Petition — Cotton Warehouse Ass'n v. Marshall

Supreme Court brief1980

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| MICHAEL RODAK, JR., CLERR

IN THE

Supreme Court of the United States

OcToBER TERM, 1979

49-1789

No. ——

CoTTON WAREHOUSE ASSOCIATION and

AMERICAN COTTON SHIPPERS ASSOCIATION,

Petitioners,

Ray MARSHALL, SECRETARY OF LABOR, e¢ al,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

NEAL P. GILLEN CarL W. Voat

KeitH A. JONES

sta N.W. Joyce E. REBACK

Washington, D.C. 20007 FuLpricut & JAWORSKI

1150 Connecticut Ave., N.W.

Counsel for the Suite 400 ,

American Cotton Washington, D.C. 20036

Shippers Association

Counsel for the Cotton

Warehouse Association

Press oF Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

TABLE OF CONTENTS

Page

ee a

DS ee ere Ee te ed ne er 1

Ce a ie wt kk eG ace ak owes 2

RNID. WME eink sine ee ee uidtet seceeuns es 2

Statutory Provisions INVOLVED ...........eeeeeeees 3

RPUUIOMNE OF TIE CAR cnc ccc cnc cccacccccasacaces 4

Reasons For GrantinGc Tuts PETITION .............. 9

I et are Ce Ware al wal ad's b Ane ees Ree hoe 16

Appenpix A, Opinion of the United States Court of

Appeals for the District of Columbia Circuit,

I RE es ca 44 ao ow la

Appenpix B, Judgment of the United States Court of

Appeals for the District of Columbia Circuit,

oe ae ae eka ey ak Su yew a 85a

Appenpix C, Order Amending Judgment, January 11,

DENS CG ne ASCE Mowe d aces va Sean Ke sca 86a

Apprenpix D, Order Denying Petitions for Rehearing,

I TE ee Eis ke seins as 88a

ii TABLE OF AUTHORITIES

CaSES: Page

American Iron & Steel Institute v. OSHA, 577 F.2d

825 (3d Cir. 1978), petition for cert. pending,

Now. TO-Oie Ge Wear ia ore in kc cc cc ceee. 9

American Petroleum Institute v. OSHA, 581 F.2d 493

(5th Cir. 1978), cert. granted sub nom. Marshall

v. American Petroleum Institute, 440 U.S. 906

(1979). .5 enna 500s 9, 14, 15, 16

American Textile Manufacturers Institute v. Marshall,

No. 79-1429, petition for cert. filed March 14,

he 15

Certified Color Manufacturers Ass’n v. Mathews, 543

F.2d DBR SE ioe cance cn eee 10

Citizens to Preserve Overton Park v. Volpe, 401 U.S.

408 (ESTED ice ea wince ce ccece. 13

Environmental Defense Fund v. EPA, 598 F.2d 62

(D.C. Gai Beak wa cccc es cece 10

Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir.), cert. de-

ted, 455 Tit Pe ee crak wc sce ccceee 12, 13

Greater Boston Television Corp. v. FCC, 444 F.2d

841 (D.C. Cir. 1970), cert. denied, 403 U.S. 923

(1971) ..... ..cucceueeee Suess sess... 12, 13

Industrial Union Dep’t v. Hodgson, 499 F.2d 467 (D.C.

Cir. 1996)... iweaneees Ee 10

International Harvester Co. v. Ruckelshaus, 478 F.2d

G15 (EG, Ce ee... ......... 12

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

(D.C. Cap: BRM, ............ 12

Society of Plastics Industry, Inc. v. OSHA, 509 F.2d

1301 (2d Cir.), cert. denied, 421 U.S. 992 (1975) ..9, 11

Synthetic Organic Chemical Mfrs. Ass’n v. Brennan,

508 F.2d 1155 (3d Cir. 1974), cert. denied, 420

UB. Dam Gir rc cece cece. 10

Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951) 12

Table of Authorities Continued iii

Statutory Provisions: Page

ee te i eo ee. See 9

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

§§ 651 et seq.

S21 Oe UA SORE) bis w6da nen aweeees 3, 4, 8, 14

§ 6(b) (5), 29 U.S.C. § 655(b) (5) ............ 3, 4, 5, 9

COUT, Se cae SNEED cueer ep caeeedaneeuees 4, 8,12

REGULATIONS:

ek fae Bt Ee re ce Aer eine Fr 5

ok A Gk ae: | ee or rye 5

(Bot of ek Se er rere ery or rr eee 5

OTHER:

REG Gomes. BUR, SIOGG CROSSE 0 65 od. 6c 5 oc re kaeer ses es 11

IN THE

Supreme Court of the United States

OctToBER TERM, 1979

No.

Corton WAREHOUSE ASSOCIATION and

AMERICAN COTTON SHIPPERS ASSOCIATION,

Petitioners,

Ray MARSHALL, SECRETARY OF Labor, eé al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

The Cotton Warehouse Association (‘‘CWA’’) and

the American Cotton Shippers Association (‘‘ACSA’’)

hereby petition for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the District of Columbia Circuit in this case.

OPINION BELOW

The opinion of the Court of Appeals, App. A, infra,

is not yet reported.

JURISDICTION

The judgment of the Court of Appeals was entered

on October 24, 1979, App. B, infra, and amended on

January 11, 1980. App. C, infra, A timely petition for

rehearing, with suggestion for rehearing en banc, was

denied on January 11, 1980. App. D, infra. On April

2, 1980, the Chief Justice extended the time for filing

' the petition for a writ of certiorari to and including

May 10, 1980. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether the Occupational Safety and Health

Administration (‘SOSHA’’) has authority to pre-

scribe occupational health standards in the absence of

any evidence that employees in the affected industries

are subject to material impairment of health.

2. Whether a court of appeals adequately fulfills its

statutory responsibility of determining whether

OSHA’s findings are supported by substantial evi-

dence in the record considered as a whole when it de-

clines to review the evidence, including the medical evi-

dence, and instead considers only OSHA’s articulation

of its conclusions.

3. Whether OSHA has authority to prescribe oc-

cupational health standards without first finding, on

the basis of substantial evidence, that such standards

would benefit the employees at the affected workplaces.

STATUTORY PROVISIONS INVOLVED

Section 3(8) of the Occupational Safety and Health

Act of 1970, 29 U.S.C. § 652(8), provides:

The term occupational safety and health stand-

ard means a standard which requires conditions,

or the adoption or use of one or more practices,

means, methods, operations, or processes reason-

ably necessary or appropriate to provide safe or

healthful employment and places of employment.

Section 6(b)(5) of the Act, 29 U.S.C. § 655(b) (5),

provides:

The Secretary, in promulgating standards deal-

ing with toxic materials or harmful physical

agents under this subsection, shall set the stand-

ard which most adequately assures, to the extent

feasible, on the basis of the best available evi-

dence, that no employee will suffer material im-

pairment of health or functional capacity even if

such employee has regular exposure to the hazard

dealt with by such standard for the period of his

working life. Development of standards under this

subsection shall be based upon research, demon-

strations, experiments, and such other information

as may be appropriate. In addition to the attain-

ment 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 ex»eri-

ence gained under this and other health and safety

laws. Whenever practicable, the standard promul-

gated shall be expressed in terms of objective

criteria and of the performance desired.

Section 6(f) of the Act, 29 U.S.C. § 655(f), provides

in pertinent part:

The determinations of the Secretary shall be

conclusive if supported by substantial evidence in

the record considered as a whole.

STATEMENT OF THE CASE

Section 3(8) of the Occupational Safety and Health

Act, 29 U.S.C. § 652(8), authorizes the Secretary of

Labor, acting through the Occupational Safety and

Health Administration (‘‘OSHA’’), to prescribe oc-

cupational safety and health standards ‘‘reasonably

necessary or appropriate to provide safe or healthful

employment and places of employment.’’ Section 6(b)

(5) of the Act, 29 U.S.C. § 655(b) (5), however, con-

templates that this authority shaJl be exercised solely

for the purpose of protecting against ‘‘material im-

pairment of health or functional capacity.’’ Under sece-

tion 6(f) of the Act, 29 U.S.C. § 655(f), the imposition

of occupational safety and health standards will be

upheld only if ‘‘supported by substantial evidence in

the record considered as a whole.”’

In 1978, OSHA prescribed a comprehensive health

standard governing occupational exposure to cotton

dust. See 43 Fed. Reg. 27350 (June 23, 1978), as

amended, 43 Fed. Reg. 28473 (June 30, 1978), 43 Fed.

Reg. 35032 (August 8, 1978), 43 Fed. Reg. 56892 (De-

ecember 5, 1978). The standard was promulgated in

order to reduce the prevalence of byssinosis, a respira-

tory condition that, according to studies of workers in

the textile industry, see 43 Fed. Reg. at 27352-54, has

been associated with exposure to dust generated by

textile manufacturing processes. Application of the

standard, however, is not limited solely to the textile

industry. The standard is also made applicable to a

variety of other industries, including cotton ware-

houses and cotton classing offices, that are engaged in

the handling of cotton. 43 Fed. Reg. at 27381.’ This

is so even though byssinosis has never been cocumented

or diagnosed in any form among workers in cotton

warehouses or cotton classing offices.

The standard imposes, tnter alia, maximum permis-

sible exposure lim‘ts (‘‘PEL’s’’) for the amount of

dust that may be present in the workroom. For the

textile industry, OSHA prescribed a PEL of 200

micrograms of lint-free ‘‘respirable cotton dust’’ per

eubie meter of air in ‘‘yarn manufacturing”’’ and of

750 micrograms in ‘‘slashing and weaving”’ operations.

29 C.F.R. § 1910.1043(¢)(1), (2). For the affected

industries other than the textile industry, OSHA pre-

scribed a PEL of 500 micrograms per cubie meter of

air. 29 C.F.R. § 1910.10438(¢) (3).

OSHA broadly defined ‘‘cotton dust’’ to inelude ‘‘all

dust present wherever cotton fibers or cotton by-prod-

ucts are processed.’’ 29 C.F.R. § 1910.1043(b). One rea-

son given by OSHA for this all-inclusive definition is

that the precise agent causing byssinosis is unknown.

43 Fed. Reg. 27354; App. A, infra, at 6la. A prime sus-

pect, however, is the plant and leaf debris that adheres

to cotton lint during harvesting and ginning. See, e.g.,

Morey & Wakelyn, ‘‘ Plant Trash in Linters and Wil-

* OSHA treated all of the various and diverse cotton-related

industries other than textile manufacturing as a single entity for

purposes of compliance with the standard. The record reveals,

however, that each of the so-called ‘‘non-textile’’ industries oper-

ates in a unique manner and may produce dust, if at all, of dif-

ferent chemical compositions. See 43 Fed. Reg. at 27360-61, 27367-

69. OSHA ignored these distinctions entirely, and imposed a

uniform standard for all such workplaces.

lowed Pickers,’’ 37 Am. Ind. Hyg. Ass’n J. 413-417

(1976), Ex. 75f. A comparison of the dusts present in

various workplaces reveals that textile cardrooms—in

which byssinosis has been documented—produce dust

which is relatively high in plant material, while the

dust in warehouses and classing offices is low in plant

content.’

Dust in warehouses and classing offices is likely to

be far less respirable than dust in textile mills. Respir-

able dust is created when plant particles are pulver-

ized into smaller particles by high-speed manufactur-

ing operations, such as those in textile mills. The less

pulverizing the mechanical operations, the larger and

less respirable are the particles. There are no pulver-

izing operations in cotton warehouses or classing of-

fices. Accordingly, the dust present therein contains

large and, for the most part, nonrespirable particles.°

Reflecting these differences between warehouses and

classing offices, on the one hand, and textile mills, on

the other, the rulemaking record before OSHA con-

tained no evidence of a material health impairment

among workers in warehouses and classing offices. To

* Approximately 25% of the total dust in textile cardrooms is

composed of plant debris, compared to only 10.5% to 16.7% of the

total dust in warehouses. Statement of Phillip J. Wakelyn, Ph.D.,

Ex. 95b at 15, Table 6 (‘‘ Wakelyn’’), J.A. 2949-74. (‘‘J.A.’’ refers

to the joint appendix filed with the court of appeals.) Warehouse

dust is composed primarily of minerals and fibers, id. at 14-21,

J.A. 2963-70; classing room dust is composed primarily of cellu-

Jose and contains very little plant or soil-borne elements. Brown

et al., ‘‘Chemical Composition of Dust Generated During Cotton

Processing,’’ Proceedings of the 1977 Beltwide Cotton Production

Research Conference, Ex. 72b at 55.

* Wakelyn at 8-11, J.A. 2957-60; Statement of Earle M. Billings,

Ex. 112, J.A. 3131-25.

the contrary, the only medical evidence consisted of a

study involving only one warehouse, and even this did

not support OSHA’s conclusion that warehouse work-

ers are subject to any material impairment of health—

let alone byssinosis.* There is absolutely no evidence in

the record regarding the health of classing office

workers.

After promulgation of the standard, CWA and

ACSA sought judicial review in the United States

Court of Appeals for the District of Columbia and

Sixth Circuit respectively. These petitions were con-

solidated with others in the District of Columbia Cir-

cuit. Petitioner CWA is the national trade association

representing cotton warehouses; petitioner ACSA is

the trade association representing cotton classing of-

fices. CWA and ACSA opposed application of the

standard to their respective industries.

On review, the court of appeals held that OSHA

may promulgate a standard even if the affected work-

ers have not been shown to suffer from a ‘‘material

impairment of health or functional capacity’’ within

the meaning of section 6(b)(5) of the Act. The court

determined that OSHA need only decide that workers

are subject to a ‘‘risk’’ of becoming materially im-

paired in order to justify industry-wide imposition of

comprehensive health standards. App. A, infra, at

34a-35a, 63a. The court further ruled that OSHA need

not prove the existence of a hazard in each regulated

workplace or even in each regulated industry; it suf-

fices if OSHA merely infers the existence of a ‘‘risk”’

* Statement of Martin L. Barman, M.D., Ex. 56, J.A. 2174-88.

on the basis of data extrapolated from unrelated in-

dustries. Jd. at 61a-62a.

In addition, the court held that, in reviewing the

lawfulness of an occupational safety and health stand-

ard, it need not ‘‘resolve controversies over technical

data,’’ td. at 27a, but is required only to verify that

OSHA conducted a hearing and posited some explana-

tion for its conclusions. Id. at 64a. Thus, the court left

solely to OSHA the responsibility for policing the re-

quirement of section 6(f) of the Act that the findings

underlying an occupational safety and health standard

be ‘supported by substantial evidence in the record

considered as a whole.”’

Finally, the court held that OSHA need not conduct

an analysis of the relationship of the projected eco-

nomie costs to the anticipated health benefits of an

occupational safety and health standard, id. at 56a,

but instead is required only to establish the economic

and technological feasibility of the standard. Jd. at

d6a, 67a.” The court apparently believed that even if

OSHA only alleges that a benefit can be anticipated,

the standard is ‘‘reasonably necessary or appropriate”’

within the meaning of section 3(8) of the Act, regard-

less of the costs of compliance.

°The other ‘‘non-textile’’ petitioner in this proceeding is the

National Cottonseed Products Association, the national trade as-

sociation for cottonseed oil mills. With respect to this petitioner,

the court of appeals found that OSHA’s position on economic

feasibility was ‘‘neither clear nor adequately supported by the

record,’’ App. A, infra, at 69a, and remanded to the agency for

supplementation or clarification. Jd. at 84a.

REASONS FOR GRANTING THIS PETITION

The court of appeals, without undertaking an inde-

pendent review of the rulemaking record, has en-

dorsed OSHA’s regulation of industries whose work-

ers have not been shown to suffer any material impair-

ment of health and has sustained the imposition of

occupational health standards that have not been shown

to produce any benefits. Since review of all OSHA

standards may be had in the court below, the court’s

decision, if permitted to stand, will form the basis of

and justify an aggressive expansion of OSHA’s au-

thority, far beyond the carefully tailored limits pre-

scribed by Congress. Moreover, in essential respects

the decision below conflicts with the decision of the

Fifth Cireuit in American Petroleum Instttute v.

OSHA, 581 F.2d 493 (5th Cir. 1978), cert. granted sub

nom. Marshall v. American Petroleum Institute, 440

U.S. 906 (1979). This case therefore warrants review

on certiorari.

1. Section 6(b)(5) of the Occupational Safety and

Health Act, 29 U.S.C. }655(b)(5), provides that

OSHA’s novel power to prescribe industry-wide oc-

cupational safety and health standards shall be exer-

cised for the purpose of protecting against ‘‘material

impairment of health or functional capacity.”’ In prior

eases the validity of an OSHA health standard was

premised upon a determination that, in the absence of

the protection afforded by the standard, the affected

workers would be subject to ‘‘material’’ health impair-

ment. See, e.g., American Tron & Steel Institute v.

OSHA, 577 F.2d 525 (3d Cir. 1978), petition for cert.

pending, Nos. 79-918 and 79-919; Society of Plastics

Industry, Inc. v. OSHA, 509 F.2d 1301 (2d Cir.),

cert. denied, 421 U.S. 992 (1975); Industrial Union

Dep't v. Ilodgson, 499 F.2d 467 (D.C. Cir. 1974).

In this case, however, the court of appeals departed

from this settled understanding of the Act. The court

held not just that OSHA need not establish the fact of

material health impairment, but even that the agency

is not required to demonstrate that affected workers

are suffering from any adverse symptoms. App. A,

infra, at 34a-35a. The court ruled instead that OSHA

is empowered to regulate merely upon its speculation

that workers may face a ‘‘risk’’ of illness. Jd. at 63a.

Thus, the court affirmed the application of OSHA’s

cotton dust standard to warehouses and classing of-

fices, notwithstanding the absence of medical evidence

indicating the existence of material health hazards in

warehouses and the absence of any medical evidence

at all with respect to classing offices.

The court reached this extraordinary result by un-

critically approving OSHA’s reliance on data extra-

polated from the domestic textile industry and from

equally unrelated foreign ‘‘non-textile’’ industries.

App. A, infra, at 6la-62a. While extrapolation may be

justified in some instances,’ it is plainly improper

where, as here, there is no substantial similarity be-

*Sce Synthetic Organic Chemical Mfrs. Ass’n v. Brennan, 503

F.2d 1155 (3d Cir. 1974), cert. denied, 420 U.S. 973 (1975), where

the Third Circuit approved OSHA’s extrapolation of data from

animal studies to establish that a substance caused cancer in hu-

mans. 503 F.2d at 1159. In the case of cancer, however, courts have

recognized the need for action ‘‘based upon lower standards of

proof than otherwise applicable.’’ Certified Color Mfrs. Ass’n

v. Mathews, 543 F.2d 284, 297-98 (D.C. Cir, 1976). See also

Environmental Defense Fund v. EPA, 598 F.2d 62 (D.C. Cir.

