshall v. West Point Pepperell, Inc., 588 F.2d 979, 981

n.3 (5th Cir. 1979), the Fifth Circuit observed that the Turner

decision “certainly comports with the plain import of the term

feasible.”

below is inconsistent with the weight of the most directly

relevant judicial precedent.®

It is also inconsistent with judicial interpretations of

similiar language in other statutes. For example, courts

have construed the provision of the Consumer Product

Safety Act authorizing the adoption of rules “reasonably

necessary to eliminate or reduce an unreasonable risk of

injury” * to require the agency to assess the expected

benefits in light of the burdens to be imposed by the

standard.” Prior to the Benzene decision, OSHA took the

position that this construction of the Consumer Product

Safety Act did not apply to the OSH Act, since the Con-

sumer Product Safety Act is addressed only to “unrea-

sonable risks,” while, in OSHA’s view, the OSH Act re-

quired the elimination of all risks of material health im-

pairment, whether or not they are so significant as to be

unreasonable. However, this position was rejected in

Benzene, where the OSH Act was construed as limiting

OSHA to addressing only significant risks in its stand-

ards. Consequently, the distinction that OSHA and the

court of appeals, see Pet. App. at 71-72 n.159, 617 F.2d

85 Admittedly, other courts have taken a more restrictive ap-

proach to the concept of economic feasibility. See Americar Iron

& Steel Inst. v. OSHA, 577 F.2d 825 (3d Cir. 1978), cert. granted,

48 U.S.L.W. 3855 (U.S. July 2, 1980), cert. dismissed, 49 U.S.L.W.

3145 (U.S. Sept. 10, 1980); Industrial Union Dep’t, AFL-CIO v.

Hodgson, 499 F.2d 467 (D.C. Cir. 1974). However, prior to the

decision below, only the Third Circuit in American Iron & Steel

Institute had limited economic feasibility to an affordability test

in an action brought by employers to challenge the validity of an

OSHA standard.

Another panel of the D.C. Circuit has since followed the con-

struction of the Act adopted by the court below. United Steel-

workers of America, AFL-CIO-CLC v. Marsheil, [1980] OSH Dec.

(CCH) 30329, 8 OSH Cas. (BNA) 1810 (D.C. Cir. Aug. 15, 1980).

8615 U.S.C. § 2058(c) (2) (A) (1976).

87 Aqua Slide ‘N’ Dive Corp. v. CPSC, 569 F.2d 831 (5th Cir.

1978). Accord, D.D. Bean & Sons v. CPSC, 574 F.2d 643 (1st Cir.

1978) ; cf. Forester v. CPSC, 559 F.2d 774, 789 (D.C. Cir. 1977).

at 663 n.159, drew between the Consumer Product Safety

Act and the OSH Act can no longer be maintained.™

The decision below is also at odds with the long-

standing position of the Occupational Safety and Health

Review Commission (“OSHRC’’), the agency charged by

Congress with responsibility for deciding enforcement

proceedings under the Act.” In Continental Can Com-

pany, [1976-1977] OSH Dec. (CCH) 25250, 25256,

4 OSH Cas. (BNA) 1541, 1547 (1976), OSHRC inter-

preted the term “feasible” to require that “all the rele-

vant costs and benefits [be] weighed.” * OSHRC has ad-

88 Absent an express bar, other health and safety statutes also

have been read to require consideration of risk, benefit and cost

evidence. Thus, the section of the National Traffic and Motor

Vehicle Safety Act providing for the adoption of “reasonable, prac-

ticable and appropriate” traffic safety standards, 15 U.S.C. § 1392

(f) (3) (1976), has been construed as requiring the Secretary of

Transportation to “identif[y] some of the costs associated with the

proposal and determine[] that these costs are overridden by rea-

sonably predictable benefits.” H & H Tire Co. v. Department of

Transportation, 471 F.2d 350, 356-57 (7th Cir. 1972) (Stevens, J.,

concurring opinion adopted by the court) (footnotes omitted).

Similarly, the Federal Water Pollution Control Act provision

directing that EPA’s 1983 effluent limitation guidelines reflect

“the best available technology economically achievable,” 33 U.S.C.

