Petition for Writ of Certiorari — National Cottonseed Products Ass'n v. McLaughlin

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87-1214 9 [FR dw aerrs

No. 87- JAN 20 J988

SPANIOL, JR. |

—«!

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

NATIONAL COTTONSEED PRODUCTS ASSOCIATION,

Petitioner,

. 2

ANN DORE MCLAUGHLIN, 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

CARL W. VoctT *

KEITH A. JONES

CAROL BARTHEL

FULBRIGHT & JAWORSKI

1150 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 452-6800

* Counsel of Record

WILSON - EPES PRINTING Co., INC - 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Whether, notwithstanding holdings to the contrary in

Industrial Union Department v. American Petroleum In-

stitute, 448 U.S. 607 (1980), and Texas Independent

Ginners Association v. Marshall, 630 F.2d 298 (5th Cir.

1980), the Occupational Safety and Health Administra-

tion may promulgate an occupational health standard

requiring employers to provide and pay for medical ex-

amination and testing of employees, in circumstances

where there is no significant current risk to health and

no factual basis for imposing any other occupational

health standard.*

* In addition to the persons named in the caption, Eula Bingham,

Assistant Secretary of Labor, and the Occupational Safety and

Health Administration were parties to the proceeding in the court

of appeals. The opinion of the court of appeals also disposed

of a separate proceeding to which the same federal officers and

agencies and the Minnesota Mining and Manufacturing Company

were parties.

(i)

TABLE OF CONTENTS

QUESTION PRESENTED ........................

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STATUTES AND REGULATIONS ISVOLVED.......

th a lt AR Ce

Statutory background .................

The cottonseed processing industry .....................

Initial regulation of exposure to cotton dust in

the cottonseed processing industry -..................

OSHA’s promulgation of an occupational health

standard requiring medical examination and

ERR Rc cabbie

Review of the health standard by the court of

appeals ............ 2 2 SP) TP IEE EP RD ONE AT TR GORE R

REASONS FOR GRANTING REVIEW ........................

1. The decision below conflicts with IJndustrial

Union Department and Texas Independent

i REISS oc ee ae a oe SEED Se Nace re

2. Even apart from those conflicts, the decision

below was incorrect and the issue is important..

CONCLUSION eh nak; PROCTER A ROPE ILA Ea he ED

(iii)

‘aa ata ii

TABLE OF AUTHORITIES

CASES Page

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

1979), aff'd on other grounds sub nom Ameri-

can Textile Manufacturers Institute v. Donovan,

UD Te CE anntcccntcaccenissetenctentecieen 4

Industrial Union Department v. American Petro-

leum Institute, 448 U.S. 607 (1980) _...-.. 0... passim

Louisiana Chemical Association v. Bingham, 657

Fe Oe ee a RD earch ei eee 13

Pratt & Whitney Aircraft v. Secretary of Labor,

G49 F.24 96 (Za Cir. 1981) .................. A OR Gol 12

Texas Independent Ginners Association v. Mar-

shall, 630 F.2d 398 (5th Cir. 1980) .....000....... 4g Ge Bly 2D

STATUTES:

ee ees We OD ore ee 1

29 UBC. § GSSCB) on. oooecccccdcccccccecens. CBF Sod Lee! RIAN. passim

Fe IY a he i eect we ge passim

29 U.S.C. § 669(a)........... EE IIE Se ANG PSP IEA 15

Rp Ske YS | RE ees ete eee REC MCE RN 15

CODE OF FEDERAL REGULATIONS:

29 C.F.R. § 1910.10438 ............... Sa nie entered LeRoi passim

OTHER:

AT Fed. Reg. 5906 (Feb. 9, 1982) ...............2...020- 22000... 4

48 Fed. Reg. 26962 (June 10, 1983) ..............0.0200.00..... 4,5

50 Fed. Reg. 51120 (Dec. 13, 1985) ............2..2002-000.. passim

IN THE

Suprenw Court of the United States

OCTOBER TERM, 1987

No. 87-

NATIONAL COTTONSEED PRODUCTS ASSOCIATION,

Petitioner,

ANN Dore MCLAUGHLIN, SECREPARY OF LABOR, et al..