1978). No one has alleged that the dust found in warehouses or

classing offices causes cancer.

tween the industries at issue and those for which data

is available.” Warehouse and classing office workers

may not be exposed to the same chemical substance as

are textile workers; the dust in these workplaces may

not be as respirable as dust in textile operations. See

pp. 5-6, supra. Moreover, if warehouse workers are

indeed subjected even to a ‘‘risk’’ of material hea!th

impairment, surely some of them would be suffering

from the same diseases as are found among textile

workers. But they are not.

The decision below improperly gives OSHA carte

blanche to regulate whenever it decides that workers

in a particular industry may be subject to a ‘‘risk’’

of material health impairment, even if their demon-

strated state of health evidences no impairment in fact.

Congress did not intend OSHA to possess such undis-

ciplined power to intrude into the workplace. To the

contrary, Congress specifically limited the agency’s

jurisdiction to ‘‘material’’ health impairments, rather

than to ‘‘any’’ such impairments, precisely because

‘*fa}|bsolute safety is an impossibility and it will only

ereate confusion in the administration of this act to

set clearly unattainable goals.’’ 116 Cong. Ree. 37614

(1970) (remarks of Sen. Dominick). The decision be-

low improperly enlarges OSHA’s jurisdiction far be-

yond that contemplated by Congress and therefore

should be reversed.

"In Society of Plastics Industry, Ine. v. OSHA, supra, for

example, the Second Circuit approved OSHA’s extrapolation from

data regarding production workers in applying the vinyl chloride

standard to fabrication workers. 509 F.2d at 1310. The court noted,

inter alia, that two deaths had occurred among fabricators. Jd. In

contrast, OSILA had no evidence that warehouse and classing of-

fice workers are suffering from the same disease as are textile

workers.

2. The court of appeals effectively ignored the re-

quirement of section 6(f) of the Act, 29 U.S.C. § 655

(f), that OSHA standards be supported by ‘‘substan-

tial evidence in the record considered as a whole.’’ In

so doing, the court applied a standard of ~eview that

deviates significantly from the time-honored responsi-

bility of the reviewing court to ensure that a rule or

order is based upon a consideration of all relevant fac-

tors in the record. See, e.g., Universal Camera Corp.

v. NLRB, 340 U.S. 474 (1951).

It is the duty of a reviewing court to scrutinize

the underlying record, no matter how factually com-

plex that record may be, in order to verify the correct-

ness of an agency’s actions. See, e.g., Ethyl Corp. v.

EPA, 541 F.2d 1 (D.C. Cir.), cert. denied, 426 U.S. 941

(1976). International Harvester Co. v. Ruckelshaus,

478 F.2d 615 (D.C. Cir. 1973); Portland Cement

Ass’n v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973) ;

Greater Boston Television Corp. v. FCC, 444 F.2d

841 (D.C. Cir. 1970), cert. denied, 403 U.S. 923 (1971).

In the instant case, however, the court abstained from

any substantive analysis of the record, reasoning that

it suffices if “OSHA .. . explained the evidence it

used, the reasons for its conclusions, and its responses

to the industries’ evidence and objections.’’ App. A,

infra, at 64a.

The court of appeals thereby abandoned the judi-

ciary’s traditional responsibility to guard against ar-

bitrary and capricious administrative action. The cor-

rect approach to this reviewing function is represented

by the court’s earlier decision in Ethyl Corp. v. EPA,

supra. In that ease, the court recognized that ‘‘it must

engage in a ‘substantial inquiry’ into the facts, one

that is ‘searching and eareful.’... This is particularly

true in highly technical cases such as this one.’’ 541

F.2d at 35 (emphasis added), quoting Citizens to Pre-

serve Overton Park v. Volpe, 401 U.S. 402, 415 (1971).

The court further explained:

A court does not depart from its proper function

when it undertakes a study of the record, hope-

fully perceptive, even as to the evidence on tech-

nical and specialized matters, for this enables the

court to penetrate to the underlying decisions of

the agency, to satisfy itself that the agency has

exercised a reasoned discretion, with reasons that

do not deviate from or ignore the ascertainable

legislative intent.

541 F.2d at 35-36, quoting Greater Boston Television

Corp. v. FCC, supra, 444 F.2d at 850. The decision be-

low falls far short of the standard articulated in

Ethyi Corp.

The standard of review applied by the court below

resulted in marked unfairness to cotton warehouses

and classing offices. No medical evidence supported the

imposition of occupational safety and health stand-

ards on those industries. Indeed, the only pertinent

evidence of record, a study of warehouse workers,

found that the workers studied suffered from neither

byssinosis nor work-related chronie respiratory di-

sease. OSHA nevertheless overrode the absence of

supportive evidence with respect to the warehouse and

classing office industries by emphasizing the data per-

taining to the technologically and environmentally

different textile industry. The court of appeals, abjur-

ing close factual analysis, gave its imprimatur to this

administrative sleight-of-hand.

The court’s refusal to engage in substantive review

of the relevant evidence compounds its error in en-

larging the scope of OSHA’s basic authority. Under

the court’s decision, not only may OSHA impose in-

trusive standards whenever it perceives a mere ‘‘risk”’

of health impairment, but the agency need not support

with any probative evidence its finding of such risk.

The decision below therefore opens the door to virtu-

ally unchecked regulation of the nation’s workplaces.

3. The court of appeals held that OSHA need not

determine whether the costs of the standard bear a

‘‘reasonable’’ relationship to its benefits. App. A,

infra, at 53a. This holding squarely conflicts with the

Fifth Cireuit’s decision in American Petroleum In-

stitute v. OSHA, supra. In that ease, OSHA imposed a

standard respecting exposure to benzene without esti-

mating the expected benefits to be achieved. The Fifth

Circuit held that, under section 3(8) of the Act, 29

U.S.C. § 652(8), an OSHA standard must be ‘‘reason-

ably necessary’’ and that, to meet this requirement,

OSHA must have a ‘factual basis’’ for concluding

that ‘‘measurable’’ benefits will inure to workers under

the standard. 581 F.2d at 503-04.

In promulgating the cotton dust standard, OSHA

expressly declined to analyze or estimate the standard’s

benefits for employees in any of the affected indus-

tries, speculating only that they would be ‘‘appreci-

able.’’? 43 Fed. Reg. at 27379. Explicitly disagreeing

with the Fifth Circuit, the court below held that OSHA

need not compare costs versus benefits and therefore

need not estimate the standard’s expected benefits.

App. A, infra, at 67a.

In point of fact, the record contains no evidence

that the standard will result in any benefits for em-

ployees in warehouses and classing offices. What the

record does establish is that, unlike the situation in

the textile industry, neither byssinosis nor chronic

respiratory disease has ever been documented in ware-

houses or classing offices. App. A, infra, at 61a. Since

no probative evidence supports imposition of a stand-

ard on these industries, and since the dust levels in

these workplaces are already within the standard’s

permissible exposure limit, id. at 66a, the standard

will not produce any benefits, much less any ‘‘measur-

able benefits,’’ to warehouse or classing office workers.’

This Court has granted certiorari in American Pe-

troleum Institute and the case has been submitted for

decision. The decision in that case presumably will

resolve the question whether OSHA must make a

‘frough but educated estimate of the extent of benefits

* Although most firms in the cotton warehouse and cotton classing

office industries already comply with the standard’s permissible

exposure limit, imposition of the standard nevertheless subjects

them to substantial burdens. For example, the standard’s an-

nualized non-engineering costs may comprise up to 90% of the

warehouse industry’s after-tax profits. See Market Research Ser-

vice, ‘‘Economie Impact of OSHA’s Proposed Cotton Dust Stand-

ard on Cotton Warehouses,’’ Ex. 95f, J.A. 3019, 3022. Without

significant analysis, the court of appeals concluded that the stand-

ard nevertheless is economically feasible for warehouses and class-

ing offices. App. A, infra, at 67a.

Petitioners in American Textile Manufacturers Institute v.

Marshall, No. 79-1429, petition for cert. filed March 14, 1980, have

requested review, inter alia, of the standard used by the court of

appeals in evaluating economic feasibility under section 6(b) (5)

of the Act, 29 U.S.C. § 655(b) (5). Petitioners herein incorporate

by reference the arguments with respect to economic feasibility

made by petitioners in No. 79-1429.

expected from the standard.”’ 581 F.2d at 504, If this

question is answered in the affirmative, the Court

should vacate the judgment below and instruct the

court of appeals to remand to OSHA so that the

agency can determine whether workers in cotton ware-

houses and classing offices will obtain measurable bene-

fits from enforcement of the cotton dust standard.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

NEAL P. GILLEN Car. W. Voat

KeitH A. JONES

Saige N.W. Joyce E. Repack

Washington, D.C. 20007 Fu Lsricut & JAWORSKI

(202) 296-7116 1150 Connecticut Ave., N.W.

Suite 400 :

Counsel for the Washington, D.C. 20036

American Cotton

Shippers Association (202) 452-6800

Counsel for the Cotton

Warehouse Association

APPENDIX

APPENDIX A

Notice: This opinion is subject to formal revision before publication

in the Federal Reporter or U.S.App.D.C. Reports. Users are requested

to notify the Clerk of any formal errors in order that corrections may be

made before the bound volumes go to press.

United States Cot of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 78-1562

AMERICAN FEDERATION OF LABOR & CONGRESS OF

INDUSTRIAL ORGANIZATIONS, et al., PETITIONERS

RAY MARSHALL, SECRETARY OF LABOR,

UNITED STATES DEPARTMENT OF LABOR, et al.,

RESPONDENTS

No. 78-1736

COTTON WAREHOUSE ASSOCIATION, PETITIONER

RAY MARSHALL, SECRETARY OF LABOR, UNITED STATES

DEPARTMENT OF LABOR, AND EULA BINGHAM, ASSIST-

ANT SECRETARY OF LABOR, U.S. DEPARTMENT OF LABOR

AND OCCUPATIONAL SAFETY AND HEALTH ADMINISTRA-

TION, U.S. DEPARTMENT OF LABOR

Bills of costs must be filed within 14 days after entry of judgment. The

court looks with disfavor upon motions to file bills of costs out of time.

No. 78-1979

AMERICAN TEXTILE MANUFACTURERS INSTITUTE, INC.,

PETITIONER

Vv.

DR. EULA BINGHAM, ASSISTANT SECRETARY OF LABOR,

UNITED STATES DEPARTMENT OF LABOR AND OCCUPA-

TIONAL SAFETY AND HEALTH ADMINISTRATION, UNITED

STATES DEPARTMENT OF LABOR, RESPONDENTS

AMERICAN FEDERATION OF LABOR AND CONGRESS OF IN-

DUSTRIAL ORGANIZATIONS; INDUSTRIAL UNION DEPART-

MENT, AFL-CIO; AND AMALGAMATED CLOTHING AND

TEXTILE WORKERS UNION, AFL-CIO, CLC, INTERVENORS

No. 78-1980

AMERICAN TEXTILE MANUFACTURERS INSTITUTE, INC.,

PETITIONER

Dr. EULA BINGHAM, ASSISTANT SECRETARY OF LABOR,

UNITED STATES DEPARTMENT OF LABOR AND OCCUPA-

TIONAL SAFETY AND HEALTH ADMINISTRATION, UNITED

STATES DEPARTMENT OF LABOR, RESPONDENTS

AFL-CIO, ETC., INTERVENORS

No. 78-1981

AMERICAN TEXTILE MANUFACTURERS INSTITUTE, INC.,

PETITIONER

Vv.

Dr. EULA BINGHAM, ASSISTANT SECRETARY OF LABOR,

UNITED STATES DEPARTMENT OF LABOR AND OCCUPA-

TIONAL SAFETY AND HEALTH ADMINISTRATION, UNITED

STATES DEPARTMENT OF LABOR, RESPONDENTS

AFL-CIO, ETC., INTERVENORS

No. 78-1982

MILLIKEN AND COMPANY, PETITIONER

Vv.

RAY MARSHALL, SECRETARY OF LABOR AND

Dr. EULA BINGHAM, ASSISTANT SECRETARY OF LABOR,

RESPONDENTS

No. 78-1983

ARKWRIGHT MILLS, PETITIONER

Vv.

F. RAY MARSHALL, SECRETARY, DEPARTMENT OF LABOR,

AND EULA BINGHAM, ASSISTANT SECRETARY OF LABOR

FOR OCCUPATIONAL SAFETY AND HEALTH, RESPONDENTS

No. 78-1984

SPARTAN MILLS, PETITIONER

F. RAY MARSHALL, SECRETARY, DEPARTMENT OF LABOR,

AND EULA BINGHAM, ASSISTANT SECRETARY OF LABOR

FOR OCCUPATIONAL SAFETY AND HEALTH, RESPONDENTS

No. 78-1986

BLAIR MILLS, INC., PETITIONER

F. RAY MARSHALL, SECRETARY, DEPARTMENT OF LABOR,

AND EULA BINGHAM, ASSISTANT SECRETARY OF LABOR

FOR OCCUPATIONAL SAFETY AND HEALTH, RESPONDENTS

No. 78-1987

HERMITAGE, INC., PETITIONER

F. RAY MARSHALL, SECRETARY, DEPARTMENT OF LABOR,

AND EULA BINGHAM, ASSISTANT SECRETARY OF LABOR

FOR OCCUPATIONAL SAFETY AND HEALTH, RESPONDENTS

No. 78-1988

DAN RIVER, INC., PETITIONER

Vv.

Dr. EULA BINGHAM, ASSISTANT SECRETARY OF LABOR,

UNITED STATES DEPARTMENT OF LABOR AND OCCUPA-

TIONAL SAFETY AND HEALTH ADMINISTRATION, UNITED

STATES DEPARTMENT OF LABOR, RESPONDENTS

No. 78-1989

CONE MILLS CORPORATION, PETITIONER

RAY MARSHALL, SECRETARY OF LABOR, UNITED STATES

DEPARTMENT OF LABOR, AND EULA BINGHAM, ASSIST-

ANT SECRETARY OF Labor, UNITED STATES DEPART-

MENT OF LABOR AND OCCUPATIONAL SAFETY AND

HEALTH ADMINISTRATION, UNITED STATES DEPART-

MENT OF LABOR, RESPONDENTS

No. 78-1990

MAYFAIR MILLS, PETITIONER

Vv.

F. RAY MARSHALL, SECRETARY, DEPARTMENT OF LABOR,

AND EULA BINGHAM, ASSISTANT SECRETARY OF LABOR

FOR OCCUPATIONAL SAFETY AND HEALTH, RESPONDENTS

No. 78-1991

SPRINGS MILLS, INC., PETITIONER

Vv.

RAY MARSHALL, SECRETARY OF LABOR, UNITED STATES

DEPARTMENT OF LABOR, Dr. EULA BINGHAM, ASSIST-

ANT SECRETARY OF LABOR, UNITED STATES DEPART-

MENT OF LABOR AND OCCUPATIONAL SAFETY AND

HEALTH ADMINISTRATION, UNITED STATES DEPART-

MENT OF LABOR, RESPONDENTS

No. 78-1992

RIEGEL TEXTILE COKPORATION, PETITIONER

RAY MARSHALL, SECRETARY OF LABOR, UNITED STATES

DEPARTMENT OF LABOR, EULA BINGHAM, ASSISTANT

SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF

LABOR, AND THE OCCUPATIONAL SAFETY AND HEALTH

ADMINISTRATION, UNITED STATES DEPARTMENT OF

LABOR, RESPONDENTS

No. 78-1993

FIELDCREST MILLS, INC., PETITIONER

F. RAY MARSHALL, SECRETARY OF LABOR, AND Dr. EULA

BINGHAM, ASSISTANT SECRETARY OF LABOR FOR OC-

CUPATIONAL SAFETY AND HEALTH, AND THE OCCUPA-

TIONAL SAFETY AND HEALTH ADMINISTRATION, UNITED

STATES DEPARTMENT OF LABOR, RESPONDENTS

No. 78-2013

AMERICAN COTTON SHIPPERS ASSOCIATION, PETITIONER

Dr. EULA Bi GHAM, ASSISTANT SECRETARY OF LABOR,

UNITED STATES DEPARTMENT’ OF LABOR, AND OCCUPA-

TIONAL SAFETY AND HEALTH ADMINISTRATION, UNITED

STATES DEPARTMENT OF LABOR, RESPONDENTS

No. 78-2014

NATIONAL COTTONSEED PRODUCTS ASSOCIATION,

PETITIONER

RAY MARSHALL, SECRETARY OF LABOR, UNITED STATES

DEPARTMENT OF LABOR AND EULA BINGHAM, ASSIST-

ANT SECRETARY OF LABOR, UNITED STATES DEPART-

MENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH

ADMINISTRATION, UNITED STATES DEPARTMENT OF

LABOR, RESPONDENTS

No. 78-2016

NATIONAL COTTON COUNCIL OF AMERICA, PETITIONER

Vv.

RAY MARSHALL, SECRETARY OF LABOR, EULA BINGHAM,

ASSISTANT SECRETARY OF LABOR, OCCUPATIONAL SAFETY

AND HEALTH ADMINISTRATION, UNITED STATES DE-

PARTMENT OF LABOR, RESPONDENTS

No. 78-2018

WEST POINT-PEPPERELL, INC., PETITIONER

RAY MARSHALL, SECRETARY OF LABOR AND

EULA BINGHAM, ASSISTANT SECRETARY OF LABOR,

RESPONDENTS

Argued February 14, 1979

Decided October 24, 1979

George H. Cohen with whom Robert M. Weinberg,

Jeremiah A. Collins, David M. Silberman, Laurence Gold,

Judith Kincaid, J. Albert Woll, Elliot Bredhoff and

Arthur M. Goldberg were on the brief, for AFL-CIO,

et al. petitioner in No. 78-1562, and intervenors in Nos.

78-1979, 78-1980 and 78-1981.

Robert E. Payne with whom John S. Battle, Jr.,

Gregory B. Tobin, Edward W. Warren and Arthur F.

Sampson III were on the brief, for petitioners American

Textile Manufacturers Institute, Inc., et al. in Nos. 78-

1562, 78-1979, 78-1980, 78-1981 and 78-1993.

Harlan H. Huntley and Roger L. Tuttle were on the

brief, for petitioner Dan River, Inc. in No. 78-1988.

Robert T. Thompson with whom Gary S. Klein was

on the brief, for petitioner Milliken and Company in

Nos. 78-1982, 78-1986 and 78-1987.

Samuel K. Abrams and Brian E. Moran were on the

brief, for petitioner Cone Mills Corp. in No. 78-1989.

Before BAZELON, Senior Circuit Judge, and TAMM and

ROBINSON, Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge

BAZELON.