§ 1811(b) (2) (A) (1976 & Supp. III 1979), has been held to re-

quire consideration by EPA of “the benefits derived from the

application of its effluent reduction requirements.” Appalachian

Power Co. v. Train, 545 F.2d 1351, 1361 (4th Cir. 1976). Accord,

National Crushed Stone Ass’n, Inc. v. EPA, 601 F.2d 111, 122-23

(4th Cir. 1979), cert. granted, 48 U.S.L.W. 3535 (U.S. Feb. 19,

1980).

89 See Section 12 of the Act, 29 U.S.C. § 661; Leg. Hist. at 462.

* In Continental Can, OSHA couched its argument in the very

terms embraced by the court below in the present case, claiming

that Section 6(b)(5) “requires employers to expend funds for

each and every health hazard whether life threatening or not with-

out limit so long as the expenditures for each hazard can be borne

without putting the employers’ financial condition in jeopardy.”

[1976-1977] OSH Dec. (CCH) at 25256, 4 OSH Cas. (BNA) at

hered to this view in subsequent decisions.”

As these decisions indicate, there is nothing novel in

Suggesting that an agency should develop and consider

information relating to the expected benefits and costs

of its proposed actions. To the contrary, the experience

of numerous federal agencies (including OSHA itself)

demonstrates that assessing the costs and benefits of

regulatory action is both a commonplace and extremely

useful exercise. Perhaps the best example of this is the

experience of the Environmental Protection Agency

(“EPA”), which routinely conducts risk assessments for

carcinogenic substances, an exercise that, in EPA’s view,

represents “a significant step toward the objective of

achieving real benefits in improved public health while

avoiding the burdens of undesirable regulatory action.”

41 Fed. Reg. 21402, 21402-03 (1976).

More recently, under Section 112 of the Clean Air Act,

42 U.S.C. § 7412 (Supp. III 1979), EPA proposed a policy

for identifying and regulating airborne substances posing

a risk of cancer (the “Air Cancer Policy”). 44 Fed. Reg.

1547. OSHRC rejected OSHA’s position as being “inconsistent with

the intent of Congress” and observed:

Clearly, employers have finite resources available for use to

abate health hazards. And just as clearly if they are to be made

to spend without limit for abatement of this hazard their

financial ability to abate other hazards, including life threat-

ening hazards, is reduced.

Id.

*1 See Castle & Cooke Foods, [1977-1978] OSH Dec. (CCH)

26325, 5 OSH Cas. (BNA) 1485 (1977), appeal docketed, No. 77-

2565 (9th Cir. July 14, 1977); Great Falls Tribune Co., [1977-

1978] OSH Dec. (CCH) 26308, 5 OSH Cas. (BNA) 1443 (1977),

appeal docketed, No. 77-2566 (9th Cir. July 14, 1977); West Point

Pepperell, Inc., [1977-1978] OSH Dec. (CCH) 26136, 5 OSH Cas.

(BNA) 1257 (1977), aff'd, Marshall v. West Point Pepperell, Inc.,

588 F.2d 979 (5th Cir. 1979); KLI, Inc., [1977-1978] OSH Dec.

(CCH) 26935, 6 OSH Cas. (BNA) 1097 (1977).

Most recently, in Samson Paper Bag Co., [1980] OSH Dec.

(CCH) 380038, 30044 (1980), the three OSHRC Commissioners

58642 (1979). Section 112 of the Clean Air Act requires

EPA to establish national emission standards for hazard-

ous air pollutants at a level that “provides an ample

margin of safety to protect the public health.” 42 U.S.C.

§ 7412(b) (1) (B). If anything, this language would ap-

pear to be less qualified and more singleminded in its

focus on health protection than the language of Sections

3(8) and 6(b) (5) of the OSH Act. Yet EPA has stated

that Section 112 was not intended to require “the com-

plete elimination of all risks,” but rather permits the

agency to “consider other social and economic factors

[including the cost of reducing the risks further] in

determining whether an ample margin of safety is pro-

vided by a given control level.” 44 Fed. Reg. at 58661,

col. 1. Other agencies, including the Food and Drug

Administration and the Consumer Product Safety Com-

mission, also utilize risk estimation procedures to guide

their regulatory decisions.”

OSHA itself performs cost and benefit assessments.

As noted in Benzene, 48 U.S.L.W. at 5031, OSHA en-

gages in cost-benefit analysis in determining priorities

for regulation under Section 6(b) (5), an exercise that

OSHA believes is essential to ensure that it allocates its

resources in a reasonable and efficient manner.” If such

an analysis is appropriate in order to ensure that OSHA’s

resources are not misallocated, its use surely is vital to

were divided, but two Commissioners agreed to remand the case

for further proceedings consistent with Continental Can. See id. at

30045 (Commissioner Barnako) ; id. at 30046 (Chairman Cleary).

