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

No. 79-1429

porecamaene eemmcaned

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

AMERICAN TEXTILE MANUFACTURERS

INSTITUTE, INC., ef ai.,

Petitioners,

Vv.

Ray MARSHALL, SECRETARY OF LABOR,

Respondent.

On Writ Of Certiorari To The United States Court

Of Appeals For The District Of Columbia Circuit

BRIEF OF THE BUNKER HILL COMPANY AS

AMICUS CURIAE

EpwINn H. SEEGER

Counsel of Record

PRATHER SEEGER

DOooLITTLE & FARMER

1101 Sixteenth St., N.W.

Washington, D.C. 20036

202-296-0500

WILLIAM F. Boyp

BROWN, PEACOCK, KEANE

& Boyp

P.O. Box 659

Kellogg, Idaho 83837

208-784-1105

Attorneys for The Bunker

Hill Company

November 20, 1980

£ PORTE et aiheel

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

TABLE OF CONTENTS

PAGE

PeevmmmstT Or AMICUS CURIAE........00.cccccccccesess ]

nD ee ie a odo tae 0 ew aude eS eee le ee en 3

The Rulings Of The D.C. Circuit In The Cotton

Dust and Lead Cases Are At Odds With The

Occupational Safety And Health Act Because

They Have The Practical Effect Of Freeing

OSHA From The Act’s Requirement That

Health Standards Must Be ‘‘Feasible’’ And

MROORaY TUMCCNNY”” oink oss caw vies oxaes 3

A. The Definition Of ‘‘Feasible’’ Adopted By The

Court Of Appeals In Cotton Dust And Lead

Affords OSHA Excessive Power Not Con-

templated By Congress. .......cscscccvcscuss 4

B. The Decisions Of The Court Of Appeals In The

Cotton Dust And Lead Cases Do Not Impose

Sufficiently Strict Requirements On OSHA As

To The Nature Of The Findings It Must Make

WO meet FA CRED Cec ec cess. ees 5

1. OSHA Must Be Required To Show That

Its Standards Are Economically Feasible. . . 5

2. If Industry Is To Be Forced To Meet

OSHA’s Standards Through Engineering

Controls, OSHA Must Be Required To

Show That Such Controls Are Available. . . 8

3. The Cotton Dust and Lead Decisions Are

In Error In Not Requiring OSHA To

Weigh Costs And Benefits............... 10

Fee rere 1]

ii

TABLE OF AUTHORITIES

CASES: PAGE

ASARCO Inc. v. OSHA (9th Cir. No. 78-1959, decision

RR a eget are a ee eae ere ere

Bunker Hill Co. v. EPA, 572 F.2d 1286 (9th Cir. 1977) . 9

Essex Chemical Corp. v. Ruckelshaus, 486 F.2d 427

(D.C. Cir. 1973), cert. denied, 416 U.S. 969 (1974) . )

Industrial Union Dep’t v. American Petroleum Institute,

Se ee ee OO oc aS sa Dake wu ees ieee yA

Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375

(D.C. Cir. 1973), cert. denied, 417 U.S. 921 (1974) . )

Texas Independent Ginners Ass’n v. Marshall,

ye (Sth Cir. No. 78-2633, November 14,

PD is o' 854 Ce a Ee REESE EL od ROR RA we oR 10-11

United Steelworkers of America v. Marshall, —

F.2d _ ss (D.C. Cir. No. 79-1048, August 15,

EAR ee Fee ee 2, 3, 4; 3: 6, 1h Be OD 20, 11

STATUTES:

Occupational Safety and Health Act of 1970...........

ge eR ott a ae

EL ED nn c Ciwna-Pos.rG dsc evesues

PP 2 ge cu has eld wh wien wie-o0c86 San eka

oOo Ow WwW W

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No. 79-1429

AMERICAN TEXTILE MANUFACTURERS

INSTITUTE, INC., ef al.,

Petitioners,

Vv.

RAY MARSHALL, SECRETARY OF LABOR,

Respondent.