BAZELON, Senior Circuit Judge: These consolidated

petitions ' for review challenge a new permanent health

standard limiting occupational exposure to cotton dust,’

‘Which was promulgated by regulation on June 19, 1978

by the Occupational Safety and Health Administration

of the Department of Labor (OSHA), under section 6(b)

(5) of the Occupational Safety and Health Act of 1970

(the Act).* OSHA’s action, which rests on its determi-

nation that occupational exposure to cotton dust pre-

sents a material health hazard to workers, is attacked by

1 Petitions in addition to those on review here, see notes

4-6, infra, were filed by representatives of the cotton waste

processing industries and users of cotton batting: the Na-

tional Association of Bedding Manufacturers (No. 78-1784) ;

the National Association of Furniture Manufacturers (No.

78-1796) ; the Textile Fibers and By-Products Association

(No. 78-1985); the National Cotton Batting Institute (No.

78-2015) ; and, the Wolf Corporation (No. 78-2017). These

petitioners were severed from this case on November 1, 1978,

wher OSHA suspended application of the standard to these

industries. See 43 Fed. Reg. 38087 (1978) ; 44 Fed. Reg. 5438

(1979).

2 Standard for Occupational Exposure to Cotton Dust, 43

Fed. Reg. 27350-99 (June 19, 1978), as amended, 43 Fed. Reg.

28473-74 (June 30, 1978), 43 Fed. Reg. 35032-35 (August 8,

1978), 43 Fed. Reg. 56893-94 (December 5, 1978) [herein-

after “the standard”’].

883 Stat. 1594, 29 U.S.C. § 655(b) (1976). The Secretary

of Labor delegated his authority to promulgate occupational

safety and health standards under 29 U.S.C. § 655 (1976) to

the Assistant Secretary of Labor of Occupational Safety and

Health (“the Secretary”), who is the chief executive officer

of OSHA. References in this opinion to “the Secretary” and

“OSHA” are used interchangeably.

10a

three groups of petitioners: (1) representatives of the

cotton textile industry’ and (2) nontextile industries °

who claim that the standard is unwarranted and in-

feasible; and (8) their employee unions, who attack two

provisions of the standard as too lax, but support the

rest.° These very divergent claims reflect the wide va-

riety of conflicting interests that make OSHA’s task a

difficult one. On direct review,” we uphold the standard

except for its application to the cottonseed oil industry

which we remand for clarification or reconsideration.

To assist a proper understanding of the issues, we dis-

cuss (I) the history and context of the agency’s action;

(II) the nature of our review under the Act; (III) the

*The textile industry petitioners include the American

Textile Manufacturers Institute, Inc. (ATMI) (Nos. 78-1979,

78-1980, and 78-1981) and twelve individual companies en-

gaged in the manufacture of textiles from cotton: Milliken

and Company (No. 78-1982) ; Arkwright Mills (No. 78-1983) ;

Spartan Mills (No. 78-1984) ; Blair Mills, Inc. (No. 78-1986) ;

Hermitage, Inc. (No. 78-1987); Dan River, Inc. (No. 78-

1988) ; Cone Mills Corp. (No. 78-1989) ; Mayfair Mills (No.

78-1990) ; Springs Mills, Inc. (No. 78-1991) ; Riegel Textile

Corp. (No. 78-1992); Fieldcrest Mills, Inc. (No. 78-1993) ;

and West Point-Pepperell, Inc. (No. 78-2018).

5 The non-textile industries are represented by the National

Cottonseed Products Association (No. 78-2014), the Ameri-

can Cotton Shippers Association (No. 78-2013), and the

Cotton Warehouse Association (No. 78-1736). A petition also

was filed on behalf of the entire cotton industry of the Na-

tional Cotton Council of American (NCCA) (No. 78-2016).

*The employee unions are represented by the American

Federation of Labor & Congress of Industrial Organizations

(AFL-CIO), its Industrial Union Department, and their affili-

ate, the Amalgamated Clothing and Textile Workers Union

(the unions) (No. 78-1562).

* The Act permits any person adversely affected by a health

and safety standard to challenge its validity in the courts of

appeals. 29 U.S.C. § 655(f) (1976). 1

lla

claims of the textile industry; (IV) the claims of the

non-textile industries; and (V) challenges to a few tech-

nical provisions of the standard.

I. BACKGROUND

A. Health Risks

Health impairments associated with exposure to cot-

ton dust range from acute but reversible reactions to

irreversible, chronic obstructive pulmonary disease.’ Cot-

ton dust exposure can produce or aggravate respiratory

symptoms characteristic of chronic bronchitis, asthma,

and emphysema.* Further, a specific, debilitating disease

has been conclusively attributed to the effect of cotton

dust on the respiratory passages. This disease, name?

byssinosis, is more commonly known in its chronic stage

as “brown lung disease.” This is the most serious

health hazard for cotton workers.

Although the prevalence of the disease among cotton

workers has been known for centuries," its exact etiology

*43 Fed. Reg. 27352, 37354 (1978).

*41 Fed. Reg. 56500 (1976) ; 43 Fed. Reg. 27352-54 (1978).

tion of respiratory effects.” 43 Fed. Reg. 273853 (1978)

(citations omitted).

In 1705, the Italian Bernardino Ramazzi wrote that

those who hackle in the flax and hemp to prepare it for

being spun and wove, afford frequent instances of the

unwholesomeness of their trade; for there flies out of

this matter a foul mischeivous powder, that entering the

lungs by the mouth and throat, causes continual coughs

and gradually makes way for an asthma... . But in the

long run if they find their affliction grows upon them

they must look out for another trade; for ‘tis a sordid

profit that’s accompanied with the destruction of health.

B. RAMAZZINI, A TREATISE OF THE DISEASES OF TRADESMEN

(London, 1705) (quoted in J. Merchant, Epidemological

12a

is still not completely understood.'? The subjective nature

of many early symptoms* and variations in the com-

position of cotton dust'* have compounded the uncer-

Studies of Respiratory Disease Among Cotton Textile Work-

ers: 1970-1973 at 1 (1973), Joint Appendix (J.A.) (1497).

See also 41 Fed. Reg. 56500 (1976).

2 F.g., 43 Fed. Reg. 273852 (1978); Bouhuys, Breathing

Physiology, Environment and Lung, Disease, 418-25 9, J.A.

288-95.

‘SA major technique for diagnosing byssinosis is to ask

individuals about their symptoms. A. Bouhuys, Byssinosis in

the United States, 14-15, J.A. 230-31; S. Roach & R. Schilling,

A Clinical and Environmental Study of Byssinosis in the

Lancashire Cotton Industry, 17 Brit. J. INDUS. MED. 1-3

(1959), J.A. 201-203. Workers who fear losing their jobs

upon signs of ill-health or whose language facilities impair

their ability to answer questions about their symptoms may

not accurately report their health impairments.

Other workers may experience severe symptoms and yet

not be diagnosed with the disease. Compare, e.g., J.A. 2120

(testimony of Eva Bradshaw) (“Along about 5 or 10 years

before I had to come out of the mill my chest would get so

tight it felt just like an accordian that had closed down, like

it was squeezed shut as tight as it would go. I coughed all

the time, especially at work.”) with J.A. 2057-58 (supple-

mental submission of Harold Imbus of Burlington Industries)

(asserting that physicians did not diagnose Eva Bradshaw

with byssinosis).

‘* The composition of cotton dust varies in different indus-

tries, plants, and stages of manufacturing. NIOSH, Criteria

for a Recommended Standard: Occupational Exposure to

Cotton Dust 86-90 (1974), J.A. 98-102. NIOSH noted that

recent epidemological and expimental evidence suggests that

the substances causing byssinosis is some unknown bio-

logically active material carried with the inorganic dust into

the lungs of exposed workers. Jd. at 96, J.A. at 108. But

NIOSH concluded that insufficient information is available to

support this theory. Jd. accord., J.A. 1216-17 (comments of

A. Bouhuys).

[Continued]

13a

tainties about the actual way in which cotton dust ex-

posure causes serious health impairments.** Nonetheless,

its progressively disabling symptoms are well docu-

mented.’®

Typically, a person suffering from byssinosis is ini-

tially affected by irritated air passages, coughing, breath-

lessness, and chest tightness. These symptoms are often

accompanied by decreased pulmonary functioning, evi-

denced by objective indicators. At first the symptoms

tend to last briefly, and usually remit a few days after

exposure. The symptoms recur, however, whenever an

affected individual returns to a dusty environment.

14 [Continued]

Therefore, OSHA applied its standard to a broad defini-

tion of cotton dust. 43 Fed. Reg. 27354. See id. at 27395, (to

be codified at 29 C.F.R. 1910.1043(b)):

“Cotton dust” means dust present in the air during the

handling or processing of cotton, which may contain

a mixture of many substances, including ground up

plant matter, fiber, bacteria, fungi, soil, pesticides, non-

cotton plant matter and other contaminants which may

have accumulated with the cotton during the growing,

harvesting and subsequent processing or storage periods.

Any dust present during the handling and processing of

cotton through the weaving or knitting of fabrics, and

dust present in other operations or manufacturing

processes using new or waste cotton fibers or cotton fiber

by-products from textile mills are considered cotton

dust.

15 F.g., J.A. 1214 (statement of A. Bouhuys); J.A. 317

(Hygiene Standards for Cotton Dust, British Occupational

Hygiene Society Committee on Hygiene Standards); J.A.

339 (R. Schilling, Byssinosis in Cotton and Other Textile

Workers). See 43 Fed. Reg. 27355 (citing more studies).

*® NIOSH, Criteria for a Recommended Standard: Occupa-

tional Exposure to Cotton Dust 238-86 (1974), J.A. 33-46

(citing studies); R. Nader, The Cotton-Mill Killer, THE

NATION (March 15, 1971), J.A. 2435. The description of the

disease that follows in text relies on these reports.

l4a

As the disease progresses, its symptoms become more

pronounced and painful, resembling the effects of bron-

chitis and asthma. They persist throughout the work

week, or period of exposure. During this stage, an af-

fected worker may become temporarily incapacitated and

may need to take short but frequent leaves from work.

When byssinosis reaches its advanced stage, the worker

exhibits the symptoms of emphysema and chronic bron-

chitis. Ultimately, irreversible lung damage results. A

worker afflicted with chronic byssinosis is forced into

premature retirement, often after painful efforts to re-

main on the job. Such individuals must give up all

activities that require any physical exertion. The perma-

nent lung damage caused by byssinosis makes every

breath painful and difficult. The excess strain these

breathing difficulties place on the heart often leads to

the worker’s early death from heart failure.

The actual number of persons afflicted with byssinosis

is not certain, but it is large. One study estimated that

35,000 people have “disabling loss of lung function re-

lated to their work in the cotton textile industry” alone.’

The Senate Report on the Occupational Safety and Health

Act stated that as many as 100,000 active or retired

workers suffered from the disease in 1970."*

Studies in the record estimate that 250,000 to 800,000

workers are exposed daily to cotton dust and its attend-

'7 J.A. 1214 (statement of A. Bouhuys); see A. Bouhuys,

et. al, Epidemiology of Chronic Lung Disease in a Cotton Mill

Community, J.A. 3165.

91st Cong., 2d Sess. 3 (1970), reprinted in S. REP. No.

91-1282, LEGISLATIVE HISTORY OF THE OCCUPATIONAL SAFETY

AND HEALTH ACT OF 1970, at 143 (1971) [hereinafter cited

as LEGIS. HISsT.].

1Sa

ant risks.1® As the reported incidence of the disease

usually ranges as high as 20-30% of the work force in

cotton industries,” each worker faces a substantial risk

of health impairment.”

B. History of Cotton Dust Regulation

Prior to the creation of OSHA, a private association

of governmental industrial hygienists placed cotton dust

on its tentative list of substances for which specific ex-

posure limits should be established.** In 1966 this organ-

ization adopted a “threshold limit value” of 1000 micro-

grams per cubic meter (1000 »g/m*) of total dust.”

The federal government first regulated cotton dust in

1968. At that time, the Secretary of Labor, acting pur-

suant to the Walsh-Healey Act,* promulgated a 1000

»g/m* maximum total dust exposure as an occupational

health requirement for public contractors.”

19 R. NADER, supra note 17, J.A. 2485 (estimating 250,000

textile workers exposed) ; Statement of Sidney M. Wolfe and

Peter Greene, Public Citizen’s Health Research Group, J.A.

3137 (estimating 800,000 cotton workers exposed).

20 See, e.g., J.A. 230 (20%-30% of people in carding rooms

of textile mills affected with byssinosis) (A. Bouhuys,

Byssinosis in the United States) ; J.A. 241 (20% of workings

in preparation area of textile plant exhibit byssinosis symp-

toms) (J. Merchant, et. al., Byssinosis and Chronic Bronchitis

Among Cotton Textile Workers).

21 The actual risk may vary according to the nature of

the cotton dust and the extent of an individual’s exposure.

2243 Fed. Reg. 27351 (1978) (describing American Con-

ference of Governmental Industrial Hygienists).

28 Id, :

*441 U.S.C. § 35(e) (1976). See 43 Fed. Reg. 27351 (1978).

2° The 1000 »g/m* total dust standard was based on a study

that was published in 1960. Conducted by Roach and Schil-

ling, the study examined cotton mills in Lancaster England.

This study is reprinted in the Joint Appendix (J.A. at 201.

l6a

This was an interim standard adopted upon passage

of the Act in 1970 in which section 6(a) required the

Secretary immediately to promulgate as occupational

safety or health standards all existing “established Fed-

eral Standards,” including the 1000 »g/m? standard for

cotton exposure.** These interim standards were intended

to afford workers minimal protection until the adoption

of permanent standards through OSHA’s rulemaking

proceedings.

On September 26, 1974, the Director of the National

Institute of Occupational Safety and Health (NIOSH) 2"

submitted to the Secretary of Labor a set of recommenda-

tions for regulating cotton dust. NIOSH recommended 78

76 29 U.S.C. § 655(a) (1976). See also 29 U.S.C. § 652(10)

(1976). Congressional concern over delays in regulating

cotton dust was manifest in the legislative history of the

Occupational Safety and Health Act of 1970:

“despite repeated warning over the years from other

countries that their cotton workers suffered from lung

disease, it is only within the past decade that we have

recognized byssinosis as a distinct occupational disease

among workers in American cotton mills.” S. REP. No.

91-1282, 91st Cong., 2d Sess. 3 (1971), reprinted in

LEGIs. HIST. 143.

2729 U.S.C. § 671 (1976), establishes NICSH within the

Department of Health, Education, and Welfare as a national

institute to “develop . . . recommended occupational safety

and health standards.” NIOSH’s director is authorized, on

his own initiative or at the request of the Secretary of Labor

or the Secretary of Health, Education, and Welfare,

to conduct such research and experimental programs as

he determines are necessary for the development of

criteria for new and improved occupational safety and

health standards[.]

29 U.S.C. § 671(d) (1).

*8 Criteria Document: Recommendations for an Occupa-

tional Exposure Standard for Cotton Dust, J.A. 1-169.

17a

that cotton dust exposure be “controlled to the lowest

feasible limit which shall be less than 0.2 mg lint-free

cotton dust/cu.m.,” * or 200 »g/m’*.

Shortly thereafter, OSHA published an Advanced No-

tice of Proposed Rulemaking on cotton dust. OSHA re-

quested interested parties to submit their views on the

NIOSH recommendations and related issues concerning

a proposed standard.*° OSHA received comments from

scientists, labor unions, industries, cotton growers, and

governmental representatives. A proposed revision, pub-

lished on December 28, 1976, called for an exposure

Iimit of 200 yng/m? of cotton dust.** OSHA provided 90

days for interested parties to submit written comments.”

At the close of the comment period, OSHA conducted

hearings in three cities for a total of 14 days.** The

comments and exhibits received before the hearings, the

written and oral testimony of the hearing participants,

and post-hearing comments and briefs comprise the in-

“formal rulemaking record for the final cotton dust stand-

ard promulgated by the agency. This record exceeds

105,000 pages in length; it includes comments from 263

parties and testimony from 109 participants at the hear-

2° J.A. 1974. See also 41 Fed. Reg. 565000 (1976).

3039 Fed. Reg. 44769 (1974). The Advance Notice re-

quested interested parties to submit written data, views, and

arguments concerning “whether a new standard . . . should

be issued on the basis of the [NIOSH] criteria or any other

information” and on the contents of a proposed standard. Jd.

3141 Fed. Reg. 56498 (1967), J.A. 171.

82 Td. at 56515, J.A. at 188.

38 The hearing was conducted in Washington, D.C. on April

5-8, May 2-6, and May 16-17; in Greenville, Mississippi, on

April 12; and in Lubbock, Texas, on May 10-12, 1977.

18a

ing. The Final Standard and its accompanying statement

of reasons fill 68 pages of the Federal Register.™

C. The OSHA Standard

On the basis of the massive rulemaking record, OSHA

promulgated the cotton standard in an effort to reduce

the health risks to cotton workers.** Part of the standard

sets “permissible exposure limits” (PELs) for each manu-

facturing operation and industry that exposes workers

to cotton dust.*® Thus, OSHA set (1) 200 micrograms

5443 Fed. Reg. 27350 (1978) (to be codified as 29 C.F.R.

§ 1910.1043 (b) ).

35 See 43 Fed. Reg. 27394-418 (1978) (to be codified at 29

C.F.R. § 1910.1043). This is the first standard promulgated

under § 6(b) (5) of the Act that does not involve a suspected

carcinogen. Earlier standards were adopted for coke oven

emissions, such as asbestos dust, see 29 C.F.R. § 1910.98a

(1978).

Section 3(8) of the Act, 29 U.S.C. §652(8) defines the

term “occupational safety and health standard” to mean

a standard which requires conditions, or the adoption

or use of one or more practices, means, methods, opera-

tions, or processes, reasonably necessary or appropriate

to provide safe or healthful employment and places of

employment.

The Act requires employers to “comply with occupational

safety and health standards promulgated” under the Act,

29 U.S.C. § 654(a) (2), in addition to their general duty to

furnish employment and a place of employment “free from

recognized hazards that are causing or are likely to cause

death or serious physical harm ... .” 29 U.S.C. § 654 (a) (1).

36 The proposed and final standards both set limits for

exposure to cotton dust particles that are both lint-free and

small enough to be breathed. These respirable particles can

be measured in microns over a given time period. Relying on

what it found to be “the most persuasive testimony” in the

record, OSHA used a 15-micron cut-off point to separate

19a

per cubic meter (200 y»g/m*) as the PEL for lint-free

respirable cotton dust in yarn manufacturing; (2) 750

ug/m* for slashing and weaving operations in the cotton

industry; and (8) 500 »g/m? for all other processes in

the cotton industry and for all non-textile industries that

expose workers to cotton dust.”