2 For example, under Section 406 of the Federal Food, Drug,

and Cosmetic Act, 21 U.S.C. § 346 (1976), FDA conducted a risk

assessment to assist it in setting a tolerance level for aflatoxin in

consumer peanut products, 43 Fed. Reg. 8808 (1978), and the

Consumer Product Safety Commission developed a quantitative

risk estimate for benzene in connection with its proceedings for

regulating that substance. 43 Fed. Reg. 21838, 21845 (1978).

93 See also National Congress of Hispanic Am. Citizens v. Mar-

shall, 626 F.2d 882 (D.C. Cir. 1979).

ensure that the much greater societal resources com-

mitted under OSHA standards are not misallocated.

Moreover, eleven months after the Standard was prom-

ulgated, OSHA prepared and submitted to Congress a

lengthy and detailed cost-effectiveness/cost-benefit analy-

sis for the Cotton Dust Standard itself.

As can be seen from the foregoing discussion, the “ex-

perience gained under the [OSH Act] and other health

and safety laws,” 29 U.S.C. § 655(b) (5), further con-

firms the importance and usefulness of performing a

responsible cost and benefit assessment in the setting

of occupational health standards.* Because OSHA failed

to perform such an assessment here, it could not deter-

mine that the Cotton Dust Standard is reasonably nec-

essary or appropriate to achieve a reduction in risk that

is significant in light of its enormous costs. The failure

of the court below to require OSHA to perform such an

assessment and to make such a determination requires

reversal.

* The Report was not part of the rulemaking proceeding, was

not submitted for industry comment, was not before the court of

appeals, and, as OSHA acknowledges, “does not reflect the decision-

making process used to promulgate the final standard.” Department

of Labor Report to the Congress, Cotton Dust: Review of Alterna-

tive Technical Standards and Control Technologies, at v (May 14,

1979) [hereinafter “Cotton Dust Report to Congress”]. Accord-

ingly, the Report cannot be relied upon by CSHA to support the

Cotton Dust Standard. While ATMI does not agree with many of

the assumptions employed, the methods followed, or the conclusions

reached in the Report, the Report still demonstrates that OSHA

can do a better job of assessing costs, benefits and available alter-

natives than it did in the Cotton Dust proceeding.

*5 The usefulness of cost and benefit assessments in regulatory

decisionmaking is discussed in an extensive literature. See, e.g.,

National Academy of Sciences, Decision Making for Regulating

Chemiculs in the Environment 44-45 (1975) ; Kasper, Cost-Benefit

Analysis in Environmental Decisionmaking, 45 Geo. Wash. L. Rev.

1013 (1977); Oi, On the Economics of Industrial Safety, 38 L. &

Contemp. Prob. 669 (1974).

2. The Judgment Below Must Be Reversed Because

OSHA Did Not Show That the Standard Would

Produce a Reduction in Risk That Is Significant

in Light of Its Costs.

Under the approach followed by OSHA and the court

below, it was irrelevant that the Cotton Dust Standard

might yield health protection benefits not significantly

greater than those that could be realized from a much

less costly standard. Consequently, OSHA did not assess

the relative risk reduction benefits of its Standard and of

the alternative proposed by ATMI, to see whether its

more stringent (and far more costly) Standard was jus-

tified in light of the relative benefits and respective

costs. For that reason, the judgment below must be

reversed.

If the court below had imposed such a requirement,

however, it could not reasonably have found that OSHA

satisfied it here, since the agency never correctly iden-

tified the costs or the benefits of its Standard, let alone

of the ATMI alternative. The critical flaws in OSHA’s

cost estimate already have been described at some length,

see pages 24-30 supra, and need not be revisited. It

will be useful, however, to comment briefly on the in-

adequacy (indeed, the virtual nonexistence) of OSHA’s

assessment of risk reduction benefits.

OSHA devoted only one page of the Standard’s 45-

page preamble to a discussion of benefits. 43 Fed. Reg.

at 27378-79. That discussion reveals almost nothing

about the risk reduction benefits that OSHA’s Standard

might be expected to produce in comparison to the ATMI

alternative.”