On Writ Of Certiorari To The United States Court

Of Appeals For The District Of Columbia Circuit

BRIEF OF THE BUNKER HILL COMPANY AS

AMICUS CURIAE

The Bunker Hill Company respectfully tenders this

brief as amicus curiae for consideration by the Court.

Bunker Hill supports the position presented by the

American Textile Manufacturers Institute, Inc., and the

other petitioners, and urges the Court to reverse the deci-

sion of the United States Court of Appeals for the

District of Columbia Circuit in this case.

INTEREST OF AMICUS CURIAE

The Bunker Hill Company operates a large primary

lead and zinc smelting complex in Kellogg, Idaho, and is

one of the Nation’s leading producers of those metals.

The Company is thereby subject to the full range of

safety and health regulations promulgated under the Oc-

cupational Safety and Health Act of 1970, 29 U.S.C.

§§651 et seq.

2

Bunker Hill accordingly has a direct interest in the

outcome of this case in which the Court will consider

OSHA’s cotton dust standard and will rule for the first

time on the provisions of the Act which state that

OSHA’s health standards must be ‘‘feasible.’’ Quite

apart from the general interest it has in such a ruling as

a company regulated under the Act, Bunker Hill has an

iminediate interesi by virtue of the fact that it is a party

to two cases involving OSHA health standards: ASAR-

CO Inc. v. OSHA (9th Cir. No. 78-1959, decision pen-

ding), and United Steelworkers of America v. Marshall,

F.2d (D.C. Cir. No. 79-1048, August 15,

1980).

In the latter case, which we will refer to as ‘‘the

Lead case,’’ the court of appeals sustained an OSHA

regulation imposing extremely costly medical removal

provisions on primary lead smelters and other lead pro-

ducing and consuming industries and requiring them to

meet stringent limitations on in-plant airborne lead con-

centrations despite the fact that OSHA had made no

estimate of the economic impact of these requirements

and was unable to point to any technology that would

enable primary lead smelters to meet the limitations im-

posed by the regulation. The Court will shortly receive

one or more petitions requesting it to review the decision

of the court of appeals on the grounds that it raises im-

portant issues bearing on the meaning of the terms

‘*feasible’’ and ‘‘reasonably necessary’’ in the standard-

setting provisions of the Act that are not raised in the

Cotton Dust case. Hence, consideration of the Lead case

is essential if the Court is to complete its effort to clarify

OSHA’s standard-setting powers which began with the

Benzene case, Industrial Union Dep’t v. American

Petroleum Institute, 100 S.Ct. 2844 (1980), and is contin-

uing with the Cotton Dust case.

3

However, a decision in Cotton Dust will likely be

forthcoming before the Court has an opportunity to con-

sider the Lead case, and this brief is therefore designed

to make the Court aware of the interrelationship be-

tween the two cases so that any ruling in Cotton Dust

stating what OSHA has to do to comply with the

feasibility and reasonable necessity requirements of the

Act will be drawn with the Lead case in mind.

ARGUMENT

The Rulings Of The D.C. Circuit In The Cotton

Dust And Lead Cases Are At Odds With The Occupa-

tional Safety And Health Act Because They Have The

Practical Effect Of Freeing OSHA From The Act’s Re-

quirement That Health Standards Must Be ‘‘Feasible’’

And ‘‘Reasonably Necessary.”’

In the Benzene case, the Court struck down

OSHA’s standard stating that ‘‘it is unreasonable to

assume that Congress intended to give the Secretary [of

Labor] the unprecedented power over American industry

that would result from the Government’s view of §§3(8)

and 6(b)(5)’’ of the Occupational Safety and Health Act,

100 S.Ct. at 2865. The Court was referring in that case

to the Government’s view that OSHA did not have to

find that a significant risk of harm to health existed

before imposing a new health standard. The Govern-

ment’s view of OSHA’s powers under those same sec-

tions of the Act where issues of feasibility and the rela-

tionship of costs to benefits are concerned is similarly

much too expansive, and it is clear that OSHA, its

reviewing courts and persons subject to its regulations

need from the Court not only a definition of the term

“‘feasible’’ as it appears in the Act but also precise

guidelines as to what findings OSHA has to make in

order to support its conclusion that a given standard is

feasible and reasonably necessary.