Implementation of the standard depends primarily on

the adoption of engineering and work practice controls

by employers. OSHA established a four-year implemen-

tation period during which employers are expected to

achieve compliance. If an employer establishes that the

required controls are infeasible, he can obtain an admin-

istrative variance from the standard,** but he must make

respirators available to protect his employees until he

achieves compliance.*® The standard also requires em-

respirable from non-respirable particles. 43 Fed. Reg. 27355

(1978). Once this cut-off size was determined, the rulemaking

participants agreed that the verticle elutriator, a machine

that screens airborne particles, is the best sampling device

currently available. It separates particles larger than 15

microns from the remaining, “respirable” portion of dust.

Id. at 27382-84. The verticle elutriator cotton sampling

device eliminated from the sample all non-respirable par-

ticles, including cotton fly and lint fibers. See J.A. 129. In its

final standard, OSHA designated the verticle elutriator “or a

method of equivelent accuracy and precision” as the means

for measuring dust levels, averaged over an eight-hour

period. 43 Fed. Reg. 27395 (1978) (to be codified at 29

C.F.R. § 1910.43(c)). Also specified that the measuring de-

vices “should operate at a flow rate of 7.4+0.2. liters per

minute. Id. at 27398 (sampling equipment).

37 Id. at 27395 (to be codified at 29 C.F.R. § 1910.1043(c) ).

38 See 43 Fed. Reg. 27395 (1978) (§ 1910.1043(e) of the

standard); 29 U.S.C. §§ 655 (b) (6) (A) (1976) (variance

procedures). See text at note 235 infra.

9° 43 Fed. Reg. 27396 (1978) (§ 1910.10438 (f) of the stand-

ard) ; id. at 27386.

20a

ployers to monitor employees’ exposure to cotton dust, to

provide medical surveillance and employee education, and

to post warning signs about the health risks.

Before examining petitioners’ objections, we consider

the limits of our review.

II. SCOPE OF REVIEW

The Occupational Safety and Health Act of 1970 is

one of a number of recent Congressional statutes that

designates the stringent “substantial evidence” test for

judicial review of notice-and-comment rulemaking.* The

explicit language of the Act,*' its legislative history,**

and its application by the courts** confirm that regula-

40 See Federal Trade Commission Improvement Act of

1974, 15 U.S.C. § 57a(4) (3) (A) (1976) ; Consumer Product

Safety Act, 15 U.S.C. § 2060(c) (1976); Toxic Substances

Control Act, 15 U.S.C. § 2618(C) (1) (B) (i) (1976).

4. The OSH Act, §6(b) (5), 29 U.S.C. § 655(f) (1976),

assigns the scope of review for any challenge to a standard

issued under § 6 of the Act, 29 U.S.C. § 655:

The determinations of the Secretary shall be conclusive

if supported by substantial evidence in the record con-

sidered as a whole.

42H. Rep. No. 91-1765, 91st Cong., 2d Sess. 36 (1970)

(Statement of the Managers on the Part of the House),

reprinted in LEGIS. HISTORY at 1189. See Assoc. Indus. v.

Dep’t of Labor, 487 F.2d 342, 348-49 (2d Cir. 1973)

(Friendly, J.) (discussing legislative history).

43 In Industrial Union Dep’t v. Hodgson, 499 F.2d 467

(D.C. Cir. 1974), this court rejected the claim that the sub-

stantial evidence test adopted in the Act should apply only to

factual determinations. This view would leave policy judg-

ments behind a challenged health and safety standard review-

able only under the arbitrary and capricious test. 499 F.2d

at 473. Instead, this court concluded that under the Act,

policy inferences along with factual determinations must not

escape “exacting scrutiny” even though inferences cannot

be strictly verified. Jd. at 475. See also Assoc. Indus. v. Dep’t

of Labor, 487 F.2d 342, 349 (2d Cir. 1973).

2la

tions promulgated under the Act are to be upheld on

review if supported by “substantial evidence on the rec-

ord considered as a whole.” **

The substantial evidence test provides for more rigor-

ous scrutiny than the usual “arbitrary and capricious” **

test applicable to informal rulemaking.*® Although Con-

gress required this more rigorous judicial review, it

nevertheless delegated unusually broad discretionary au-

4429 U.S.C. § 655(f) (1976). The requirement of sub-

stantial evidence “on the record considered as a whole”

means that reviewing courts must take into account not just

evidence that supports the agency’s decision, but also coun-

tervailing evidence. Universal Camera Corp. v. NLRB, 340

U.S. 474, 481-82 (1951). Yet this requirement does not alter

the court’s fundamental duty to uphold the agency’s “choice

between two fairly conflicting views, even though the court

would justifiably have made a different choice had the matter

been before it de novo.” Id. at 488.

45 See Administrative Procedure Act, 5 U.S.C. § 706(2) (A)

(1976). Until the last decade, this was the standard of

review typically applied to informal rulemaking. See K.

DAVIS, 1 ADMINISTRATIVE LAW TREATISE § 6.6 (1978). It re-

mains as a basic standard of review, along with other criteria

of legality and constitutionality, even when the substantial

evidence test applies. F.g., May Trucking Co. v. United States

and ICC, 593 F.2d 1349, 1852 (D.C. Cir. 1979).

46 In application, however, the lines between the two tests

are far from clear. In Citizens to Preserve Overton Park,

401 U.S. 402, 415-16 (1971), the Supreme Court held that

review of informal agency action must be “thorough, prob-

ing, in-depth” and “searching and careful’’—even where

the substantial evidence test does not apply. This court con-

cluded in Greater Boston Telephone Corp. v. FCC, 444 F.2d

841, 852 (D.C. Cir. 1970), that even in reviewing agency

adjudication, the essential requirement is reasoned decision

making. See generally Assoc. Indus. v. Dep’t of Labor, 487

F.2d 341, 349-50 (2d Cir. 1973) (convergence between ‘“‘sub-

stantial evidence” and “arbitrary or capricious” criteria).

22a

thority to regulate against possible harms.‘* We have

already resolved this seeming anomoly in Industrial

Union Dep’t v. Hodgson, 499 F.2d 467 (D.C. Cir. 1974).

There we concluded that the reviewing court’s task under

the Act is to provide a careful check on the agency’s

determinations without substituting its judgment for that

of the agency.** Congress apparently created an “un-

easy partnership” between the agency and the reviewing

court *® to check extravagant exercises of the agency’s

47 The substantial evidence test was adopted in the Act

apparently as a compromise when the House relinquished its

advocacy of formal agency proceedings and adopted the Sen-

ate’s informal rulemaking provision. See H. REP. No. 91-1765.

91st Cong., 2d Sess. 36 (1970), reprinted in LEGIS. HIST. at

1189. See also Industrial Union Dep’t v. Hodgson, 499 F.2d

at 473; Assoc. Indus. v. Dep’t of Labor, 487 F.2d at 348-49

(discussing legislative history of scope of review provision).

48In Industrial Union Dep’t v. Hodgson, this court con-

strued the substantial evidence review in terms of the de-

mands to be made by the reviewing court:

What we are entitled to at all events is a careful iden-

tification by the Secretary, when his proposed standards

are challenged, of the reasons why he chooses to follow

one course rather than another. Where that choice pur-

ports to be based on the existence of certain determinable

facts, the Secretary must, in form as well as substance,

find those facts from evidence in the record. By the same

token, when the Secretary is obliged to make policy judg-

ments where no factual certainties exist or where facts

alone do not provide the answer, he should so state and

go on to identify the considerations he found persuasive.

499 F.2d at 475-76.

49 Assoc. Indus. v. Dep’t of Labor at 354. This partnership

is uncomfortable for the courts chiefly because the record

produced by informal rulemaking is not easily suited to close

judicial scrutiny. See Florida Growers Ass’n v. Dep’t of

Labor, 489 F.2d 120, 129 (5th Cir. 1974). The record gen-

erally is a compendium of letters, studies, reports, and state

ments, untested by the adversary process. Refiecting the

23a

authority to regulate risk.*° Our role in this partnership

is to ensure that the regulations resulted from a process

of reasoned decisionmaking consistent with the agency’s

mandate from Congress.®! By statute, this process must

include notice to interested parties of issues presented

in the proposed rule.5® The agency must also provide

opportunities for these parties to offer contrary evidence

and arguments.

OSHA adopted additional procedures to improve its

decisionmaking process. A qualified hearing examiner

legislative nature of informal rulemaking, the record often

does not even display the full range of considerations before

the agency when the decision was made. Pedersen, Formal

Records and Informal Rulemaking, 85 YALE L.J. 38, 62

(1975). Furthermore, the decision necessarily rests on policy

considerations authorized by the agency’s mandate. Judicial

review of such considerations cannot be identical to review

of factual determinations.

50 Congress wanted the Secretary to protect workers not

only against known harms, but also against risks of harms

not entirely understood. See, e.g., S. REP. No. 91-1282, 91st

Cong., 2d Sess. 4 (1970), reprinted in LEGIS. HIST. at 144

(discussing need to regulate organophosphates and chlori-

nated hydrocarbons).

51 Universal Camera v. NLRB, supra at 488; Ethyl Corp.

v. EPA, 541 F.2d 1, 34 (D.C. Cir.), cert. denied, 426 U.S.

941 (1976).

52 29 U.S.C. §§ 655 (b) (2), (3) (1976).

83 Td.

% The OSH Act requires the Secretary to follow these pro-

cedures in promulgating health and safety standards under

§ 655 of the Act:

1) publication of the proposed rule in the Federal Register,

§ 655 (b) (2);

[Continued]

24a

must preside at oral hearings on proposed standards. A

verbatim transcript of the hearing is required, and cross-

examination is permitted. These procedures, which were

followed in this case, transform OSHA’s action into

“hybrid” rulemaking,®* and produce a record more sus-

ceptible to rigorous judicial review than the more usual

informal rulemaking record.”

5¢ [Continued]

2) opportunity for interested parties to submit “written

data or comments” within thirty days after publication

of the proposed rule, § 655 (b) (2);

3) opportunity for interested parties to submit “written

objections to the proposed rule .. . and request[] a

public hearing on such objections,” § 655 (b) (3);

4) publication in the Federal Register of time and place

for hearing scheduled on objections to proposed stand-

ard, § 655(b) (3); and

5) promulgation of final rule, or decision not to issue one,

within sixty days after period permitted for written

comments, or within sixty days after completion of

hearing, § 655(b) (4).

These provisions add to the minimal procedures required by

the APA, 5 U.S.C. § 553 (1976).

The agency also requires that all relevant information, in-

cluding submissions and testimony, must be considered in

formulating the final standard. 29 C.F.R. § 1911.18 (a) (1)

(1978). The statement of basis and purpose for the final

standard must describe “the significant issues which have

been faced, and... the rationale for their solution.” 29

C.F.R. § 1911.18(b) (1978).

55 See K. DAVIS, 1 ADMINISTRATIVE LAW TREATISE, 453

(1978).

56 In describing the additional procedures, the agency noted

“a congressional expectation that the rulemaking would be

on the basis of a record “to which a substantial evidence test,

where pertinent, may be applied.” 29 C.F.R. § 1911.15(a)

(1978).

25a

The tasks of this reviewing court are thus to ensure

that the agency has (1) acted within the scope of its

authority; °’ (2) followed the procedures required by

statute and by its own regulations; ** (3) explicated the

bases for its decision; (4) adduced substantial evidence

in the record to support its determinations.*®

The meaning of “substantial evidence’ in this context

is problematic. Factual proof about particular health

risks may not be substantial in the traditional sense

simply because the medical and scientific communities do

not yet completely understand the nature of threatening

diseases. To protect workers from material health im-

pairments, OSHA must rely on predictions of possible

future events and extrapolations from limited data. It

may have to fill gaps in knowledge with policy considera-

tions. Congress recognized this problem by authorizing

the agency to promulgate rules on the basis of the “best

available evidence.” ® OSHA’s mandate necessarily re-

quires it to act—even if information is incomplete—

57 Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402,

415 (1971); City of Chicago v. FPC, 458 F.2d 731, 745 (D.C.

Cir. 1971); Automotive Parts & Accessories Ass’n v. Boyd,

407 F.2d 330, 348 (D.C. Cir. 1968); 5 U.S.C. § 706(a) (C)

(1976).

58 Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402,

417 (1971); Friends of the Earth v. United States Atomic

Energy Comm’n, 485 F.2d 1031, 1033 (D.C. Cir. 1973); 5

U.S.C. § 706(2) (D) (1976).

59 See note 2 supra. We have also described these three

elements as review of (1) the agency’s interpretation of its

authorizing statute; (2) procedural integrity; and (3) the

substantive basis for the agency’s decision. Weyerhaeuser

Co. v. Costle, 590 F.2d 1011, 1024-28 (D.C. Cir. 1978).

29 U.S.C. § 655(b) (5) (1976). The best available evi-

dence in an area of changing technology and incomplete scien-

tific data may leave gaps in knowledge that require policy

judgments in constructing the health and safety standard. In

26a

when the best available evidence indicates a serious threat

to the health of workers.“ Thus, a court entrusted with

the rigorous “substantial evidence” review must examine

not only OSHA’s factual support, but also the “judg-

ment calls” and reasoning that contribute to its final

decision.*2 Otherwise, an agency’s claim of ignorance

would clothe it with unreviewable discretion.

Therefore, the reviewing court must examine both fact-

ual evidence and the agency’s policy considerations set

forth in the record. To facilitate this review of the

record, the agency must pinpoint the factual evidence

and the policy considerations upon which it relied.*. This

requires explication of the assumptions underlying pre-

dictions or extrapolations,* and of the basis for its

recent statutes Congress has defined “evidence” to mean “any

matter in the rulemaking record.” E.g., Toxic Substances

Control Act, 15 U.S.C. § 2618(c) (1) (B) (1976).

8129 U.S.C. § 655(b) (5) (1976). A suit was filed in 1975

charging unlawful delay in modification of the then-existing

standard. Amalgamated Clothing & Textile Workers Union,

et al. v. Secretary of Labor, No. 75-2157 (D.C., filed Dec. 24,

1975).

62 499 F.2d at 475; 487 F.2d at 348.

88 See SEC v. Chenery Corp., 318 U.S. 80, 87 (1943).

* With regard to environmental rulemaking, this court held

that

Where a statute is precautionary in nature, the evidence

difficult to come by, uncertain, or conflicting because it

is on the frontiers of scientific knowledge, the regulations

designed to protect the public health, and the decision

that of an expert administrator, we will not demand

rigorous step-by-step proof of cause and effect. Such

proof may be impossible to obtain if the precautionary

purpose of the statute is to be served. .. . The Adminis-

trator may apply his expertise to draw conclusion from

suspected, but not completely substantiated, relationships

27a

resolution of conflicts and ambiguities. In enforcing

these requirements, the court does not reach out to re-

solve controversies over technical data.® Instead, it seeks

to ensure public accountability. Explicit explanation for

the basis of the agency’s decision not only facilitates

proper judicial review but also provides the opportunity

for effective peer review, legislative oversight, and public

between facts, from trends among facts, from probative

preliminary data not yet certifiable as ‘fact,’ and the like.

Ethyl Corp. v. EPA, 541 F.2d 1, 28 (D.C. Cir. 1976) (cita-

tions omitted). See Amoco Oil Co. v. EPA, 501 F.2d 722,

740-41 (D.C. Cir. 1974) (reasons and explanations, but not

findings, required for predictions used in risk regulation).

65 [W]hen the Secretary is obliged to make policy judg-

ments where no factual certainties exist or where facts

alone do not provide the answer, he should so state and

go on to identify the considerations he found persuasive.

499 F.2d at 476.

66 See Ethyl Corp. v. EPA, 541 F.2d 1, 67 (D.C. Cir. 1976)

(Bazelon, C.J., and McGowan, J., concurring); Internat’]

llarvester Co. v. Ruckelshaus, 478 F.2d 615, 652 (D.C. Cir.

1973) (Bazelon, C.J., concurring in result). From their stance

outside of both scientific and political debates, courts can help

to ensure that decisionmakers articulate the basis for their

decisions. But once courts step beyond that role and endeavor

to judge the merits of competing expert views, they leave the

terrain they know. In so doing, the judiciary may mislead

the public into believing it provides an expert check on deci-

sions that in fact it does not fully comprehend.

Thus, a court applying the substantial evidence test to a

numerical standard considers “whether the agency’s numbers

are within a ‘zone of reasonableness,’ not whether its numbers

are precisely right.” Hercules, Inc. v. EPA, 598 F.2d 91, 107

(D.C. Cir. 1978). Similarly, the possibility of drawing two

inconsistent conclusions from the evidence does not prevent

an administrative agency’s finding from being supported by

substantial evidence. Environmental Defense Fund v. EPA,

510 F.2d 1292, 1298 (D.C. Cir. 1975); accord Bayside Enter-

prises, Inc. v. NLRB, 429 U.S. 248, 302 (1976).

28a

education. This requirement is in the best interest of

everyone, including the decisionmakers themselves. If

the decisionmaking process is open and candid, it will in-

spire more confidence in those who are affected. Further,

by opening the process to public scrutiny and criticism, we

reduce the risk that important information will be over-

looked or ignored. Instructed by these ends, this court

on review will “combine supervision with restraint.” ™

III. CHALLENGES BY THE TEXTILE INDUSTRY

The textile industry petitioners acknowledge that tex-

tile workers who are exposed to cotton dust may risk

contracting byssinosis.** Their challenge focuses on the

regulatory approach OSHA has chosen to reduce that

risk. Specifically, they ask us to find that OSHA’s regula-

tory approach is not “reasonably necessary” to protect

textile workers from the admitted danger posed by cot-

ton dust.*® Further, they ask us to find that approach

technologically and economically infeasible.”

A. Challenge to the Regulatory Approach

OSHA chose a “dust control strategy” that requires

engineering and work practice controls to limit worker

exposure to the “lowest feasible [cotton] dust levels”

within four years.”

67 Public Serv. Comm’n v. FPC, 511 F.2d 338, 355 (D.C.

Cir. 1975).

68 See, e.g., Joint Brief Textile Petitioners at 2-3; 8-9 [here-

inafter cited as Textile Brief] (“[t]he development of bys-

sinosis has been associated with the inhalation of an unknown

element in the dust generated by the handling or processing

of cotton’); id. at 18 (referring to “the slowly progressive

health hazard presented by exposure to ‘cototon dust’ ”’).

8° Textile Brief at 54-65.