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

The National Cottonseed Products Association hereby

petitions 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) is re-

ported at 825 F.2d 482.

JURISDICTION

The judgment of the court of appeals (App. B) was

entered on August 7, 1987. A timely petition for rehear-

ing. with suggestion of rehearing en hane, was denied

on October 23, 1987 (App. ©:. This Court’s jurisdiction

is invoked under 28 U.S.C. § 1254/1).

STATUTES AND REGULATIONS INVOLVED

The pertinent provisions of section 3'8) and 6'b) of

the Occupational Safety and Health Act of 1970, 29

U.S.C. §$ 652'8) and 655:b! (1982), and of 29 C.F-.R.

£ 1910.1043 (1987) are set forth at Appendix D.

STATEMENT

This case was heard by the United States Court of

Appeals for the District of Columbia Circuit on a_peti-

tion filed by petitioner National Cottonseed Products As-

sociation for review of an occupational health standard

promulgated by the Occupational Safety and Health Ad-

ministration (“OSHA”) pursuant to section 6'b) of the

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

£655'b) (1982). The jurisdiction of the court of ap-

peals rested on section Sif! of the Act.

1. Statutory background. Section 3(8) of the Act, 29

U.S.C. § 65218), defines the term “occupational safety

and health standard” as “a standard which requires con-

ditions. or the adoption or use of one or more practices,

means, methods, operations, or processes, reasonably nec-

essary or appropriate to provide safe or healthful em-

ployment and places of employment.” Section 6(b) gov-

evas the promulgation of “any occupational safety or

health standard.” Section 6'b! (5) specifically provides

for “standards dealing with toxic materials or harmful

physical agents.” Section 6(b)‘7) further provides that

“lijn addition, where appropriate, any such standard

shall prescribe the type and frequency of medical exami-

nations or other tests which shall be made available, by

the employer or at his cost, to employees exposed to such

hazards.” In this case, OSHA prescribed an occupational

health standard for the cottonseed processing industry

that requires medical examination and testing of employ-

ees but does not impose any limitation on exposure to a

toxic material or harmful physical agent.

2. The cottonseed processing industry. The cottonseed

processing industry comprises approximately 50 cotton-

seed oil mills nationwide. The mills process cottonseed

into four components—oil, linters, hulls, and meal. Cot-

tonseed oil is edible and is used in many foods for human

consumption. Linters, the short fuzz fibers on the ex-

terior of a seed, are used in cellulose products and cotton

batting. Hulls, the tough outer covering of the seed, and

meal, the granular material remaining after extraction

of the oil, are used in animal feed.

Cottonseed processing is seasonal, and worker turnover

is extremely high. 50 Fed. Reg. 51120, 51136 ‘Dee. 13,

1985'. It is estimated that “on average only 6 percent

of the workforce remain employed for a full year.” Jd.

at 51171. The total industry “workforce is relatively

small, about eight hundred.” /d. at 51136. Cottonseed

processing “is very much a declining industry. The num-

ber of facilities has been decreasing and many are small]

businesses.” Jd,

3. Initial regulation of exposure to cotton dust in the

cottonseed processing industry. In 1971, OSHA exercised

authority under section 6‘a! of the Act to adopt a “na-

tional consensus standard” applicable to all industries,

specifically including cottonseed processing, whose em-

ployees are exposed to cotton dust at the workplace. See

App. A at 3a. The standard prescribed a limit of 1000

ug m* on exposure to all cotton dust. See 50 Fed. Reg.

at 51123.