*6In any event, it is analytically flawed. For example, OSHA

arbitrarily raised the number of employees in yarn manufacturing

by almost 60% from 126,000 to 200,000. No support was offered

for this capricious rejection of figures taken directly from a United

States Department of Labor survey. Ex. 6, No. 76 at III-1, 8, 28.

Moreover, OSHA applied Merchant’s predicted prevalence rate to

First, OSHA made no attempt to analyze the impact

that a medical surveillance program (combined with se-

lective respirator use and employee transfer in appropri-

ate cases) would have on the development of byssinosis

at any level of exposure. Yet OSHA acknowledged that

a program of medical screening (combined with such

administrative measures) is likely to have a significant

impact in reducing the incidence of byssinosis among

textile workers.” And the President’s Council on Wage

and Price Stability suggested that the benefits of a med-

ical surveillance or respirator program might well be

greater than the benefits that would be achieved by re-

ducing permissible exposure levels through engineering

dust controls.**

Second, OSHA made no attempt to differentiate be-

tween the various grades or symptoms of byssinosis in

evaluating the potential benefits of its Standard. Since

the court below did not decide that the nondisabling and

reversible symptoms of byssinosis constitute “material

impairment of health,” Pet. App. at 52-58, 617 F.2d at

655, any reduction in the risk of developing this mild

form of byssinosis should not be included as a potential

health benefit within the meaning of the OSH Act. As

noted by the Council on Wage and Price Stability, “if

the entire yarn manufacturing industry, even though Merchant had

acknowledged that his study cannot be used to draw inferences for

the entire textile industry. See note 19 supra.

*7 See page 15 supra; 48 Fed. Reg. at 27359, col. 8; Cotton Dust

Report to Congress 31, 49.

*8 Comments of the Council on Wage and Price Stability, Ex. 111

at 29. As the Council pointed out, medical screening combined with

respirator use and employee transfer where appropriate “might

provide more cost-effective solutions to the byssinosis problem.” Jd.

at 30. For that reason, it urged OSHA to examine the “cost effec-

tiveness of each provision [i.e., dust control, medical surveillance,

respirator use and employee transfer] . . . independently and in

concert with the other provisions in order to ensure the most pro-

tection for the least cost.” Jd.

eliminating ‘material impairment’ and not occupational

discomfort is OSHA’s main concern, then standard de-

velopment should focus on the irreversible harmful health

effects,” °°

Even if prevention of the mild, low-grade symptoms of

byssinosis were a cognizable health benefit under the

Act, however, it surely is a much less significant benefit

than the prevention of chronic and disabling byssinosis.

As the Council on Wage and Price Stability observed,

any meaningful assessment of benefits must reflect these

differences in the health impact of the different grades

of byssinosis, for “a system that simply sums all degrees

of health problems from the serious to the inconsequential

omits important information and may be misleading.” '

Yet OSHA’s offhand discussion of benefits treats all

forms of byssinosis the same.

Thus, OSHA’s discussion of benefits in the Cotton Dust

proceeding is at best a formality that does not begin to

approach the kind of careful and systematic assessment

that would permit the agency to determine whether the

Standard is likely to result in a significant reduction in

risk as compared to ATMI’s much less costly alterna-

tive." Instead, OSHA treated cotton dust like a car-

cinogen, ignoring the fact that byssinosis, in its early

*? Comments of the Council on Wage and Price Stability, Ex. 111

at 15.

100 7d. at 15, 27, 29. Cf. National Congress of Hispanic Am.

Citizens v. Marshall, 626 F.2d 882, 889 (D.C. Cir. 1979) (approving

the decision of OSHA to consider “the nature and severity of the

hazardous exposure” as well as the number of employees to be bene-

fited in setting priorities for the promulgation of occupational

health and safety standards).

101 Cf, United Parcel Serv. of Ohio, Inc. v. OSHRC, 570 F.2d

806, 812 (8th Cir. 1978) (overturning an order enforcing a safety

standard because of the failure “to give consideration to less rigor-

ous requirements” having less severe economic consequences).

stages is nondisabling and reversible and that a program

of medical surveillance is likely to have a dramatic im-

pact in reducing the number of serious cases of byssinosis

that might otherwise occur.’” As a result, the record in

this case contains no supportable determination that the

reduction in risk that might result from the Cotton Dust

Standard is significant when considered in light of the

costs. For that reason, the judgment of the court below

must be reversed.!*

Il. THE COURT BELOW ERRONEOUSLY CON-

CLUDED THAT OSHA HAS AUTHORITY TO RE-

QUIRE EMPLOYERS TO MAINTAIN THE WAGES

AND BENEFITS OF EMPLOYEES WHO ARE

TRANSFERRED FOR REASONS UNRELATED TO

HEALTH IMPAIRMENT.