70 Td. at 18-20, 29-34, 37-54.

71 See text at notes 37-39.

29a

The textile industry rejects OSHA’s approach as un-

necessarily expensive. The industry contends that workers

can be fully protected from “ ‘material impairment of

(their] health or functional capacity’”’ by a higher per-

missible exposure level coupled with a medical surveil-

lance program.”? The industry’s alternative would permit

an exposure level of 500 »g/m* in all cotton manufactur-

ing operations except weaving, for which a PEL of

1000 »g/m* is proposed. This alternative would also re-

quire workers to wear respirators or accept transfers to

lower exposure work areas if medical surveillance shows

that they are suffering from byssinosis symptoms “which,

with years of continued exposure, could lead to [material

health] impairment.” ™

The textile industry petitioners claim that OSHA failed

to seriously consider their alternative or to provide ade-

quate reasons for rejecting it. The industry also claims

that the regulatory approach adopted by OSHA is not

permitted by the Act.* We disagree with both claims.

First, OSHA gave serious attention to the medical

studies conducted by the textile industry and proffered to

support the industry’s alternative.** These studies pur-

72 Td. at57 (emphasis in original) ; id. at 21.

73 Jd. at 21-22. The industry claims that its approach will

provide protection comparable to OSHA’s strategy in that

neither completely eliminates the occurance of early byssinosis

symptoms. /d. at 16-17.

74 Id. at 54-64.

7 The industry relies on the following studies: (1) Burling-

ton Industries, Inc., study of 12,519 workers from 1970-1976

(Joint Appendix (J.A.) 2035; (2) West Point-Pepperell, Inc.

study of 9,181 workers in 1973 (J.A. 1987, 2005); (3) study

by Dr. W.K.C. Morgan of 720 workers (J.A. 2008); (4) study

by Dr. Hans Weill, an OSHA witness, with complete data on

418 workers (J.A. 1235, 1240); (5) study by Cone Mills

Corporation of 6,631 workers (J.A. 2012). These studies are

discussed at length in OSHA’s statement of reasons. See 43

Fed. Reg. 27355-57 (1978).

30a

port to show that medical surveillance programs at vari-

ous textile plants have already afforded workers a level of

protection comparable to that offered by OSHA’s approach.

The record shows that OSHA specifically addressed and

scrutinized these studies, and concluded that their valid-

ity had iargely been discredited.** OSHA’s judgment on

76 See generally, 43 Fed. Reg. 27355-57. OSHA found the

industry studies deficient on many grounds. First, the pre-

valence of byssinosis reported at the studied mills tended to

be low, but these mills had experienced dust reduction prior to

implementation of medical surveillance. Consequently, the

mills studies by the textile industry lacked a necessary pre-

condition—a dust level of at least 500 »g/m*—validly to test

the industry’s contention that their proposal would be as effec-

tive as OSHA’s lower PELs in reducing the prevalence of

byssinosis.

OSHA also identified substantial, unexplained differences

between the percentage of workers who reported subjective

byssinosis symptoms and the percentage of those showing

pulmonary function decrements indicative of the disease. The

textile industry refers to workers’ subjective health reports

but not to the objective, pulmonary function measurements.

The Union petitioners note that workers sometimes falsely

deny byssinosis symptoms for fear of losing their jobs if

their employer learns that their health is impaired. AFL-

CIO, American Textile Manufacturers Institute, Inc., et al.,

Petitioners Reply Brief and Brief in Intervention at 42 n.55

{hereinafter Union Reply Brief].

OSHA also criticized the industry studies on a number of

other grounds. 43 Fed. Reg. 27356-57. First, none of the

studies had been subjected to peer review through publication

in scientific journals. None of them produced dose-response

data, that is, data charting medical responses to different dust

levels. The populations studied may not be representative of

the entire affected population. Finally, the validity of the

studies could not be verified because the textile industry de-

clined to furnish the underlying data, and in some cases,

failed to produce the authors of the studies for cross-examina-

tion at the hearing. Consequently, OSHA concluded that

these studies provided insufficient basis for the regulation.

3la

this issue is sufficiently supported on this basis.”

Besides this careful treatment of the medical surveil-

lance proposal, OSHA rejected the industry’s proposed

reliance on job transfers and respirators to protect

workers suffering fiom acute symptoms of byssinosis on

the basis of testimony in the record and express policy

considerations.** The industry was unable to show that

job transfers would be available in sufficient number to

respond to the likely prevalence of byssinosis in plants

with dust levels at the 500 u»g/m* proposed by the in-

dustry.** Further, the agency found uncontradicted testi-

mony in the record that respirators can cause severe

physical discomfort and create safety problems of their

own.*” OSHA concluded that the industry’s proposal in-

77 Our task is not to resolve the controversy over the studies,

but to determine if the agency received and fairly responded

to challenges. It did so here in its consideration of the indus-

try’s studies. Its explicit identification of flaws in the studies

can, inter alia, alert future participants to the quality of re-

search it seeks as a basis for its regulations.

78 43 Fed. Reg. 27384 (1978).

*® OSHA, relying on dose-response data submitted by Dr.

Merchant, found that 25% of the workers exposed to a 500

ug/m* PEL would develop byssinosis. At this prevalence rate,

it is doubtful that all of the affected workers could be moved

to a low exposure area. See, e.g., Testimony of Dr. Imbus,

Medical Director, Burlington Industries (J.A. 3379-80) noting

that 10% was the maximum number of workers who could be

reassigned through a medical surveillance and job transfer

approach).

8 OSHA carefully explained why it rejected “a control

strategy involving principal reliance on respiratory protec-

tion[] to reduce the cost of compliance”’:

[R]lespirators have many disadvantages which preclude

primary reliance or co-reliance on respiratory protection

on an equal basis with engineering and work practice

controls. The many difficuities ... were enumerated at

32a

appropriately placed the burden of compliance on the

employees.*' On this express policy ground, and on the

-basis of the evidence in the record, OSHA reasonably re-

jected these elements in the industry alternative.

Finally, the textile industry argues that the agency’s

effort to reduce workers’ cotton dust exposure to the

lowest feasible level is not “reasonably necessary or ap-

propriate.” ** This argument rests on the claim that the

agency need not guard against the acute but reversible

symptoms of byssinosis because they do not themselves

constitute a “‘material impairment of health.” ** We find

the hearing . . . because of difficulties in face fit, it is

difficult to know whether the respirator actually provides

adequate protection; respirators, by interfering with vi-

sion, hearing, and mobility, can cause safety problems;

some employees cannot wear respirators because of

breathing difficulties.

43 Fed. Reg. 27384 (1978).

31 Jd, (“it is not appropriate to place the burden of compli-

ance principally on the employee, as would be the case if

respiratory protection were the principal means of reducing

employee exposure.”’).

°° Textile Brief at 21,55. “Reasonably necessary or appro-

priate” is language from the statutory definition of an “‘occu-

pational safety and health standard.” See § 652(8) (defining

“occupational safety and health standard” as requiring con-

ditions or practices “reasonably necessary or appropriate to

provide safe or healthful employment and places of employ-

ment”). Apparently, the thrust of the textile industry’s argu-

ment on this point is not that OSHA lacks the power to

promulgate a standard that reduces worker exposure to the

lowest feasible levels. Rather, the industry argues that OSHA

inadequately explained why “it chose to apply its full range

of powers” instead of accepting the industry’s less stringent

alternative. /d. at 63-64.

83 See id. at 57-59. The Act does not itself define “material

impairment.” Although testimony at the rulemaking hearing

described the acute symptoms of byssinosis as “a serious health

33a

that this claim and its attendant argument must fall in

the face of the agency’s evidence and reasons.

The agency adopted a “dust control strategy” after

finding conclusive evidence of a causal relation between

exposure to cotton dust and the contraction of respira-

tory diseases, such as byssinosis. The agency acknow-

ledged gaps in medical understanding of the specific

causal relationship between cotton dust and disease.

Nonetheless, the agency’s mandate requires it to protect

workers’ health even before the resolution of all medical

and scientific uncertainties about the particular health

risk. Further, OSHA heard several witnesses conclude

that at present,” there is no basis for any programs of

prevention and control of byssinosis other than those based

on prevention of exposure to respirable cotton dust.” **

Virtually without exception, key textile industry witnesses

along with public health experts rejected medical surveil-

lance as an alternative to dust reduction.” Accordingly,

hazard,” Hearing Transcript at 168 (testimony of Dr. Bou-

huys), we do not here need to decide whether these symptoms

constitute “material impairment” for the purposes of the Act.

Instead, we find adequate support in the record for the

agency’s choice of the dust control strategy effectively to pro-

tect workers from byssinosis, which is conceded by all to

cause material impairment in its chronic stage.

4 See note 16 supra.

85 See H. Rep. 91-1291, 91st Cong., 2d Sess. at 18 (1970),

reprinted in LEGIS. HIST. at 848 (OSHA not to “be paralyzed

by debate surrounding diverse medical opinion”). See also

Soc’y of Plastics v. OSHA, 509 F.2d 1301, 1308 (2d Cir. 1975),

cert. denied, 421 U.S. 992 (1975).

8° 43 Fed. Reg. 27355 (1978).

87 The textile industry’s leading witness, Dr. Imbus of Bur-

lington Industries, acknowledged that “[m]edical surveillance

programs are not a substitute for diligent efforts to control

dust.” J.A. 396.

[Continued]

34a

the agency adduced considerable evidence to support its

dust control strategy.

The agency’s approach, which is similar to its strategy

in regulating asbestos,®* is authorized by the primary pur-

pose and by the special mandate of the Act. Section 2(b)

sets out the Act’s broad protective purpose: “to assure

so far as possible every working man and woman in the

Nation safe and healthful working conditions.” Toward

this end, section 6/b) (5) authorizes OSHA to set perm-

anent standards for occupational exposure to “toxic ma-

terials or harmful physical agents” at the level

which most adequately assures, to the extent feasible,

on the basis of the best available evidence, that no

employee will suffer material impairment of health

or functional capacity even if such employee has regu-

lar exposure to the hazard dealt with by such stand-

ard for the period of his working life.”

Contrary to the industry’s view, this mandate does not

restrain the agency from acting to prevent irreversible

health damage until workers actually suffer the early

symptoms of byssinosis. Instead it is a mandate to reduce

8? [Continued]

The need for a dust contro] strategy was a constant theme

of expert testimony. Drs. Merchant and Bouhuys, for exam-

ple, both recommended PELs well below the 500 »g/m® level

proposed by the textile industry. At the hearing, Dr. Bouhuys

and NIOSH recommended a 200 »g/m* PEL. J.A. 1233, 1448.

Di. Merchant recommended a PEL of 100 »g/m*. J.A. 369.

Even Dr. Weill, who appeared on behalf of the textile indus-

try, declined to endorse the industry’s proposed PEL. Instead

he recommended that the PEL be set somewhere between 200

ng /m* and 500 pg/m*. J.A. 1237.

‘8 See 29 C.F.R. 1910.93a (1978); Industrial Union Dep’t

v. Hodgson, 499 F.2d 467, 478-81 (D.C. Cir. 1974) (discussing

asbestos standard).

** 29 U.S.C. § 655 (b) (5) (1976).

35a

the risk of that irreversible damage—especially for those

workers who have regular exposure to the causal agent,

cotton dust. In the present case, OSHA adequately docu-

mented the risk of such damage attributable to continued

exposure to cotton dust. Medical experts testified on the

record that the early, acute symptoms of byssinosis

weaken the worker’s pulmonary system and increase his

susceptibility to the adverse effects of subsequent cotton

dust exposure.” We therefore uphold OSHA’s decision to

reduce the prevalence of chronic byssinosis through regu-

lations stringent enough to reduce even the occurence of

the reversible acute stage of the disease.

B. Feasibility of the Standard

All parties acknowledge that OSHA must evaluate

technological and economic feasibility in setting perman-

ent standards under section 6(b) (5) of the Act. These

considerations set constraints on the agency’s mandate to

assure employees “the highest degree of health and

safety.” *' In light of petitioners’ claims, we must ex-

amine the record to ensure that OSHA has not exceeded

its mandate by neglecting these constraints.

We are assisted here by this court’s interpretation of

the feasibility requirement in Industrial Union Dep't,

AFL-CIO v. Hodgson. In that case, we concluded that

*1 § 6(b) (5); 29 U.S.C. § 655(b) (5) (1975). The Secretary

is to promulgate a health and safety standard “which most

adequately assures, to the extent feasible, on the best available

evidence, that no employee will suffer material impairment

or health or function capacity. ... In addition to the attain-

ment of the highest degree of health and safety protection

for the employee, other considerations shall be the latest avail-

able scientific data in the field, the feasibility of the standards,

and experience gained under this and other health and safety

laws.” (emphasis added).

36a

the feasibility requirement reflects Congress’ recognition

that employees would not be protected if their employers

were put out of business.®? This possibility is all too real

if the agency inflexibility requires protective devices un-

available under existing technology or otherwise makes

financial viability impossible.** At the same time, we con-

cluded, standards do not become infeasible simply because

they may impose substantial costs on an industry, force

the development of new technology, or even force some

employers out of business.** Otherwise the Act’s commit-

ment to protect workers might be forever frustrated.

In this case, the textile industry petitioners contend

that the record does not support OSHA’s findings of

technological and economic feasibility. First, they argue

that the standard is technologically infeasible for the

spinning through weaving stages of textile manufactur-

ing.” Further, they argue that the record does not sup-

%2 499 F.2d 467, 477-78 (D.C. Cir. 1974).

%3 Jd,

* “Tt would appear to be consistent with the purposes of

the Act to envisage the economic demise of an employer who

has lagged behind the rest of the industry in protecting the

health and safety of employees and is consequently financially

unable to comply with new standards as quickly as other

employers.” Id. at 478.

*5 Textile Brief at 20, 28-34. According to the industry, the

production of fabric from cotton involves twelve distinct man-

ufacturing operations, falling into three general stages. /d.

at 7.

During the first stage, raw cotton is cleaned and prepared

for spinning into yarn. This first stage involves opening,

picking, carding, drawing, and roving the cotton. The second

stage transforms the prepared cotton into yarn and packages

it for subsequent processing. The principal operation in this

stage is spinning, during which the prepared cotton slivers

are elongated. The next operations in this stage consolidate

units of spun yarn and prepares them for weaving by twist-

ing, winding, spooling, and warping. The third stage of oper-

37a

port the agency’s finding that the standard is economically

feasible. In addition, they argue that “OSHA failed to

satisfy its obligation seriously to weigh even its grossly

understated costs against the benefits sought to be se-

cured by the Standard.”

Our review of these challenges is not designed to re-

solve the technical and economic debates. Our duty is

simply to determine from close scrutiny of the entire

record whether the feasibility of the standard is ade-

quately supported by data and policy considerations. In

addition, the agency must have considered and responded

to serious challenges to the claim of feasibility. On both

counts, we find that OSHA has performed its task ade-

quately.

1. Technological feasibility

The textile industry does not argue that the exposure

level set for the intial stages of textile manufacturing is

technologically infeasible. Its attack is limited to the

feasibility of the level set for the later stages of spinning

through weaving,*® and to the four-year deadline for

ations involves slashing and weaving. Slashing adds sizing to

the yarn; weaving then interlaces two sets of yarn to produce

a woven fabric. Under the cotton dust standard, the first two

stages are classified together as “yarn manufacturing.” Id.

at 7-8.

96 Jd. at 21. The Unions also challenge the standard under

the feasibility requirement, but unlike the textile industry

petitioners, they argue that the exposure level set by the agency

is not the lowest one feasible. We consider this challenge in

note 150 infra.

*7 Td. at 25 (“general principles of dust control... are ex-

pected generally to yield compliance in the operations from

opening through roving” stage.

*8 Jd. at 24-35 (challenging technological feasibility of 200

pg/m*® set for spinning through warping and 750 pe/m set

for slashing and weaving).

38a

compliance.”

Judging the technological feasibility of a particu-

lar agency goal is beyond the expertise of the judiciary

especially where the assessment involves predictions of

technological changes.

Instead, our task on review is to find whether the

agency sufficiently supported its feasibility determination

with material in the record. Here, the agency’s position

is supported with evidence that existing dust control

techniques can bring about compliance in the textile

industry.’

First, OSHA points to evidence in the record that

many employers already are in compliance with the 200

ug/m* PEL set for spinning through warping operations.

This finding at least in part refutes the industry’s charge

that on technological grounds it cannot meet the re-

quired exposed level for these operations. Notably, three-

fourths of the spinning operations described in the in-

dustry’s own study had dust levels below the 200 »g/m*

level and others were very close to voluntary compliance.’

The textile industry does not contend that the looms

or frames not yet in compliance in any way differ from

those already complying with the new PEL. Rather, the

industry asserts that the noncomplying mills run dustier

9 Td. at 34-37. See Part V infra for our consideration of

this claim.

100 These measures include improving general ventilation,

and requiring better maintenance of equipment. OSHA also

recommended more thorough cleaning of the cotton in the

opening and cleaning processes, and better dust control in

the opening through roving stages or isolation of these

operations. See 43 Fed. Reg. 27363-65 (1978). See also J.A.

3607-08, 1145 (improving general ventilation); J.A. 80

(equipment maintenance) ; J.A. 1886 (cleaning of cotton) ;

J.A. 2445 (dust control); and J.A. 551 (isolation of certain

processes.

101 See, e.g., J.A. 3490-3560; 2008-2011. See generally 43

Fed. Reg. 27362-68 (1978).

39a

cotton. This contention, as OSHA answers, is belied by

the record, for the requisite PEL has been met in spin-

ning operations running 100% coarse cotton, which is the

dustiest variety.’

There is also evidence that some mills have achieved low

dust levels in the twisting, winding, spooling, and warp-

ing operations..°° OSHA admits that these operations

have been studied less than spinning, apparently because

these operations generate very little cotton dust.’ The

agency nevertheless obtained evidence that existing dust

control principles can be adapted to these operations as the

need arises.’

102 JA. 3532, 3538-40, 3544.

103 J.A. 792-93, 1887; 43 Fed. Reg. 27367 (1978).

104 See 43 Fed. Reg. at 27367 (‘‘Levels in [winding, spool-

ing, twisting, and warping] are currently very low and are

not expected to present a compliance problem”) (citations to

the record omitted).

105 See, e.g., J.A. 2240-41. Thus OSHA acknowledged that

the

industry has had less experience with specific controls

past roving. OSHA recognizes these difficulties and fur-

ther recognizes that increased effort may be necessary

in some instances to achieve compliance with the exposure

limits prescribed for the textile operations. Yet, the evi-

dence in the record demonstrates the feasibility of adopt-

ing dust control principles, proven successful in other

operations, to new stages of the process.

32 Fed. Reg. 27362 (1978). The agency also concluded gen-

erally that “inherent operational] difficulties found in some

operations may require increased effort to reduce dust levels

to 200 ,»g/m*; however, OSHA agrees with RTI’s assessments

and concludes that the vast majority of workplaces will be

able to comply with little difficulty.” Jd. at 27367. (“RTIY’ is

the Research Triangle Institute which completed the “Tech-

nological Feasibility Assessment and Final Inflationary Im-

3 Statement” for OSHA. J.A. 457. See text at note 51

infra.)