A. The Definition Of ‘‘Feasible’’ Adopted By The

Court Of Appeals In Cotton Dust And Lead

Affords OSHA Excessive Power Not Con-

templated By Congress.

The court of appeals panel that heard Cotton Dust

held that a standard is feasible even if it forces an in-

determinate number of employers out of business, 617

F.2d at 655. In Lead, which was decided on a two-to-

One vote, the panel majority held that a standard is

feasible as long as it does not threaten ‘‘massive disloca-

tion’’ to or ‘‘imperil’’ the affected industry (slip op., pp.

143-44). Hence, both decisions would permit OSHA to

put a number of companies out of business provided the

number fell short of massive dislocation and did not

mean that the entire industry was imperiled. We submit

that to interpret ‘‘feasible’’ to mean feasible for some

but not for others, and to read the term as allowing

OSHA to shut down any number of companies as long

as the total number is not ‘‘massive,’’ renders the term

meaningless.

Bunker Hill urges the Court to hold that there is no

basis for concluding that when Congress stated that stan-

dards must be ‘‘feasible’’ it meant feasible only for

some, and that OSHA may only adopt a standard if the

Agency is able to show that, with at most rare exception,

the standard can be achieved by the companies subject

to it.

5

B. The Decisions Of The Court Of Appeals In The

Cotton Dust And Lead Cases Do Not Impose

Sufficiently Strict Requirements On OSHA As

To The Nature Of The Findings It Must Make

To Support A Standard.

Much of industry’s opposition to OSHA’s new

health standards stems from the fact that, as in the Cot-

ton Dust and Lead cases, OSHA’s standards are

designed to protect workers from biological responses or

subclinical effects that have not been shown to be harm-

ful to health and OSHA has determined as a matter of

policy, and without examining how the costs and

benefits of that policy compare with alternative ap-

proaches, that these standards must be met through ex-

tremely costly engineering controls and work practices

such as job rotation rather than by far less expensive

devices such as respirators and medical surveillance.

While we urge that OSHA’s approach is improper in any

event, the problem is compounded by the fact that

OSHA has not only chosen to impose complex and cost-

ly technological and work practice requirements on in-

dustry, but pays mere lip-service to the requirement that

it make findings, based on ‘‘substantial evidence,’’

demonstrating that such requirements are feasible. As we

will show below, the decisions of the court of appeals in

the Cotton Dust and Lead cases are in error in failing to

enforce the requirement that such findings be made.

1. OSHA Must Be Required To Show That

Its Standards Are Economically Feasible.

The Cotton Dust and Lead decisions permit OSHA

to determine that a standard is ‘‘feasible’’ based on the

most cursory examination of its economic impact and

without consideration of the cumulative economic impact

6

of other standards. Indeed, the panel majority’s decision

in the Lead case would permit OSHA to adopt a stan-

dard without making any estimate of the cost of comply-

ing with it.

Thus, although OSHA anticipated that it would

take ten years for primary lead smelters to install the

controls OSHA believed would reduce worker blood lead

concentrations to what the Agency considered acceptable

levels, and that it would take other segments of the lead

industry as long as five years to do so, OSHA required

the entire industry to institute at once a medical removal

program whereby workers with blood lead levels deemed

excessively high by the Agency are removed from the

workplace and guaranteed full pay and seniority. Yet,

OSHA at no time calculated the cost of such a program,

and there is not a word in the panel majority’s opinion

responding to industry’s objections to that omission.

Moreover, no estimate was made by OSHA of the

cost of rebuilding plants to install the new technology

OSHA believed would enable companies to meet the

standard, though the standard contemplates that industry

would have to install new processes and hence rebuild its

plants to meet the standard (slip op., pp. 172-74).' That

Omission was condoned by the panel majority on the

ground that ‘‘[OSHA’s] need to force experimental

technology and to leave the choice of means to industry

makes such a goal [developing cost estimates] quixotic’”’

(slip op., p. 166).