Under the Standard, respirators must be provided and

used in various circumstances—for example, during the

period in which engineering controls are being installed

or where such controls are not sufficient to reduce ex-

02 43 Fed. Reg. at 27858-59; Comments of the Council on Wage

and Price Stability, Ex. 111 at 6-7, 18, 15, 27, 29.

8 In fact, OSHA did not even establish that textile workers

would be exposed to a “significant risk of material health impair-

ment” if the ATMI alternative were adopted. For that reason alone,

the Cotton Dust Standard should be set aside, as the Benzene

Standard was in similar circumstances.

The judgment below also should be reversed because, although

ATMI “opposed on substantial grounds” the strict numerical lim-

its adopted by OSHA and proposed a much less costly alternative,

OSHA made no serious attempt to “explain and support” its rejec-

tion of the ATMI alternative in favor of the much more burden-

some approach of the Standard. Associated Indus. of New York

State, Inc. v. Department of Labor, 487 F.2d 842 (2d Cir. 1978) ;

ef. Synthetic Organic Chem. Mfrs. Ass’n v. Brennan, 508 F.2d 1155,

1160 (3d Cir. 1974), cert. denied, 420 U.S. 973 (1975) (OSHA must

consider presently available alternatives) ; Industrial Union Dep't,

AFL-CIO v. Hodgson, 499 F.2d at 475 (OSHA must explain why

it “chooses to follow one course rather than another’ )

posures below the applicable PEL.’* Respirators also

must be provided for use during various maintenance,

repair and cleaning activities, or whenever an employee

requests a respirator, whether or not the PEL is ex-

ceeded. !

Pursuant to subsection (f) (2) (v) of the Standard, if

a physician determines that an employee is unable to

wear a respirator when the Standard requires its use,

the employee must be given the opportunity to transfer

to another position, having a dust level at or below the

PEL, that is available or later becomes available.’ Such

transfers are to be made even though the employee shows

no symptom of byssinosis and even though his inability tc

wear a respirator is not attributable to past employment.

Moreover, employers must insure that an employee who

is so transferred “suffers no loss of earnings or other

employment rights or benefits as a result of the trans-

fer.” **% This guarantee against any loss of earnings,

rights or benefits appears to be subject to no limitation

in terms of duration or otherwise.

The wage guarantee provision of the Cotton Dust

Standard raises a relatively narrow question for review

in this case: Whether OSHA has authority to require

employers to maintain the earnings, benefits, and rights

of employees who are transferred without any demon-

stration that they are suffering a work-related health

impairment or even that their inability to wear respira-

tors is related to exposure to cotton dust or other aspects

of their employment.’”

104 29 C.F.R. § 1910.1043(f) (1979), Pet. App. at 6-9.

106 29 C.F.R. § 1910.1043 (f) (2) (v) (1979), Pet. App. at 8-9.

106 Jd.

107 On the facts of the present case, there is no need to address

the separate question whether OSHA can impose a medical removal-

wage retention requirement that is more specifically related to

health impairment. This latter question is raised by OSHA’s Lead

No one has suggested that the OSH Act contains an

express grant of authority for the imposition of a wage

guarantee provision,’’* and the court below did not pre-

tend otherwise. The court did conclude, however, that

the provision was impliedly authorized by Section 3(8)

of the Act. See Pet. App. at 96, 617 F.2d at 674. The

court reasoned that, in the absence of a wage guarantee

provision, employees might “refrain from disclosing ac-

tual health impairments from the dust exposure,” be-

cause they might be reluctant to risk “disadvantageous

transfers, or even risk losing their jobs.” Pet. App. at

97, 617 F. 2d at 674-75.

The court apparently misconceived the nature of the

employee transfer-wage guarantee provision of the Cot-

ton Dust Standard. Under the Standard, employee trans-

fers are not made when the worker is found to have

suffered “actual health impairments from the dust ex-

posure.” To the contrary, the fact that an employee has

suffered actual health impairment from dust exposure

does not entitle him to a transfer and wage guarantee.