40a

Similarly, the PEL set for slashing and weaving oper-

ations apears reasonable in light of the record. The in-

dustry’s own chief witness estimated that 72% of the

weaving operations met the requirement of 750 »g/m*

when studied.’ OSHA also cited a study in the record

that identified three basic approaches to permit com-

pliance by the remaining mills in these operations: (1)

isolating the weaving rooms; (2) separating room vent-

ilation systems; and (3) installing local exhaust ventila-

tion equipment.’

Thus, for each operation of textile manufacturing, the

agency established evidence of present compliance and

existing control measures capable of increasing compli-

ance. The agency therefore concluded that a

combination of specific control measures . . . the

adoption and modification of general dust controls,

and further utilization of technological developments

... already underway, should achieve compliance for

the textile industry.’

The industry objects that OSHA drew unwarranted

generalizations from dust measurements at small num-

bers of plants’ and from expert testimony on general

106 Testimony of Hovan Hocutt, J.A. 3929-3920. Other evi-

dence submitted by the industry suggests that compliance

may be even more widespread for the weaving operations. Of

32 weaving operations studied, 28 were below 750 »g/m', and

no reading was greater than 870 ypg/m*. J.A. 3490-3560. And

these measurements were taken before recent improvements

in dust control. See J.A. 3490-3560.

1077 43 Fed. Reg. 27367 (1978) (summarizing Research

Triangle Institute (RTI) Technological Feasibility Assess-

ment and Final Inflationary Impact Statement, IV-14-16

(1976), J.A. 1, 550-552).

108 43 Fed. Reg. 27362.

109 OSHA’s brief merely cites several instances where dust

levels in [the twisting, winding, spooling and warping]

4la

principles of dust control.'"® We agree that OSHA might

have improved the quality of the record with more ex-

tensive studies at different mills and over different periods

of time.'"' Further study, however, would have added sub-

stantial additional cost and delay to an already costly

and prolonged rulemaking proceeding.'’* Rather than

directing the agency to wait for the best evidence, the

OSH Act requires the agency to develop standards based

upon “the best available evidence.” '** This court will

not require further survey research from the agency

especially where it has made an informed decision to rely

operations are at or below 0.5 mg/m® or 0.2 mg/m’.

None of these references prove, or even suggest, that

the required 0.2 mg/m® either exists on a constant basis

or is being achieved by the application of dust control

equipment.

Textile Reply Br. at 8.

110 Textile Br. at 29.

111 Jt also would have been helpful to the court if OSHA

had more fully delineated the methodological assumptions

underlying some of the studies on which it relied. A more

logical and systematic explanation of the inferences drawn

from studies would have facilitated our review. Nonetheless,

the agency did adequately explain the factual and policy

considerations informing. its judgments.

122The Unions and the North Carolina Public Interest

Research Group filed suit in 1975 to prevent what they con-

tended was unlawful delay in promulgation of the standard.

Amalgamated Clothing & Textile Workers Union, et al. v.

Secretary of Labor, No. 75-2157 (D.C.D.C.). The district

court judge repeatedly admonished the government to prom-

ulgate the standard without improper delay. See Transcript

of Proceedings on June 6, 1978. Secretary of Labor Marshall

makes reference to this suit in his May 24, 1978 “Memo-

randum ... to President Carter Urging Issuance of Cotton

Dust Standard.” 8 BNA Occupational Safety and Health

Reporter 54-55 (June 8, 1978).

8 Section 6(b) (5), 29 U.S.C. § 655(b) (5) (1976).

42a

on other credible sources of information, such as the ex-

tensive expert testimony, written comment and briefs, and

research studies used here.'"*

Indeed, other circuits have upheld permanent health

standards supported by less extensive and persuasive

evidence than that present here. Those courts have up-

held similar OSHA standards that require compliance

with PELs that had never before been attained,"® or that

had been reached only at the “newest, cleanest’’ plants.'"®

Here, OSHA has shown that much of the textile industry

already has demonstrated its ability to comply with the

cotton dust standard. It also points to evidence in the

record that little, if any, technological innovation will be

necessary for compliance to be reached in the entire in-

114 In its “Proposed Standards and Notice of Hearing,”

OSHA said that it

recognizes that many of the matters considered in this

proposal are controversial and that gaps exist in the

available scientific evidence. OSHA believes, however,

that in this case we are dealing with an agent or agents

that are extremely harmful to man. The existence of

unanswered questions cannot be permitted to delay the

process of proposing a standard for protecting workers

exposed to cotton dust, as tens of thousands of workers

are believed to suffer from the effects of exposure. OSHA

hopes that the public participation which is invited will

help to fill whatever gaps exist.

41 Fed. Reg. 56508 (1976).

115 Society of the Plastics Industry, Inc. v. OSHA, 509, F.2d

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

116 American Iron and Steel Inst. v. OSHA, 577 F.2d 825,

833, 834 (3d Cir. 1978), petitions for cert. pending, Nos. 78-

918, 78-919 (upholding OSHA’s standards for coke oven

emissions on the basis of reductions in emission levels at

some plants; concluding that the industry “‘could with some

self-confidence and determination develop ‘their own tech-

nological potentialities’ and achieve a variety of improve-

ments.’’).

43a

dustry.."7 Thus, the agency’s finding of technological

feasibility here is even more persuasive than findings

affirmed in other cases that require the creation of new

technology.

In sum, the agency fairly considered and took account

of objections to its assessment of technological feasibility

for the textile industry.""* The agency linked its deter-

mination to evidence and policy considerations in the

record. We support its judgment.

2. Economic Feasibility

The petitioners concede that OSHA’s estimate of $550

million in capital costs would be economically feasible

for the textile industry, but they claim that OSHA’s es-

timate grossly understates the actual costs the industry

will incur if the standard goes into effect. To evaluate

this claim, we must first consider the accuracy of OSHA’s

cost estimate and then review its feasibility determination.

117 OSHA noted one instance in which technological innova-

tion would assist compliance with the cotton dust standard.

Conversion of mills from traditional “ring” spinning to

“open end” spinning would reduce the dust exposure to

workers, yet, as OSHA acknowledged, ring spinning is not

yet practical for all textile mills. 43 Fed. Reg. 27367 (1978).

The agency concluded that “present general principles of

ventilation control coupled with proven and applied control

strategies” would be sufficient to bring the spinning opera-

tions into compliance, and technological innovation would

simply be encouraged. Id.

118QSHA stated that it found unpersuasive the testimony

of the textile industry’s chief expert witness, Hovan Hocutt.

The agency observed that Hocutt’s experience derived pri-

marily from his knowledge of the opening through roving

operations, while the standards governing the operations of

spinning through weaving gave rise to the most serious

challenges. Further, the agency concluded that Hocutt “seemed

to view each process in isolation and completely and con-

sistently ignored the possibilities of dust control [other than

through local exhaust equipment.]” OSHA Br. at 106, n.84.

44a

a. Accuracy of cost estimates

OSHA derived its cost estimates from two principal

sources: the Research Triangle Institute (RTI) estimates

for the entire textile process '® and industry estimates

for part of the textile process.’ OSHA tried to account

for the divergence between the estimates from these two

sources by exploring the assumptions each employed.’

After examination, the agency decided that both sets of

estimates are overstatements, and chose to rely on what it

regarded the best portions of each estimate.!*

All parties agreed that the largest cost imposed by the

standard is the capital cost of engineering controls.

OSHA found the RTI capital cost figures to be overstated

on several bases.’** OSHA concluded that RTI inappro-

119 Research Triangle Institute, Cotton Dust: Technological

Feasibility Assessment and Final Inflationary Impact State-

ment VI- V-129 & Appendices B, C & D (1976) (prepared

for OSHA) (reprinted at J.A. Vol I at 619-750, 801-995 &

Appendices B, C & D)). See also “Technological Feasibility

and Economic Impact of Regulations for Cotton Dust: Testi-

mony to be Presented by The Research Triangle Institute at

Public Hearing,” (1977) (reprinted at J.A. Vol. II, 1320-80.

120 See Statement of Hovan Hocutt, Senior Vice President

of Engineering Pneumafil Corporation, J.A. Vol. II, 2228-47;

Statement of Arthur Thomas, Senior Vice President, The

Bahnson Company, J.A. Vol. II at 2248-57.

121 See 43 Fed. Reg. 27370-27380.

122 OSHA’s estimate of total compliance costs for the textile

industry is based on the industry estimates for capital costs

and annualized costs, and the RTI estimates for costs of

medical surveillance and other non-capital expenditures. 43

Fed. Reg. 27373 (1978) ; id. at 27380 (Table 3).

123 OSHA also criticized the RTI estimates of annualized

capital costs for failing to take account of the investment

tax credit. Jd. at 27371. The estimates also assumed a high

interest rate, but OSHA found this an acceptable reflection

of the industry’s external financing situation. Thus, OSHA

concluded that the RTI estimates of annualized capital costs

were calculated on a “conservatively high basis.” Jd.

45a

priately included estimates for plants processing blends

between cotton and synthetics.’** Further, OSHA found

that RTI neglected the cost advantages available when

compliance is achieved through moderizing rather than

retrofitting the machinery.'** RTI also assumed industry-

wide compliance with the old standard of 1,000 »g/m*.'*°

Thus, RTI estimated only the incremental cost necessary

to achieve compliance with the new PEL. This estimate

necessarily was inaccurate, as some of the industry had

not yet complied with the old standard, while other plants

already had met the stricter new standard.'** Further,

industry witnesses testified that “substantial amounts of

[recommended] controls are, in fact, in operation.” '*°

OSHA found the industry’s capital cost estimates to

be overstated as well. Like RTI, the industry estimated

only the costs of retrofitting old machines; it did not con-

sider replacing them with new machines that are more

productive and generate less dust.’*® Similarly, the in-

124 OSHA excluded from its final standard equipment pro-

ducing synthetic fibers because it does not generate cotton

dust. Yet such equipment was included in the RTI estimates

for cotton blend plants. 43 Fed. Reg. 27370 (1978). On the

basis of RTI calculations, OSHA found that exclusion of

equipment used to produce synthetics could reduce compliance

costs by as much as 30 percent. Jd. at 27372, 27380 Table I

& n.4; OSHA Brief at 113.

125 43 Fed. Reg. 27370-71 (citing testimony of Dr. Parker

C. Reist that the cost of control declines with more productive,

new machines).

126 Jd. at 27370. The existing standard set the cotton dust

exposure level at 1000 pg/m*. See TAN 27 supra (history

of the standard). ;

127 43 Fed. Reg. 27370.

128 Jd, (testimony of Harold Imbus and Hovan Hocutt).

129 The agency included this statement in its reasons for

concluding that the AMTI estimate was exaggerated:

While OSHA recognizes the validity of estimating com-

pliance costs for retrofit controls, OSHA also recognizes

46a

dustry “may have included some equipment which is

used exclusively for synthetics” and thus inappropriately

included in cotton dust control cost estimates. The

agency also noted that the industry estimates failed to

account for improvements in technology that can reason-

ably be expected during the four-year compliance period.’™

Finding both sets of capital cost estimates in the

record to be exaggerated, the agency chose to rely on

the substantially lower industry estimate. Unlike the RTI

study, the industry’s assessment reflected concrete data

on actual industry dust levels and use of controls.'*

Ironically, it is now the industry that challenges the

accuracy of its own data.’** The textile industry peti-

tioners argue that OSHA’s reliance on the industry’s

capital cost estimate is invalid because it is “wholly

unrelated to the exposure limits set by the Standard.” ™

The industry notes that its $550 million figure was ad-

vanced as the projected capital cost of compliance with

a PEL of 200 ug/m* in opening through roving, 500

y»g/m* in spinning through warping, and 1000 »g/m* in

the existing trend toward replacement of conventional

machines with newer equipment which is more productive

and produces less dust and which would lead to the

prediction of fewer machines to be retrofitted or to be

controlled [.]

43 Fed. Reg. 27372.

130 Jd,

131 Jd.

132 AMTI cost estimates were based on a recent survey it

conducted. 43 Fed. Reg. 27371 (1978). OSHA concluded,

“Since AMTI estimates are based on more recent data, OSHA

believes them to be more realistic than those offered by

[RTI].” Id. at 27373.

133 Textile Brief at 39.

134 Textile Brief at 41.

47a

slashing and weaving.’*® Thus, for spinning through

weaving, the industry’s estimate assumed a PEL require-

ment higher than the ones ultimately adopted—the 200

ug/m* level for spinning through warping and 750 pg/m'

in slashing and weaving. The textile industry contends

that by ignoring this fact, OSHA’s final standard is based

on a grossly understated cost estimate.

OSHA, however, marshals sufficient support and analy-

sis for its decision to use the industry’s capital cost esti-

mate. Contrary to the industry’s claim that this estimate

is “wholly unrelated” to the PELs in the final standard,

OSHA’s technological assessment concluded that little

more than the dust control measures assumed by the

industry would be necessary to achieve the final PEL.'*®

OSHA also explained that even the industry capital esti-

mates were exaggerated because they included some un-

necessary costs.*** Thus, OSHA reasonably viewed the

industry’s figure as an overstated estimate for exposure

levels set slightly higher than those in the agency’s final

standard.

Since the only other available figure was the far less

accurate RTI estimate '** the agency’s ultimate reliance

on the industry’s capital cost estimate is reasonable. The

RTI estimate lacked a basis in the industry’s actual dust

reduction. It also presumed a PEL for weaving and

slashing far lower than the final PEL, which more nearly

135 43 Fed. Reg. 27371, 27380 Table I & n.1 (1978).

136 OSHA Brief at 112 (discussing determination that local

exhaust ventilation would not be necessary for spinning and

twisting operations).

137 See TAN 129 supra.

1388 See TAN 182 supra.

48a

approximated the exposure level and control technology

assumed by the industry.**”

The very nature of economic analysis frequently im-

poses practical limits on the precision which reasonably

can be required of the agency. This is especially the

case where, as here, the industry chooses to withhold

from the agency part of the data underlying the indus-

try’s cost estimates.'*° OSHA’s mandate authorizes it to

promulgate standards on the basis of the “best available

evidence.” '*! We find that OSHA reasonably evaluated

the cost estimates before it, considered criticisms of each,

and selected suitable estimates of compliance costs.'*?

139 OSHA concluded:

Most of the changes from the proposal in this final regu-

lation have cost reducing effects. The principal cost re-

ducing change is the increase in the permissible exposure

level from 200 to 750 p»g/m* for slashing and weaving. In

some cases of control costs this difference in cost as a

result of the higher PEL is not assessed. However, in

other cases of control costs, such as slashing and weaving,

because the need for certain engineering controls and/or

amounts of air and filtration would be changed costs were

shown to be reduced significantly. For this reason OSHA

has adopted the [AMTI] estimate for slashing and weav-

ing which predicted a level of 1,000 »g/m! instead of the

RTI estimate for slashing and weaving at 200 pg/m’*.

43 Fed. Reg. 27371 (1978).

140 The industry declined to give the agency access to its

survey data or its detailed estimation methodology. 43 Fed.

Reg. 27373; OSHA Brief at 113. This impaired the agency’s

ability to construct more accurate cost estimates once it found

both the industry and RTI estimates inaccurate.

141 29 U.S.C. § 655(b) (5) (1976).

142 See note 132 supra. OSHA decided to rely on the RTI

estimates for the cost of non-engineering provisions, such as

monitoring workers’ health and providing respirators as

needed. 43 Fed. Reg. 27372 (1978). OSHA considered these

49a

b. Feasibility of compliance costs

The actual test for economic feasibility has yet to be

fully developed by the courts.'** This court has suggested

that the costs cannot be “prohibitively expensive” for

Congress would not have intended OSHA to make “‘finan-

cial viability generally impossible’ for a regulated in-

dustry.’

Here, the agency had evidence in its record that the

industry would be able to pass compliance costs on to

consumers.'*® Although the record also contained testi-

mony suggesting that older and smaller firms might bear

a disproportionate financial burden,'** it does not support

the industry’s claim of infeasibility. Even if a few

firms are forced to shut down, the standard is not neces-

sarily economically infeasible. As this court observed in

Industrial Union,

It would appear to be consistent with the purposes of

the Act to envisage the economic demise of an em-

ployer who has lagged behind the rest of the industry

in protecting the health and safety of employees and

estimates to be overstated because they failed to account for

compliance with these provisions in some plants prior to the

standard, id. at 27372-73, but as the industry offered little

evidence on non-engineering costs, OSHA reasonably relied

on the RTI estimates.

143 Berger & Riskin, Economic and Technological Feasibil-

ity in Regulating Toxic Substances Under the Occupational

Safety and Health Act, 7 ECOLOGY L. Q. 285, 285-86 (1978).

144 Industrial Union Department v. Hodgson, 499 F.2d 467,

478 (D.C. Cir. 1974).

145 43 Fed. Reg. 27370 (RTI assumed that costs of compli-

ance will be passed on).

146 Td. at 27377-78 (citing testimony of Arthur Figh, Vice

President, Chase Manhattan Bank).

50a

is consequently financially unable to comply with

new standards as quickly as other employers.’*’

Here the agency expressly concluded “that although some

marginal employers may shut down rather than comply,

the industry as a whole will not be threatened by the

capital requirements of the regulation.” '**

Of course, the agency’s underlying cost estimates are

not free from imprecision. Nonetheless, on reviewing

the record we believe that OSHA -fairly considered all

the economic data submitted before constructing its esti-

mates. The agency responded to significant criticisms of

the cost estimates it used, and explained the economic

impact it projected for the textile industry. As a result,

this court is satisfied that OSHA has substantial support

in the record for its cost estimates and findings of eco-

nomic feasibility for the textile industry. The position

of the union petitioners on this issue ™® buttresses

147 Industrial Union Department v. Hodgson, 499 F.2d 467,

478 (D.C. Cir. 1974).

148 43 Fed. Reg. 27378 (1978). Further, alleged changes in

the market structure of the industry do not signify economic

infeasibility especially here, where the agency observed that

textile manufacturing already tends toward increasing con-

centration. Jd.

149 In Industrial Union, this court observed that “Congress

does not appear to have intended to protect employees by put-

ting their employers out of business.” 499 F.2d at 478. The

Union here submits that its support of the cotton dust stand-

ard “demonstrates that it will have no such result.” Union

Reply Brief at 25. See American Iron and Steel Institute v.

OSHA, 577 F.2d 825, 836-37 (5th Cir. 1978), petitions for

cert. pending, Nos. 78-911, 78-1036 (court attaches signifi-

cance to Union support in determining economic feasibility

of OSHA standard).