In 1978, acting pursuant to section 6b) of the Act,

OSHA promulgated a new “occupational safety or health

standard” by setting “permissible exposure limits of 200

ug m* of lint-free respirable cotton dust, averaged over

eight hours, for yarn manufacturing: 750 ug m®* for

slashing and weaving operations; and 500 ug/‘m* for

knitting and nontextile industries !including cottonseed

processing} which used cotton.” Jd. at 51124. OSHA

explained that “|t}his new standard was intended to

supersede the previous OSHA standard [of 1000 ug m°*}.”

47 Fed. Reg. 5906 (Feb. 9, 1982). On petition for re-

view, the limit of 500 ug m* on exposure to lint-free

respirable cotton dust was vacated with respect to cot-

tonseed processing because the record did not support

OSHA's finding of economic feasibility for that indus-

try. AFL-CIO v. Marshall, 617 F.2d 636, 669-73 (D.C.

Cir. 1979), aff'd on other grounds sub nom, American

Textile Manufacturers Institute v. Donovan, 452 U.S.

490 (1981).

Thereafter, OSHA took the position that the limit of

1000 ug m on exposure to all cotton dust remained in

effect for cottonseed processing pending further rulemak-

ing. See 50 Fed. Reg. at 51122. OSHA acknowledged,

however, “that the cottonseed industry was not in com-

pliance with [that limit] and that [such] compliance .. .

could cause severe economic disruptions in the industry.”

Id. at 51135.

4. OSHA’s promulgation of an occupational health

standard requiring medical cxamination and testing.

Early in 1982, OSHA undertook a “reevaluation of the

occupational health standard regulating employee expo-

sure to cotton dust.” 47 Fed. Reg. at 5906. The public

was asked to comment on, inter alia, “the evidence of

risk of adverse health effects in workers exposed to cot-

ton dust in non-textile industries.” /d. at 5907.

In 1983, after receiving numerous comments, OSHA

proposed “to eliminate from coverage from |the regula-

tions pertaining to cotton dust] several segments of the

nontextile industry [including cottonseed processing!

where there is no evidence of significant risk.” 48 Fed.

Reg. 26962 ‘June 10, 1982). OSHA noted that the oe-

cupational health standard promulgated in 1978 had been

based upon the assumption “that the large body of risk

evidence in the textile industries could be used to support

the less conclusive evidence in nontextile operations.”

Id. at 26965. Because “the composition of cotton dust

varies from one operation to another,” id. at 26966,

OSHA had decided “to review the existing scientific evi-

dence to determine whether or not a significant risk of

adverse health effects exists for workers . . . in each of

the nontextile industries covered by the 1978 standard.”

ld. After conducting that review, OSHA had concluded

that “none of the available studies provided evidence of

significant long-term adverse health effects in individual

workers in cottonseed processing operations that are

equivalent to those currently existing in the United

States.” /d. at 26967. OSHA also had concluded that

“there is a serious question as to whether [the earlier

limit of 1000 ug m* on exposure to all cotton dust] is

economically feasible.” Jd. at 26968-69. OSHA therefore

requested comments “on alternative approaches to pro-

tecting worker health in the cottonseed processing indus-

try which would be economically feasible.” Jd. at 26969.

In late 1985, after receiving-and reviewing further

comments and other evidence, OSHA determined that

cottonseed processing “workers exposed at levels equal to

'. to 2 times the present exposure limit do not have an

increased incidence of byssinosis or bronchitis [i.e., the

health impairments associated with exposure to cotton

dust in the textile industries] compared to controls.” 50

Fed. Reg. at 51135. OSHA therefore “conclude{d] there

is not sufficient evidence of significant risk which could

be substantially reduced by lowering exposure limits to

justify applying the exposure limit [of 500 ug m"} ...

to the cottonseed industry.” /d. OSHA also “conclude/d]

that a significant health risk will not develop if the 6(ai

limit [of 1000 ug m‘] is repealed for {cottonseed proc-

essing]. /d. at 51136. Consequently, OSHA exempted

cottonseed processing from all regulatory limits on ex-

posure to cotton dust. Jd. at 51135.