A transfer is required only when an employee is found

to be unable to wear a respirator, whether or not he ex-

hibits any symptoms of even the mildest form of bys-

Standard, 29 C.F.R. § 1910.1025(d), (j), (k) (1979), as amended

at 44 Fed. Reg. 50338 (1979), id. at 60981, id. at 68828, which was

at issue in United Steelworkers of America, AFL-CIO-CLC v. Mar-

shall, [1980] OSH Dec. (CCH) 30829, 8 OSH Cas. (BNA) 1810

(D.C. Cir. Aug. 15, 1980). As OSHA recognized, the broader ques-

tions of mandatory medical removal and wage retention posed in

the Lead Standard proceeding are not presented by the Cotton

Dust Standard, 48 Fed. Reg. at 27387, col. 8, and the court below

did not address those questions. See Pet. App. at 95-96 n.238, 617

F.2d at 674 n.2388. Consequently, a decision regarding the wage

guarantee provision of the Cotton Dust Standard would not neces-

sarily be applicable to the substantially different medica] removal-

rate retention provision of the Lead Standard.

108 See 43 Fed. Reg. at 52976.

109 The fact that health impairment does not entitle a worker to

the wage guarantee is consistent with OSHA’s description of the

sinosis.‘° Thus, the court below appears to have upheld

the validity of the Cotton Dust wage guarantee provision

under a health impairment rationale that does not apply

to the Standard.

In any event, reading Section 3(8) as an authoriza-

tion for OSHA to impose the wage guarantee provision

under the rationale advanced by the court below proves

too much, for it would invest OSHA with virtually limit-

less authority to impose almost any imaginable require-

ment that is arguably related to promoting worker health.

For example, employer-provided universal health insur-

ance would presumably promote worker health, as would

employer-sponsored food-stamp programs or retreats

to health spas. Surely Congress did not intend to au-

thorize OSHA to include’ such measures in its health

standards; yet, it is difficult to distinguish them from

a wage guarantee provision under the statutory authori-

zation test laid down by the court."

In short, the statutory construction espoused by the

court below would permit an “uncanalized delegation of

legislative power.” Benzene, 48 U.S.L.W. at 5040 (Rehn-

quist, J., concurring). As the Benzene plurality observed,

“Ta] construction of the statute that avoids this kind of

open-ended grant should certainly be favored.” Id. at

5032 (plurality opinion). And here, as in that case,

serious constitutional questions can be avoided by resort

provision as aiming “to minimize any adverse economic impact on

the employee by virtue of the inability to wear a respirator.” 43

Fed. Reg. at 27387, col. 3 (emphasis added). Thus, the provision—

which mandates a wage guarantee even without health impairment

but does not assure such a guarantee where there is actual health

impairment—cannot fairly be characterized as medically related.

110 29 C.F.R. § 1910.1043(f) (2) (v) (1979), Pet. App. at 8-9.

111 See also Taylor Diving & Salvage Co. v. Department of Labor,

599 F.2d 622, 625 (5th Cir. 1979) (holding that Section 3(8) of

the Act does not authorize OSHA to protect an employee’s job se-

curity by limiting the medical fitness standards that an employer

may impose as a qualification for continuing employment).

to legislative history that plainly limits the reach of

what otherwise might be overbroad statutory language.

In the course of the debates on the OSH Act, the

House of Representatives considered and rejected a pro-

vision that would have permitted a form of wage guaran-

tee. Specifically, as this Court noted in Whirlpool Corp.

v. Marshall, 445 U.S. 1 (1980), the Daniels bill as origi-

nally introduced permitted an employee to absent himself

from the workplace at his own initiative if potentially

toxic or harmful substances were present “without loss

of regular compensation for such period.” "2 The Senate

bill contained no comparable “strike with pay” provision;

nor did the bill as enacted. After canvassing this legis-

lative history in Whirlpool Corp. v. Marshall, this Court

observed that

What primarily troubled Congress about the Daniels

bill’s “strike with pay” provision was its requirement

that employees be paid their regular salary after

. refus[ing] to work .... It is instructive that

virtually every time the issue of an employee’s right

to absent himself from hazardous work was discussed

in the legislative debates, it was in the context of the

employee’s right to continue to receive his usual

compensation.