Sla

OSHA’s conclusion that the standard will not put the

industry out of business.’

3. Cost-Benefit and Cost-E ffectiveness Analysis

Industry petitioners would have this court impose an

additional constraint on OSHA’s authority to determine

standards. They claim that under the feasibility require-

ment, OSHA must demonstrate that “the benefits of the

standard are in proportion with the costs which it im-

poses.” '*' This amounts to a claim that no standard

may be promulgated under section 6(b) (5) of the Act

absent a formal cost-benefit analysis.’ The industry

169 The Union’s assessment is not, however, determinative

of the entire standard’s economic feasibility. We must reject

the Union’s contention that the 750 »g/m* PEL which OSHA

set for slashing and weaving operations must be remanded

because it is not the lowest feasible exposure level. See Union

Brief at 42. The record contains dose-response data showing

reduced symptoms of byssinosis in the weaving area. 43 Fed.

Reg. 27360 (1978) (discussing J.A. 218, 247, 361). OSHA

determined that the presence of sizing in the weaving rooms

tends to dilute the cotton dust and therefore allows for a

greater permissible exposure level. Further, the technological

obstacles to achieving a 200 »g/m* PEL in the weaving area

pose extreme compliance costs. Meeting these costs would

impede the industry’s ability to achieve the 200 .g/m® level

where it is more essential—in the opening through warping

operations. I/d.; see J.A. 2241-43. Thus, the agency reason-

ably adopted a higher PEL in slashing and weaving to permit

compliance in the earlier stages of textile manufacturing

where the dust exposure poses a more serious threat to health. °

151 Textile Brief at 53. In the industry’s view, OSHA’s fail-

ure to evaluate costs against benefits renders the agency’s

finding of economic feasibility invalid. Jd. Similar arguments

are made by National Cotton Counsel of America (NCCA),

see NCCA Supplemental Brief at 15-16, and the petitioners

from nontextile industries, see Nontextile Brief at 62-64.

152 Cost-benefit analysis involves calculating the costs and

benefits of various programs to compare their net present

52a

similarly argues that OSHA must justify the expense

imposed by its standard by comparing it with the in-

dustry’s proposed alternative.’™

OSHA agrees that a systematic evaluation of costs

and benefits is to be encouraged within the limits of

available estimation techniques,’ yet it contends that

such analysis is not required. OSHA argues that the OSH

values. E. QUADE, ANALYSIS FOR PUBLIC DECISIONS 26-27

(1975). A study by The National Academy of Sciences con-

cluded that cost-benefit analysis

is not a rule or formula which would make the decision

or predetermine the choice for the decision maker. Rather,

it refers to the systematic analysis and evaluation of al-

ternative courses of action drawing upon the analytical

tools and insights provided by economics and decision

theory. It is a framework and a set of procedures to help

organize the available information.

NATIONAL ACADEMY OF SCIENCES, DECISION MAKING FOR

REGULATING CHEMICALS IN THE ENVIRONMENT 39 (1975)

(report prepared by National Research Council).

153 Textile Brief at 54, 56 (citing section 3(8) of the Act,

29 U.S.C. §652(8) (1976)). Essentially, petitioners here

claim that the agency should have conducted an analysis of

the cost-effectiveness of both the agency’s dust control strategy

and the industry’s proposed alternative. In contrast to cost-

benefit analysis, cost-effectiveness is only used to compare

alternatives for reaching the same goal. Like cost-benefit,

cost-effectiveness analysis often raises intractable problems in

obtaining the requisite measures that enable comparison.

QUADE, supra note 152 at 25-28. Although the two kinds of

analysis differ, the petitioners raise essentially the same claim

with each one: they ask us to find OSHA’s failure to employ

these methods a fatal flaw in its proceedings.

154 43 Fed. Reg. 27378 (1978). The agency noted that “al-

though the benefits of the standard cannot rationally be quan-

tified in dollars, OSHA has given careful consideration to the

question of whether these substantial costs are justified in

the light of the hazards of exposure to cotton dust.” Jd. at

27379.

53a

Act constrains its regulation of dangerous substances

“only by the limits of feasibility.” * We agree. We also

find that no additional constraint is imposed by the Act’s

definition of a health or safety standard as “reasonably

necessary or appropriate to provide safe or healthful em-

ployment.” '** The language of the Act and the clear

intention of Congress permit no other conclusion.

Other statutory schemes explicitly require such par-

ticular kinds of analysis. In the Clean Air Act, for

example, Congress required the Environmental Protec-

tion Agency to perform a “cost benefit analysis” before

prohibiting the manufacture or sale of a fuel or fuel

additive which endangers public health or welfare.’™

Some Congressional Acts require a showing of “unreason-

able risk” prior to regulation.*** The legislative histories

of these acts have led the courts to construe this pro-

vision to require regulatory agencies to balance costs

and benefits of proposed action.’

185 Td. at 27378.

186 29 U.S.C. § 652(8) (1976).

187 42 U.S.C. § 1857f-6c(c) (2) (B) (1976). See also Federal

Environmental Pesticide Control Act of 1972, 7 U.S.C. § 136

(bb) (1976) (determining “unreasonable risk to man or the

environment” includes consideration of “economic, social, and

environmental costs and benefits of the use of any pesticide’).

188 F.g., Federal Hazardous Substances Act, 15 U.S.C.

§ 1261s (1976) (article is mechanical hazard if it presents

“unreasonable risk of personal injury or illness”); Consumer

Products Safety Act, 15 U.S.C. § 2058(c)(2)(A) (1976)

(rule must be “reasonably necessary to eliminate or reduce

an unreasonable risk of injury”); Toxic Substances Control

Act, 15 U.S.C. § 2605(a) (1976) (requirements may be im-

posed if chemical presents “unreasonable risk of injury to

health or the environment”).

158 F’.9., Forester v. Consumer Product Safety Comm’n, 559

F.2d 774, 789 (D.C. Cir. 1977) (footnote omitted) :

The requirement that the risk [posed by mechanical haz-

ards] be “unreasonable” necessarily involves a balancing

54a

In the OSH Act, in contrast, Congress itself struck

the balance between costs and benefits in the mandate to

the agency. Section 6(b)(5) unequivocally mandates

OSHA to

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.'®

Thus Congress concluded that the benefits of health pro-

tection warranted the expense of an effective standard.'"

test like that familiar in tort law: The regulation may

issue if the severity of the injury that may result from

the product, factored by the likelihood of the injury, off-

sets the harm the regulation itself imposes upon manu-

facturers and consumers.

See also Aqua Slide “N” Dive v. Consumer Product Safety

Comm’n, 569 F.2d 831, 839, 844 (5th Cir. 1978) (using For-

ester balancing test definition for “unreasonable risk’’) ; id.

at 845 (Wisdom, J., concurring) (requiring substantial evi-

dence for Commission’s cost-benefit analysis) .

As OSHA points out, when Congress wishes to require

cost-benefit analysis, it does so explicitly; when it wishes a

feasibility constraint instead, it so states. See OSHA Brief

at 121 n.96 (citing legislative history of Mine Safety and

Health Amendments of 1977, where Congress rejected amend-

ments that would insert cost-benefit analysis).

160 99 U.S.C. § 655(b) (5) (1976) (emphasis added).

161 Senator Eagleton, for example, stated during floor de-

bates on the Act that

The Costs that will be incurred by employers in meeting

the standards of health and safety to be established under

this bill are, in my view, reasonable and necessary costs

of doing business. Whether we, as individuals are moti-

vated by simple humanity or by simple economics, we

can no longer permit profits to be dependent upon an

unsafe or unhealthy workplace.

LEGIS. HIST. at 1150-51 (from the Congressional Record,

Senate, Dec. 16, 1970).

55a

In the legislative debates on the Act, Senator Yarborough

who sponsored the bill responded in no uncertain terms

to the claim that the proposed en would be too

expensive :'™

We are talking about people’s lives, not the indif-

ference of some cost accountants. ... We are talking

about assuring our American workers who work with

deadly chemicals that when they have accumulated

a few years seniority they will not have accumulated

lung congestion and poison in their bodies, or some-

thing that will strike them down before they reach

retirement age.’*

In contrast to the Acts for which Congress contemplated

a cost-benefit requirement, the legislative history of the

OSH Act contains no reference to this kind of economic

analysis.’™

162 Senator Yarborough preceded the statement quoted in

text with this comment:

[W]hen Congressman O’Hara and I introduced into the

House and Senate the first comprehensive occupational

health and safety bill, we drew the critical fire of several

organizations who claim that legislation of this type is

too expensive.

One may well ask too expensive to whom? Is it too

expensive for the company who for lack of proper safety

equipment loses the service of its skilled employees? Is

it too expensive for the employee who loses his hand or

leg or eyesight? Is it too expensive for the widow trying

to raise her children on meager allowance under work-

man’s compensation and social security? And what about

the man—a good hard-working man—tied to a wheel

chair or hospital bed for the rest of his life? That is what

we are dealing with when we talk about industrial safety.

LEGIS. HIST. at 510.

163 Jd. (emphasis added).

164 Instead, Congress anticipated severe costs from the

health and safety standards and provided a program of loans

56a

Instead, Congress determined in the OSH Act that any

severe risk to employee health must be eliminated or

reduced if feasible means to do so exist.1* This calls for

a two-step analysis by the agency: (1) determining

whether health impairment is threatened by the suspect

substance, and (2) determining whether the selected

strategy is to protect workers from this risk both tech-

nologically and economically feasible. Nothing in the stat-

ute or its legislative history requires a further determi-

nation that the costs of the standard bear a “reasonable”

relationship to its benefits,"°* Nor may this court impose

to smal] businesses seriously affected by OSHA standards.

See section 28 of the Act (amending section 7(b) of the

Small Businesses Act, 15 U.S.C. § 636 (1976) ); Cong. Record

(Senate) (Nov. 17, 1970), LrGIS. HIST. at 525-26 (remarks

of Sen. Dominick).

‘65 The House Report concluded:

Even the price of one life is too expensive when a mean-

ingful occupational safety and health law could save

many lives. ... The well-being of every American work-

ing man and woman is an essential human right which

we can no longer deny.

H.R. Rep. No. 91-1291, 91st Cong., 2d Sess. 35 (1970),

reprinted in LEGIS. HIST. at 865.

166 Petitioners mistakenly believe that cost-benefit or cost-

effectiveness analysis is mandated by the ‘“‘reasonably neces-

sary or appropriate” language in the Act’s definition of health

and safety standards. In another context, this court con-

strued the familiar ‘“‘necessary or appropriate” provision as

authorizing ‘‘an agency to use means of regulation not spelled

out in detail, provided the agency’s action conforms with

the purposes and policies of Congress and does not contravene

any terms of the Act.”’ Niagara Mohawk Power Corp. v. FPC,

379 F.2d 158, 158 (D.C. Cir. 1967). In this light, the ‘‘rea-

sonably necessary or appropriate” language grants OSHA

considerable discretion in adopting protective strategies to

guard against particular health risks. While cost-benefit and

cost-effectiveness analyses are techniques that can assist

evaluations of such strategies, they are not required by the

Act’s provisions.

57a

additional procedural requirements.’ Indeed, the only

authorities cited by petitioners are not binding on this

circuit,’ and in any event, they are not persuasive in

this context.’

167 Under the Supreme Court’s decision in Vermont Yankee

Power Corp. v. Natural Resources Defense Council, 435 U.S.

519, 524 (1978), this court may not require OSHA to conduct

cost-benefit analysis unless the agency or Congress officially

requires this procedure. Such analysis is certainly not man-

dated in explicit terms by the statute. Nor is it implicated in

the extra-statutory procedures OSHA followed in promulgat-

ing the cotton dust standard. See TAN 54-55 supra (discus-

sing OSHA’s additional procedures); Judicial Review of

Informal Rulemaking Procedure: When May Something More

Formal Be Required?, 27 AM. U. L. REV. 781, 811 (1978).

168 Petitioners rely on Turner Co. v. Sec’y of Labor, 561

F.2d 82 (7th Cir. 1977) (noise abatement enforcement ac-

tion) and three cases of another circuit, American Petroleum

Institute v. OSHA, 581 F.2d 4931 (5th Cir. 1978), cert.

granted, 47 U.S.L.W. 3554 (Feb. 20, 1979) (Nos. 78-911, 78-

1036); Aqua Slide “N” Dive Corp. v. Consumer Product

Safety Commission, 569 F.2d 831, 844 (5th Cir. 1978)

(swimming pool slides); and Florida Peach Growers Ass’n

v. Dep’t of Labor, 489 F.2d 120 (5th Cir. 1974) (pesticide

residue). See Textile Brief at 37-38, 53-59.

This court, however, is bound by its construction of the

feasibility requirement in Industrial Union Department v.

Hodgson, 499 F.2d 467, 477-78 (D.C. Cir. 1974) (asbestos

dust), which has been adopted in American Iron & Steel

Inst. v. OSHA, 477 F.2d 825, 835-36 (3d Cir. 1978) (coke

oven emissions), petitions for cert. pending, Nos. 78-918,

78-919; AFL-CIO v. Brennan, 530 F.2d 109 (3d Cir. 1975)

(revoking rule against permitting any workers’ hands in

machine dies). See TAN 92-94 supra.

169 Petitioners’ reliance on American Petroleum, supra, is

especially unpersuasive. The Fifth Circuit there based its

holding on its earlier interpretation of an entirely different

statutory scheme in Aqua Slide “N” Dive Corp. v. Consumer

Product Safety Commission, supra. Aqua Slide involved the

Consumer Products Safety Act, 15 U.S.C. § 2058(c) (2) (A)

(1976), which employs the “unreasonable risk” language

58a

Further, cost-benefit analysis would not necessarily

improve agency health and safety determinations.’

These techniques require the expression of costs, benefits

and performance in often arbitrary, measureable terms.’™

They may hide assumptions and qualifications in the

that courts have construed to require a balancing test. See

n.158 supra. No such language appears in the OSH Act pro-

visions under which the cotton dust standard was issued.

Congress apparently drew the sensible conclusion that con-

sumers often may be in a better position than workers to

estimate and avoid risks. Petitioners’ view that the “rea-

sonably necessary or appropriate” language requires cost-

benefit analysis, Textile Brief at 55, is similarly misguided.

See TAN 156 supra.

Finally, petitioners mistakenly rely on two more cases

from other circuits that have little relevance to this case.

Florida Peach Growers Association v. Dep’t of Labor, supra,

concerned the issuance of emergency standards under § 6(c)

of the Act, 29 U.S.C. §)655(c) (1976). Turner Co. v. Sec’y

of Labor, supra, similarly is inapposite. It involved the appeal

of an enforcement proceeding against a single manufacturer

under an existing noise standard. Although requiring a cost-

effectiveness analysis by the agency the Seventh Circuit in

Turner Co. explicitly endeavored to distinguish the noise

regulated in that case from other hazards that pose “serious

debilitating threats.” Id. at 86. Just such a serious risk is

posed by cotton dust exposure.

170 See P. Schuck, Regulation: Asking the Right Questions,

11 NAT’L J. 711, 711 (1979) :

Cost-benefit analyses are also invariably flawed. The rea-

sons for this are well-known: the difficulty of identifying

and quantifying many costs and benefits; the inevitably

arbitrary nature of valuations of human life or health;

. . . the problem of interpersonal and intergenerational

comparisons of utility; and many others.

171 The National Academy of Sciences report, supra at 39-

44, identifies this measurement problem and the general diffi-

culty of estimating uncertain effects as serious shortcomings

of cost-benefit analysis. For a similar view, see QUADE, supra

at 25-26.

59a

seeming objectivity of numerical estimates. Especially

where a policy aims to protect the health and lives of

thousands of people, the difficulties in comparing widely

dispersed benefits with more concentrated and calculable

costs may overwhelm the advantages of such analysis.’

OSHA considered the alternative proposed by the in-

dustry and found it inadequate to protect against the

health risk at issue. We recognize that the agency’s

control strategy is costly. But it is the result of long

and comprehensive investigation by the agency assisted

by extensive public participation.‘% We find that the

health risk posed by cotton dust warranted agency ac-

tion, and that the final standard chosen by the agency is

technologically and economically feasible for the textile

industry within the meaning of the Act.’

IV. NON-TEXTILE INDUSTRIES

In the final standard, OSHA set a permissible ex-

posure level of 500 »g/m* for all non-textile industries

covered by the standard.’ Three such industries here

172 Not only are the benefits of the regulation dispersed

over thousands of people, they are also spread over lifetimes.

The delayed effect of cotton dust exposure causes one of the

difficulties in estimating its harm. In directing OSHA to

promulgate standards on the basis of the “‘best available evi-

dence,” 29 U.S.C. § 655(b) (5) (1976), Congress wished to

avoid administrative paralysis caused by experts’ debates.

H.R. No. 91-1291, 91st Cong., 2d Sess. 18 (1970), Legis.

Hist. at 848. Certainly, it would not have wanted adminis-

trative paralysis caused by debate over a standard’s cost and

benefits.

178 See TAN 80-34 supra.

174 See TAN 97-150 supra.

17543 Fed. Reg. 27360, 27395 (1978) (§ 1919.1043(c) (3) )

(standard for all workplaces except yarn manufacturing and

slashing and weaving).

60a

challenge the standard:'"* (1) the cottonseed oil mills,

which process cottonseed and its byproducts; (2) the

cotton warehouses, which store raw, baled cotton; and

(3) the classing offices, which classify samples of cotton

fiber.?77

The non-textile petitioners claim that OSHA failed

to establish that their workers risk material health im-

pairment and that the PEL set for these industries is

arbitrary. Further, they claim that the standard is in-

feasible on both technological and economic grounds.

A. Health Risks and Permissible Dust Exposure

Petitioners do not dispute that their employees are

exposed to cotton dust,’’* often at higher levels than in

textile mills. They assert, however, that the work

processes, dust composition, and worker exposure to dust

in nontextile industries differ significantly from the

textile industry.’ In this way, petitioners seek to chal-

lenge OSHA’s general position that exposure to cotton

176 See also note 1 supra.

177 Non-Textile Brief at 4. OSHA explained that the

standard applies to

all non-textile industries including but not limited to:

warehousing, compressing of cotton lint, classing and

marketing, using cotton yarn (i.e., knitting), reclaiming

and marketing of textile manufacturing waste, delinting

of cottonseed, marketing and converting linters, reclaim-

ing and marketing of gin motes and batting, yarn felt

manufacturing using waste cotton fibers and by products.

43 Fed. Reg. 27360 (1978).

178 Instead, petitioners argue that the composition of the

dust in their workplaces differs from the dust in textile mills,

Non-Textile Brief at 34-38.