Although it had not found any significant risk of ma-

terial health impairment from exposure to cotton dust in

ve Se ee Or!

SE a ee Oe ee

the cottonseed processing industry, OSHA nonetheless

promulgated an occupational health standard requiring

medical examination and testing of cottonseed processing

workers. OSHA reasoned:

a backstop is clearly needed with the elimination of

the permissible exposure limit to assure that byssi-

nosis and chronic bronchitis do not develop after-

wards. This is especially true because cotton seed

processing is a dusty process and the possibility ex-

ists that exposures will rise above current levels.

In addition, there is a clear medical need for...

medical surveillance. . . . [{Mjedical surveillance

would allow identification of persons “unusually sus-

ceptible to adverse effects of this dust” and [of]

“nersons with active airway diseases . . . [who]

should not be assigned to particularly dusty jobs.”

Id. at 51135-36.

The new standard requires each employer in the cot-

tonseed processing industry to “institute a program of

medical surveillance for all employees exposed to cotton

dust.” 29 C.F.R. § 1910.1043(h) (1) (i). The employer

must conduct medical testing on the first day of employ-

ment both “prior to initial assignment” and “no less

than 4 and no more than 10 hours after the beginning of

the work shift” and also must conduct periodic medical

examinations for some employees every six months and

for each employee “at least every two years.” Jd. at

$ 1910.1043(h) (2), (3). The medical examination and

testing must be performed by or under the supervision

of a licensed physician, and the employer must obtain

from the physician a written medical opinion and _ rec-

ommendation for each employee. Jd. at § 1910.1043

(h) (1) (ii), 5(i). The employer must “establish and

maintain an accurate medical record for each employee

subject to medical surveillance ... for at least 20 years.”

Id. at § 1910.1043(k) (2).

5. Review of the health standard by the court of ap-

peals. The court of appeals sustained the requirement

of medical examination and testing. The court acknowl-

edged that this Court in /ndustrial Union Department v.

American Petroleum Institute, 448 U.S. 607 (1980), had

ruled that OSHA “must make a threshold finding of

significant risk,” App. A at 3a, before prescribing an

occupational safety or health standard under section

6(b) of the Act. But the court of appeals “h[e]ld that

this requirement is substantially modified when the sole

requirement imposed is one of monitoring employee

health.” Jd.

The court determined that OSHA may promulgate an

occupational health standard requiring medical examina-

tion and testing whenever “there is a real possibility of

significant health risks.” App. A. at 8a. Although

OSHA had not explicitly found even that “real possibil-

ity,” the court believed that the necessary finding was

implicit in OSHA’s explanation of why medical examina-

tion and testing was being required. Jd.

REASONS FOR GRANTING REVIEW

The court of appeals has held that OSHA may promul-

gate an occupational health standard requiring employ-

ers to provide and pay for medical examination and test-

ing of employees in circumstances where there is no sig-

nificant current risk to health and no factual basis for

imposing any other occupational health standard. This

holding conflicts with the decision of this Court in /ndus-

trial Union Department and with that of the Fifth Cir-

cuit in Texas [ndependent Ginners Association v. Mar-

shall, 630 F.2d 398 (5th Cir. 1980).

The issue is important. The decision below empowers

OSHA, without the bothersome necessity of first finding

that working conditions pose a real and discernible risk

to health, to direct employers in each and every industry

in the United States to furnish medical examination and

testing for employees. OSHA can do this, according to

the court of appeals, as a means of monitoring working

conditions to determine whether they continue to be safe.

The Act does not sanction that.

Providing medical examination and testing is costly

and burdensome. Placing the responsibility on employers

to conduct such medical surveillance, merely as a means

of gathering information and where there is no signifi-

cant current risk to health, is akin to exacting a special

tax for the purpose of funding government research.

Congress did not intend the device of mandatory occupa-

tional health standards to be used for that purpose or in

such an intrusive and indiscriminate manner.