445 U.S. at 17-18 (emphasis added)."* This same guar-

anteed right to receive pay irrespective of work per-

formed is an integral feature of the wage guarantee

scheme established in the Cotton Dust Standard. The

rejection of the “strike with pay” provision of the Daniels

bill makes clear that Congress did not intend to empower

OSHA to impose such a requirement.'

112 H.R. 16785, 91st Cong., 2d Sess. § 19(a) (5) (1970), reprinted

in Leg. Hist. at 969-70.

113 Although the Court upheld the regulation at issue in Whirl-

pool (authorizing a worker to absent himself in good faith from a

“hazardous condition” in the workplace), it stressed that the regu-

lation in question did not “require employers to pay workers who

refuse to perform their assigned tasks in the face of imminent

danger.” 445 U.S. at 19.

Furthermore, Congress passed the OSH Act barely a

year after enacting the Federal Coal Mine Health and

Safety Act of 1969. 30 U.S.C. §§ 801-960 (1976). The

Coal Act contains language authorizing the responsible

agency in general terms to act to promote the health and

safety of miners. See 30 U.S.C. § 811(d). Yet Congress

in the Coal Act also expressly created a right of guar-

anteed wage protection for miners transferred to less

hazardous work because of pneumoconiosis.'* Congress

was thus fully aware of the possible importance of wage

guarantees in promoting worker health and safety when

it debated the Occupational Safety and Health Act the

following year. Yet it chose not to include in the OSH

Act the type of earnings protection requirement that

only a year before it expressly had included in the Coal

Act."° Against this legislative background, OSHA’s at-

tempt to imply such authority under the OSH Act must

be rejected.'*°

114In order to make sure that mine workers participated in the

X-ray program made available to them, the Coal Act specifically

provided that any miner who showed evidence of pneumoconiosis

“shall be afforded the option of transferring” to other areas of the

mine and “shall receive compensation for such work at not less

than the regular rate of pay received by him immediately prior to

his transfer.” 30 U.S.C. § 843(b) (2), (3) (1976).

Even with respect to pneumoconiosis, neither the Coal Act of

1969 nor the Federal Mine Safety and Health Act of 1977 protects

a transferred miner’s seniority rights. See, e.g., Section 201(a) (7),

30 U.S.C. §811(a)(7) (Supp. III 1979). By contrast, the wage

guarantee procedure under the Cotton Dust Standard purports to

protect all worker “rights” and “benefits,” presumably including

seniority rights.

115 Congress also included a wage guarantee provision in the

Clean Air Act Amendments of 1977. See 42 U.S.C. § 7410(a) (6)

(Supp. III 1979).

116 Cf. General Elec. Co. v. Southern Constr. Co., 388 F.2d 185,

138 n.4 (5th Cir. 1967), cert. denied, 390 U.S. 955 (1968).

CONCLUSION

For the reasons set forth above, the judgment of the

court. of appeals should be reversed and the case re-

manded with instructions to grant the petitions for re-

view and vacate the Standard.

Respectfully submitted,

ROBERT H. BORK NEIL J. KING

142 Huntington Street Counsel of Record

New Haven, Connecticut 06511 A. STEPHEN HutT, Jr.

ANDREW N. VOLLMER

GREGORY B. TOBIN |

OGLETREE, DEAKINS, N ASH, uwtiaee

a STEWART AND Washington, D.C. 20006

DWARDS (202) 872-6000

First National Bank Tower

Two Peachtree Street, N.W.

Atlanta, Georgia 30383

Counsel for American Textile

Manufacturers Institute, Inc.

ROBERT T. THOMPSON THOMAS A. EVINS

GARY S. KLEIN CLYDE H. HAMILTON

THOMPSON, MANN & HUTSON BUTLER, MEANS, EVINS &

The Daniel Building BROWNE

Suite 2222 P.O. Box 451

Greenville, S.C. 29602 Spartanburg, S.C. 29304

Counsel for Milliken and Counsel for Arkwright Mills

Company

ROBERT T. THOMPSON

JOSEPH K. MADDOX, JR. GARY S. KLEIN

P.O. Box 5784 THOMPSON, MANN & HUTSON

Spartanburg, S.C. 29304 The Daniel Building

. Suite 2222

Cone fer. Apartnn Bee Greenville, S.C. 29602

ROBERT T. THOMPSON Counsel for Blair Mills, Inc.

