# Petition — Cotton Warehouse Ass'n v. Marshall > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2369%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 809 ## Text | 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, Vi 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, v. 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. 2 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. 3 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. 4 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 4) 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. 6 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. 7 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. 8 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. 9 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.), 10 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. 11 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. 12 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 13 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. 14 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. 15 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. 16 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 la 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 V. RAY MARSHALL, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, et al., RESPONDENTS No. 78-1736 COTTON WAREHOUSE ASSOCIATION, PETITIONER V. 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. 2a 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 V. 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 3a 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 4a No. 78-1984 SPARTAN MILLS, PETITIONER v. 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 v. 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 V. F. RAY MARSHALL, SECRETARY, DEPARTMENT OF LABOR, AND EULA BINGHAM, ASSISTANT SECRETARY OF LABOR FOR OCCUPATIONAL SAFETY AND HEALTH, RESPONDENTS Sa 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 v. 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 6a 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 v. 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 V. 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 7a No. 78-2013 AMERICAN COTTON SHIPPERS ASSOCIATION, PETITIONER V. 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 V. 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 8a No. 78-2018 WEST POINT-PEPPERELL, INC., PETITIONER V. 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. 9a 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). © OSHA observed that “byssinosis represents a constella- 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 © F.g., J.A. 1218. *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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2369%3A1. Public record. Not legal advice.