' The panel majority’s decision discusses at some length OSHA’s

estimates of the cost of a much less stringent standard that OSHA

originally considered and then abandoned. The discussion sheds no

light on the feasibility of the standard OSHA ultimately adopted

which the panel majority concedes ‘‘greatly increases the number of

employees affected ... as well as the ... economic and

technological demands on industry”’ (slip op., pp. 46-47).

Ultimately, the panel majority employed the same

survival test that the panel in Cotton Dust did and con-

cluded that no showing had been made that the affected

industries ‘‘could not afford these costs’’ (slip op., p.

166). Elsewhere, the decision of the panel majority sug-

gests that OSHA’s procedures and rules afford com-

panies potential relief from standards that prove infeasi-

ble. These procedures and rules include variances, the

opportunity to use respiratory protection to meet a stan-

dard where engineering controls prove infeasible, and the

availability of preenforcement review to test feasibility in

the courts — all of which, the panel majority concluded,

“*greatly ease OSHA’s preliminary burden in proving

feasibility’’ (slip op., p. 162).

Bunker Hill submits that the requirement of the Act

that standards must be feasible and that OSHA’s deter-

minations must be based on substantial evidence lose

their effect when economic feasibility is equated with

mere survival, as the decisions in the Cotton Dust and

Lead cases do, and when the requirements of an OSHA

regulation are determined to be economically feasible in

the absence of any estimate of their costs or any analysis

of the impact of those and other environmental costs on

the affected industry. Moreover, nothing in the statute

suggests that Congress intended that OSHA would be

free, as the panel majority in the Lead case suggests, to

conclude that the requirements of a health regulation are

feasible in the absence of evidence of their economic im-

pact, and to leave more careful assessments of feasibility

to some future enforcement or variance proceedings.

Indeed, what is urgently required from the Court is

a ruling that in order to meet the feasibility and substan-

tial evidence tests imposed by the statute, OSHA must

produce financial projections demonstrating that the

8

requirements of the standard, when taken together with

other regulatory demands on the affected industry, will

not weaken its competitive position.

2. If Industry Is To Be Forced To Meet

OSHA’s Standards Through Engineering

Controls, OSHA Must Be Required To

Show That Such Controls Are Available.

OSHA’s indifference to questions of economic

feasibility is accompanied by an inclination to impose

technological requirements without finding they can be

met. Thus, in the Lead case, OSHA was unable to point

to any technology that would enable primary lead

smelters to meet its lead standard, and instead afforded

the industry ten years in which to develop technology

capable of meeting the standard.

The majority decision in the Lead case upheld this

approach on the ground that ‘‘American industry is

capable of reaching virtually any low air-lead level at

which it aims,’’ and that ‘‘newly conceived experimental

technology for primary smelters, most notably a new

hydrometallurgical method of recovering lead from

galena concentrate,’’ though only ‘‘developed on the

laboratory scale,’’ held ‘‘great promise’’ that the stan-

dard could be met within ten years (slip op., p. 174).

There is no basis in the Act or in common sense for

the concept that a standard is technologically feasible as

long as industry is given enough time to develop the

technology and there is at least the prospect that by then

new extraction processes — that have yet to prove

workable much iess economically competitive — may be

developed. Moreover, the majority’s interpretation of

what is meant by technological feasibility is in conflict

with other judicial interpretations of that term. Thus, in

9

Bunker Hil! Co. v. EPA, 572 F.2d 1286 (9th Cir. 1977),

the court overturned a regulation imposing on the Com-

pany emission limitations that EPA conceded could not

be met with existing technology but might be met by

employing a so-called sulfur burner. The court held that

the record

**merely establishes that [the] sulfur burner proposal

might work. As we noted above, this is not enough.

The record must establish that the required

technology is feasible, not merely possibly feasible.

Approval of EPA’s standards on the basis of this

record would seriously risk closing down a major

smelting operation on the strength of a showing that

does no more than demonstrate that the technology

on which EPA relies is only ‘theoretical or ex-

perimental’ ’’ ($572 F.2d at 1301).