GARY S. KLEIN

THOMPSON, MANN & HUTSON HARLAN H. HUNTLEY

The Daniel Building ROGER L. TUTTLE

Suite 2222 2291 Memorial Drive

Greenville, S.C. 29602 Danville, Virginia 24541

Counsel for Hermitage, Inc. Counsel for Dan River, Inc.

SAMUEL K. ABRAMS

BRIAN E. MORAN

BAKER & HOSTETLER

818 Connecticut Ave., N.W.

Washington, D.C. 20006

H. J. ELAM, III

NEIL W. KOONCE

Cone Mills Corporation

Greensboro, N.C. 27405

Counsel for Cone Mills

Corporation

DAN M. BYRD, JR.

J. SPRATT WHITE

P.O. Box 70

Fort Mill, S.C. 29715

Counsel for Springs Mills,

Ine.

ROBERT H. BORK

142 Huntington Street

New Haven, Connecticut 06511

Counsel for Fieldcrest

Mills, Inc.

November 20, 1980

THOMAS A. EVINS

CLYDE H. HAMILTON

BUTLER, MEANS, EVINS &

BROWNE

P.O. Box 451

Spartanburg, S.C. 29304

Counsel for Mayfair Mills

FRED M. RICHARDSON

Lovic A. BROOKS, JR.

CHARLES A. EDWARDS

CONSTANGY, Brooks & SMITH

1900 Peachtree Center Building

230 Peachtree Street, N.W.

Atlanta, Georgia 30303

Counsel for Riegel Textile

Corporation

RICHARD H. MONK, Jr.

C. POWERS DORSETT

West Point-Pepperell, Inc.

P.O. Box 71

West Point, Georgia 31833

Counsel for West Point-

Pepperell, Inc.

APPENDIX

Article I, Section 1 of the United States Constitution

provides in pertinent part:

All legislative Powers herein granted shall be

vested in a Congress of the United States....

Section 2(b) of the OSH Act and paragraph (9) of

that section, 29 U.S.C. § 651(b) (9) (1976), provide:

The Congress declares it to be its purpose and

policy, through the exercise of its powers to regulate

commerce among the several States and with foreign

nations and to provide for the general welfare, 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—

(9) by providing for the development and

promulgation of occupational safety and health

standards....

Section 3(8) of the OSH Act, 29 U.S.C. § 652 (8)

(1976), provides:

For the purposes of this chapter—

(8) The term “occupational safety and health

standard” means a standard which requires condi-

tions, or the adoption or use of one or more prac-

tices, means, methods, operations, or processes, rea-

sonably necessary or appropriate to provide safe or

healthful employment and places of employment.

Section 6 of the OSH Act, 29 U.S.C. § 655 (1976),

contains the following pertinent provisions:

(a) Promulgation by Secretary of national consensus

standards and established Federal standards;

time for promulgation; conflicting standards

Without regard to chapter 5 of title 5 or to the

other subsections of this section, the Secretary shall,

as soon as practicable during the period beginning

with the effective date of this chapter and ending

two years after such date, by rule promulgate as an

occupational safety or health standard any national

consensus standard, and any established Federal

standard, unless he determines that the promulga-

tion of such a standar¢ would not result in improved

safety or health for specifically designated employees.

In the event of conflict among any such standards,

the Secretary shall promulgate the standard which

assures the greatest protection of the safety or health

of the affected employees.

(b) Procedure for promulgation, modification, or re-

vocation of standards

The Secretary may by rule promulgate, modify,

or revoke any occupational safety or health standard

in the following manner:

(5) The Secretary, in promulgating standards

dealing with toxic materials or harmful physical

agents under this subsection, shall set the standard

which most adequately assures, to the extent feas-

ible, 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.

Development of standards under this subsection shall

be based upon research, 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. Whenever practicable,

the standard promulgated shall be expressed in terms

of objective criteria and of the performance desired.

(f) Judicial review

Any person who may be adversely affected by a

standard issued under this section may at any time

prior to the sixtieth day after such standard is

promulgated 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 his principal place of business, for a judicial

review of such standard. A copy of the petition shall

be forthwith transmitted by the clerk of the court to

the Secretary. The filing of such petition shall not,

unless otherwise ordered by the court, operate as a

stay of the standard. The determinations of the

Secretary shall be conclusive if supported by sub-

stantial evidence in the record considered as a whole.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.