179 F.9g., Non-Textile Brief at 33.

6la

dust poses a serious hazard to workers regardless of

where the dust is encountered.'!*

The exact nature of the health hazard posed by cotton

dust remains subject to medical debate.’*! The agency

had before it conclusive evidence that dust found in textile

mills causes debilitating disease; '** it also had some evi-

dence of related, though less severe, health impairments

among workers in nontextile industries.’ Although pe-

titioners point to differences among the industries,

OSHA’s mandate requires it ot protect workers in all

industries."** We find that OSHA fulfilled this mandate

by reasonably relying on medical evidence from the tex-

tile industry ’* and evidence of health impairments

180 See 43 Fed. Reg. 27360-61 (1978).

181 Petitioners claim that the bract and leaf-like trash is the

element in cotton dust most likely to cause disease. Non-

Textile Brief at 34. On this theory, petitioners attempt to

distinguish the dust in their industries from the dust in the

textile mills. Jd. at 35-39. In so doing, petitioners rely on

some studies that were not in the rulemaking record, id. at 34

n. 108, and ignore others actually in the record that contra-

dict their conclusion, see, e.g., J.A. 12.1 (Dr. Bouhuys). The

agency fully explains the nature of the debate. 43 Fed. Reg.

27354 (1978). This court will not reach beyond the record

to displace the agency’s judgment that conclusive evidence is

not yet available to isolate the causal agent.

182 See Part III supra.

183 F.g., Report on the Evaluation of Respiratory Effects of

Cottonseed Dust Inhalation (1976) (Jones & Weill study),

J.A. 408-35 (acute broncho-constrictor effect in cottonseed oil

mill employees); Testimony of Dr. Martin Barman, J.A.

2$72 (1978) (pulmonary function decrements in warehouse

employees).

184 29 U.E.C. § 655(b) (5) (1976).

185 Courts have approved OSHA’s extrapolations from evi-

dence of carcinogens in one industry to another, related in-

dustry, e.g., Soc’y of Plastics v. OSHA, 509 F.2d 1301, 1810

62a

among nontextile workers.’ The differences in the in-

dustries that were cited by petitioners do not undermine

the agency’s determination.

(2d Cir. 1975) (fabricators of products using PVC resins).

This court has permitted an agency to draw on studies of one

carcinogent to regulate another, related substance. EDF v.

EPA, 578 F.2d 638, 83-85, (D.C. Cir. 1978) (approving extra-

polation from knowledge about highly chlorinated poly-

chlorinated biphenyls (PCBS) to less chlorinated PCBs).

Petitioners claim that this case is inapplicable here because

the court relied on the “ample margin of safety” section

307(a) of provision in Federal Water Pollution Control Act

Amendments of 1972. 33 U.S.C. §1317(a) (1976). Non-

Textile Reply Brief at 16-17. For the purposes of permitting

extrapolations, OSHA’s duty to ensure that “no employee will

suffer material impairment of health,” 29 U.S.C. § 655 (b) (5),

is no less protective than the “ample margin of safety” pro-

vision. Further, deference to agency expertise and recogni-

tion of administrative feasibility also contributed to this

court’s approval of the agency’s use of inference and extra-

polation in EDF v. EPA. Id. at 46-48. These considerations

apply with equal force here. See also American Federation

of Labor v. Brennan, 530 F.2d at 115 (reviewing court does

not sit to determine “scientific superiority” of agency’s extra-

polations).

186 OSHA pointed to foreign studies of severe health im-

pairments in nontextile industries, e.g., Noweir, et al., Ex-

posure to dust in the Cottonseed Oil Extraction Industry, 19

ARCH. ENVIRON. HEALTH 99 (1969), J.A. 3210 (byssinotic

symptoms in 35 out of 110 cottonseed oil mill workers) ;

Barnes & Simpson, Ventilary Capacity Changes on Expsoure

to Cotton Dust, MED. J. OF AUSTRALIA, 897 (May 25, 1968),

J.A. 3218 (chest tightness and wheezing among workers in

delinting and cottonseed storage industries). Petitioners criti-

cize OSHA’s reliance on these studies because the foreign

plants differ from domestic ones. J.A. 3319; Non-Textile

Brief at 23-26.

OSHA also had evidence of lung impairments in domestic

nontextile industries, but generally these effects were less

severe. (E.g., Statement of Dr. K. D. McMurrain, J.A. 2719.

(reviewing Jones and Weill Study of cottonseed oil mills).

63a

The agency did acknowledge that health effects in

the nontextile industries appear to be less prevalent and

less severe than in the textile mills,’ but concluded that

the individual nontextile workers still run the risk of

' material health impairment. The agency reasoned that

high worker turnover and movement in the workplace,

rather than a lesser risk from exposure to dust, may

explain the less severe aggregate pattern of disease.'®*

We find no reason to disturb this judgment in favor of

the more dubious conclusion that the nontextile work-

ers are not endangered.

Moreover, the agency took account of the pattern of

health effects when it raised the final PEL for the non-

textile industries to 500 »g/m* from the proposed 200

pg/m* level.’ The agency fairly concluded that the in-

dustries’ data lent guidance to the permissible dust ex-

posure level, but did not cast doubt on the agency’s evi-

dence of health risks to nontextile workers.”

187 43 Fed. Reg. 27361 (1978).

188 Jd. (citing Statement of Phillip J. Wakelyn, National

Cotton Council of American, J.A. 2698-2704, and other testi-

mony in the record).

189 43 Fed. Reg. 27355 (1978).

1# Jd. The industry challenges the PEL as arbitrary. OSHA

admits that “in the absence of detailed dose-response data, the

risk to workers from cotton dust generated in many segments

of the non-textile industry cannot be precisely defined.” Jd.

Yet OSHA’s mandate calls for standards “expressed in terms

of objective criteria and of performance desired” whenever

practicable. 29 U.S.C. § 655(b) (5) (5) (1976). To this end,

the agency reasonably selected the PEL of 500 »g/m*. The

agency explained that this level for only respirabie dust is

roughly equivalent to the pre-existing theshold limit of 1.0

mg/m? of total dust. 43 Fed. Reg. 27361 (1978). See TAN

24-26 supra. Although expressing reservations, Merchant

suggested 600 »g/m* as “not an unreasonable approach”

pending further study. Tr. 1297, J.A. 3696. We agree.

64a

OSHA thus explained the evidence it used, the rea-

sons for its conclusions, and its responses to the in-

dustries’ evidence and objections. When agencies are

entrusted with regulating risks on the frontiers of scien-

tific and medical knowledge, we cannot ask for more.’

Petitioners nevertheless argue that we should find it

arbitrary and unreasonable for OSHA to set the standard

before NIOSH completes its study of the nontextile in-

dustries.'** Certainly, OSHA should take advantage of

the ongoing research of NIOSH and other major in-

quiries into occupational health and safety. But by law,

OSHA need not wait for NIOSH recommendations before

protecting against occupational health risks.’** Nor are

191 See Amoco Oil Co. v. EPA, 501 F.2d 722, 741 (D.C.

Cir. 1974):

Where . . . the regulations turn on choices of policy, on

an assessment of risks, or on predictions dealing with

matters on the frontiers of scientific knowledge, we will

demand adequate reasons and explanations, but not “find-

ings” of the sort familiar from the world of adjudication.

In Soce’y of Plastics v. OSHA, 509 F.2d at 1808, the Second

Circuit observed that “though the factual finger points, it

does not conclude.” Nonetheless, the court concluded that

OSHA is authorized “‘to act even in circumstances where ex-

isting methodology or research is deficient.” Jd.

192 Non-Textile Brief at 42-44; Non-Textile Reply Brief at

10-14. Petitioners cite a NIOSH statement that identifies the

limitations existing studies on non-textile cotton dust exposure.

Non-Textile Brief at 42-44 (citing NIOSH Supporting State-

ment: Characteristics of Byssinosis in Segments of the Cot-

ton Industry—Mattresses and Cotton Matting, Cottonseed Oil,

Waste Recyclers, Cotton Warehousers and Cotton Classifica-

tion Officers, J.A. 3036). NIOSH’s criticisms were written to

justify its decision to study the area, not to dispute the health

risk posed by cotton dust in the non-textile industries.

193 29 U.S.C. § 655(b) (1976). Indeed, the Secretary may

initiate the regulatory process on the basis of information

submitted in writing to him by any interested person. 29

65a

such recommendations conclusive.™ A legitimate chal-

lenge to a health and safety standard can be raised as

new data emerges,’ but OSHA did not exceed its au-

thority by regulating as soon as it knew of the risks of

material health impairment from dust exposure.’

B. Feasibility

Judgments about the technological capabilities and fi-

nancial positions of the industries affected by the stand-

U.S.C. § 655(b) (1). OSHA is to base its standards on the

“latest available scientific data in the field,’”’ 29 U.S.C. § 655

(b) (5), but it is not required to wait for data that is not yet

available.

1% NIOSH was created to assist OSHA in carrying out its

general purposes and in fulfilling the research and training

provisions of the statute. 29 U.S.C. § 671 (1978). This court

determined that OSHA must consider all information made

available by interested parties and experts, so determinations

of NIOSH are only one factor in OSHA’s deliberations. 499

F.2d at 476-77.

195 An agency has a duty to revise its standards in light of

new information. See Public Service Comm’n v. FPC, 511

F.2d 338 (D.C. Cir. 1975). OSHA has commendably com-

mitted itself to reviewing the standard it set for cotton gins

“at the end of five years, or earlier if sufficient evidence of the

need for a specific exposure limit is presented.” 43 Fed. Reg.

27424 (1978) (standard to appear at 29 C.F.R. § 1910.1046,

1928.21). It would seem advisable for it to undertake a simi-

lar commitment for the non-textile standard at issue here.

19%6 There seems no limit to petitioners’ claim that OSHA

has to wait for a pending study before promulgating the

standard. After that study, there would always be another

study, and then another, that could be deemed necessary con-

tribution to the regulation. Congress did not intend OSHA to

“be paralyzed by debate surrounding diverse medical opinion.”

H.Rep. 91-1291, 91st Cong., 2d Sess. at 18 (1970), reprinted

in LEGIs. Hist. at 843. Rather, at OSHA concluded in this

instance, “[p]rotection of employees cannot await resolution

of all the points of scientific debate.” 48 Fed. Reg. 27355

(1978).

66a

ard depend on the evidence for each one, so we examine

evidence on the warehouse, classing office, and cotton-

seed oil mill industries.

1. Warehouses and Classing Offices

The warehousing industry dc 3 not dispute the feasi-

bility of the standard. Indeed, OSHA determined that

most warehouses are already in compliance with the

standard now that the final PEL for that industry has

been raised to 500 »g/m*.’* For those portions of the

industry not in compliance, the record indicates that im-

proved ventilation and housekeeping will adequately as-

sure compliance.'**

OSHA also reasonably concluded that most classing

offices '*** are “substantially in compliance” with the 500

ug/m*? PEL. Where dust control is necessary, the rec-

19743 Fed. Reg. 27368 (1978); J.A. 2961 (Statement of

Phillip Wakelyn) ; J.A. 3008 (Nat’l Cotton Council of Ameri-

ca, Economic Impact of OSHA’s Proposed Cotton Dust Stand-

ard on Cotton Warehouses, 1977) (hereinafter cited as NCCA

Warehouse Study). The industry and the agency both calcu-

lated exposure levels on a time-weighted basis, that is, aver-

aged over a work day, because workers move in and out of

dusty areas over the course of a day. NCCA Warehouse

Study, J.A. 3010; Statement of Phillip Wakelyn, J.A. 2962;

43 Fed. Reg. 27395 (1978) (§ 1910.1043(c) (3) ).

198 See 43 Fed. Reg. 27368; NCCA Warehouse Study, J.A.

3009-11.

199 Classiag offices classify grades of raw cotton by examin-

ing small samples. See TAN 177 supra.

200 43 Fed. Reg. 27362 (1978). This finding is supported in

the record. See J.A. 2339-40 (Hodgkins, Dep’t of Agricul-

ture, Control of Dust Levels in Cotton Classing Offices). As in

warehouses, dust exposure in classing offices is calculated on

a time-weighted basis. J.A. 3132 (Statement of American

Cotton Shippers Association); 43 Fed. Reg. 27395 (1978)

(§ 1910.1043(c) (3)).

67a

ord supports OSHA’s finding that minor ventilation modi-

fications can effectively reduce dust exposure in classing

offices to the requisite level.”

Thus we uphold the agency’s finding that dust control

is both technologically and economically feasible for ware-

housing and classing offices. These two industries claim,

however, that non-engineering controls required by

OSHA—medical surveil'ance and provision of respirators

—will impose burdensome and unjustified costs.7°? Con-

gress itself rejected this claim. It authorized the agency

to regulate even if industries become financially bur-

dened,*® so long as the burden is not “prohibitively ex-

pensive.” ** OSHA need not “justify” its health and

safety standards through a cost-benefit analysis * as the

petitioners imply. Rather, OSHA must simply establish

the risk of material health impairment and demonstrate

the economic and technological feasibility of its standard

for the regulated industries.** We hold that it has satis-

fied these requirements for the warehousing and classing

office industries.

201 See 43 Fed. Reg. 27368 (1978) ; J.A. 2339-40 (Hodgkins,

Dep’t of Agriculture, Control of Dust Levels in Cotton Class-

ing Offices).

202 Non-Textile Brief at 60-62. As these petitioners main-

tain that OSHA failed to demonstrate a material health

hazard in either the warehousing or classing office industries,

they argue that the costs of complying with the standard are

“completely unjustified.” Jd. at 63.

208 See TAN 93-99 supra.

204 Industrial Union Dep’t v. Hodgson, 499 F.2d 467, 478

(D.C. Cir. 1974).

205 See TAN 155-74 supra.

206 See TAN 166 supra.

68a

2. Cottonseed Oil Mills

Perhaps the most hotly contested aspect of the stand-

ard is its feasibility for the cottonseed oil industry.

OSHA admits that considerable effort will be required

for this industry to comply with the standard. We find

that OSHA has adequately demonstrated the technologi-

eal feasibility of the standard for this industry, but

the record does not sufficiently establish its economic

feasibility.

First, the record does sufficiently support the agency’s

conclusion that existing methods of dust control will

permit compliance with the dust exposure level set for

this industry. OSHA relied in part on evidence of dust

control techniques already effective in related indus-

tries. It also found support in the industry’s own

theoretical study that was designed as if the authors

“were consulting engineers given the task of lowering

dust levels in a typical cottonseed oil mill to the lowest

feasible level.” *°* As that study was commissioned by

the industry in response to the proposed 200 y»g/m*

PEL,” we find no reason to disturb the agency’s judg-

207 Ventilation, enclosure of dusty areas, use of modern

equipment, and placement of hoods over particularly dusty

machinery are techniques used in other industries that OSHA

found applicable to the cottonseed oil mills. 43 Fed. Reg.

27369 (1978). See J.A. 1490 (Baier Statement) ; 2741 (Par-

nell Statement).

208 OSHA relied on a theoretical study conducted by Dr.

Calvin Parnell, Jr. for the National Cottonseed Products Asso-

ciation. See J.A. 2735 (Parneli Statement) ; J.A. 2865 (Par-

nell Study). The study described specific engineering controls

and their costs for “a typical cottonseed oil mill processing

200 to 225 tons per day.” J.A. 2868.

209 The study did not specify the dust levels that would re-

sult from adoption of its recommended techniques for dust

control. Parnell observed that “in accepting this assignment

it was stipulated that the personnel working on this project

69a

ment that the techniques proposed by the study would

allow compliance with the final 500 y»g/m* PEL.°

Agencies are permitted to rely on estimates and policy

judgments of this kind so long as they are fully ex-

plained and authorized by statute.*"! We therefore affirm

the agency’s finding of technological feasibility for this

industry.

The agency's position on economic feasibility, in con-

trast, is neither clear nor adequately supported by the

record. OSHA acknowledged that “[m]uch of the testi-

mony on cottonseed processing . . . predicted dire eco-

would not attempt to estimate the final concentrations that

would result after implementation of these proposed engi-

neering controls.” J.A. 2875. The study was, however, com-

missioned by the industry in response to the proposed 200

pg/m* PEL, J.A. 2871, and did not find it impossible to attain

that level.

210 Tn addition to the claims addressed above the industry

tries to bolster its infeasibility claim with the fact that the

standard has not previously been enforced against the non-

textile industries. Non-Textile Brief at 9 n.17. This previous

history establishes only that a more limited definition of cot-

ton dust prevailed before this standard was promulgated.

See Sec’y v. Buckeye Cellulose Corp., OSHARC Doc. No. 1919

(Aug. 18, 1973), 367, J.A. 3246 (concerning cotton linters, a

substance removed from cottonseed by the cottonseed oil

mills). The standard before us employs a different, broader

definition of cotton dust that includes the airborne dust in

the non-textile industries. See Note 14 supra.

211 Industrial Union v. Hodgson, 499 F.2d at 475-476. The

Supreme Court noted recently that “complete factual support

in the record for the [agency’s] judgment or prediction is not

possible or required” where assessments of future events are

at issue. FCC v. Nat’l Citizens Comm. for Broadcasting, 98

S.Ct. 2096, 2122 (1978) (regulation of common ownership of

broadcast station and newspaper in same community). See

also Bradford Nat’l Clearing Corp. v. SEC, 590 F.2d 1085,

1103-04 (D.C. Cir. 1978) (judicial deference to agency in-

creases where agency decision based primarily on predictions) .

70a

nomic effects including a substantial number of plant

closings.” ***? The industry estimated that 62 of the ex-

isting 83 mills, or approximately 52 percent of the in-

dustry’s production capacity, will be forced to shut down

if the standard is put into effect.?¥

In response, OSHA merely criticized the industry’s es-

timate without constructing an alternative or fully ex-

plaining the basis for its criticism.7* For example,

OSHA suggested that the industry calculated “retrofit”

costs twice.*"*> Yet the agency never located these cal-

212 43 Fed. Reg. 27374 (1978).

212 Development and Planning Research Association, The

Economic Impact of Proposed Cotton Dust Standards on the

Cottonseed Processing Industry, VIII-8, J.A. 2855 (herein-

after cited as Cottonseed Impact Study). See also Tr. 3412-

27, J.A. 4134-40 (Testimony of Mr. Wiseman, Vice-President

of Development and Planning Research Association).

214 43 Fed. Reg. 27376.

215 OSHA’s position on “retrofit” estimate is in fact ambigu-

ous. First, it explains that the industry’s economic impact

study devised an estimate that is 40 percent higher than the

cost estimate of Parnell, designer of the theoretical technology

assessment. 43 Fed. Reg. 27375 (1978). Yet OSHA admitted

that “in the absence of further justification and breakdown

of these costs by the industry, OSHA is unable to discount

this economic impact estimate by any percentage.” Jd. Part

of the confusion stems from the term “retrofit co

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