Decisions under Section 111 of the Clean Air Act, 42

U.S.C. §7411, which has to do with the establishment of

performance standards for entirely new sources, place

similar restraints on administrative guesswork. See

Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375,

391 (D.C. Cir. 1973), cert. denied, 417 U.S. 921 (1974)

(‘‘ ‘film order to be considered ‘‘available’’ the

technology may not be one which constitutes a purely

theoretical or experimental means of preventing or con-

trolling air pollution’ ’’); Essex Chemical Corp. v.

Ruckelshaus, 486 F.2d 427, 433 (D.C. Cir. 1973), cert.

denied, 416 U.S. 969 (1974) (in order to be considered

‘*available’’ technology, the system must be one ‘‘which

has been shown to be reasonably reliable, reasonably

efficient’’).

While the cited cases arose under the Clean Air Act,

they involve the setting of standards limiting airborne

concentrations of a pollutant just as the Cotton Dust

and Lead cases do, and hence the statements of the

10

reviewing courts requiring EPA to base standards on

demonstrated technology are directly in point. Bunker

Hill would urge the Court to articulate a similar rule

directing OSHA to base its standards on technology that

has been demonstrated to be workable and economic.

3. The Cotton Dust And Lead Decisions Are

In Error In Not Requiring OSHA To

Weigh Costs And Benefits.

As we have pointed out above, OSHA has refused

to analyze the relative costs and benefits of alternative

approaches to meeting health goals. The Cotton Dust

panel sustained OSHA’s position, holding, for example,

that OSHA’s rejection of respirator protection as a

means of protecting workers was proper since it was

based on sound ‘‘policy considerations,’’ 617 F.2d at

653. Likewise, the panel majority in the Lead case not

only was undisturbed by OSHA’s failure to ensure that

the costs of the lead standard bore a reasonable relation-

ship to its benefits, but held that OSHA’s requirement

that inplant airborne lead concentrations not exceed a

specified level was ‘‘reasonably necessary’’ even though

there was no evidence of ‘‘the actual incidence of signifi-

cant health effects at the old and new [permissible air

lead concentrations]’’ (slip op., p. 110).

Bunker Hill urges that Mr. Justice Powell was cor-

rect when he stated in his concurring opinion in the

Benzene case that ‘‘the statute requires the Agency to

determine that the economic effects of its standard bear

a reasonable relationship to the expected benefits’’ and

that a standard cannot be considered ‘‘reasonably

necessary’’ if the standard ‘‘calls for expenditures wholly

disproportionate to the expected health and safety

benefits,’ 100 S.Ct. at 2877. See also Texas Independent

11

Ginners Ass’n v. Marshall, F.2d Pe Ef

No 78-2663, November 14, 1980).

The requirement that relative costs and benefits be

assessed is particularly urgent in the Cotton Dust and

Lead cases where OSHA’s standards were set at extreme-

ly low levels to protect workers from subclinical effects

or biological responses where there is no clear evidence

of significant risk. See Cotton Dust, 617 F.2d at 654-55;

Lead, slip op. at 115 (‘there . . . OSHA is acting to pre-

vent, not overt early symptoms of a disease, but

subclinical effects’’); id. at 128 (‘SOSHA’s case ...

ultimately rests on its theory of subclinical effects’’).

CONCLUSION

In the Cotton Dust and Lead cases, the court of

appeals has for all practical purposes supported OSHA’s

view that the establishment of health standards is a

discretionary act, and that the Agency is free to impose

extremely stringent standards designed to protect workers

from health effects not shown to be serious without

determining how industry will meet the standards, what

it will cost industry to do so or whether there are not

more efficient and less expensive ways of ensuring the

protection of worker health. Had Congress intended the

Agency to have that freedom, it would not have included

in the statute the requirement that standards be ‘‘feasi-

ble’’ and ‘‘reasonably necessary’’ and that OSHA’s find-

ings in support of a standard be based on ‘‘substantial

12

evidence.’’ It is essential that the Court reinforce these

limitations on OSHA’s powers.

November 20, 1980

Respectfully submitted,

Epwin H. SEEGER

WILLIAM F. Boyp

Attorneys for The Bunker

Hill Company