1. The decision below conflicts with Industrial Union

Department and Texas Independent Ginners. In Jndus-

trial Union Department, this Court struck down an oc-

cupational health standard relating to exposure to ben-

zene at the workplace. Justice Stevens, writing for a

plurality of four Justices, reasoned that every occupa-

tional health standard must “satisfy the basic definition

in §3/8).” 448 U.S. at 642. Section 3/8) applies “to

all permanent standards promulgated under the Act and

it requires the Secretary, before issuing any stand-

ard, to determine that it is reasonably necessary and ap-

propriate to remedy a significant risk of material health

impairment.” Jd. at 639.

By empowering the Secretary to promulgate stand-

ards that are “reasonably necessary or appropriate

to provide safe or healthful employment and places

of employment,” the Act implies that, before promul-

gating any standard, the Secretary must make a

finding that the workplaces in question are not safe

[A] workplace can hardly be considered “un-

safe” unless it threatens the workers with a signifi-

cant risk of harm.

Therefore, before he can promulgate any perma-

nent health or safety standard, the Secretary is re-

quired to make a threshold finding that a place of

employment is unsafe—in the sense that significant

risks are present and can be eliminated or lessened

by a change in practices. This requirement applies

to permanent standards promulgated pursuant to

§6(b) (5), as well as to other types of permanent

standards.

Id. at 642 (emphasis in original). The benzene stand-

ard was invalid “{b]ecause the Secretary did not make

the required threshold finding.” Jd. at 640.’

The court of appeals in this case held that OSHA was

not required to make a threshold finding of significant

risk, stating that “an unusually precise dictum in [J/n-

dustrial Union Department] applies to this case and

sanctions the Secretary’s determination.” App. A. at

4a. The court relied upon the following passage from

the plurality opinion in Industrial Union Department:

[I]n setting a permissible exposure level in reliance

on less-than-perfect methods, OSHA would have the

benefit of a backstop in the form of monitoring and

medical testing. Thus if OSHA properly determined

that the permissible exposure level should be set at

5 ppm, it could still require monitoring and medical

testing for employees exposed to lower levels. By

doing so, it could keep a constant check on the valid-

ity of the assumptions made in developing the per-

missible exposure limit, giving it a sound evidentiary

basis for decreasing the limit if it was initially set

too high.

448 U.S. at 657-58 (footnotes omitted). The court of

appeals concluded that if medical surveillance may be

used as a backstop when OSHA has set a permissible ex-

1 Justice Rehnquist concurred in the judgment on the ground that

section 6(b)(5) of the Act is a standardless delegation of legisla-

tive authority, the enactment of which was not constitutionally

justified by inherent necessity. See 448 U.S. at 671-88.

posure level based upon a finding of significant risk, such

surveillance also may be required when OSHA has found

no significant risk and has imposed no permissible ex-

posure level. That conclusion is an obvious non sequitur.

The court of appeals misread the passage from /ndus-

trial Union Department on which it relied. In that pas-

sage, the plurality merely described the use of monitoring

and medical testing as an adjunct to a validly imposed

permissible exposure level. The passage does not imply

that a requirement of medical surveillance could be im-

posed on its own, in the absence of a permissible exposure

level or other substantive health standard. Nor does the

language of section 6‘b) (7) contemplate a free-standing

requirement of medical surveillance. It merely authorizes

OSHA to require medical examinations as an “addition,

where appropriate,” to an otherwise valid substantive

health standard.

But even if section 6(b) (7) could be read as author-

izing the imposition of a free-standing requirement of

medical surveillance, OSHA stil] would have to make the

threshold finding identified in /ndustrial Union Depart-

ment. An occupational health standard prescribing med-

ical examination and testing pursuant to section 6(b) (7),

no less than one imposing a permissible exposure level

pursuant to section 6/(b) (5), must satisfy the basic defi-

nition of section 3(8). That definition governs “all per-

manent standards promulgated under the Act,” 448 U.S.

at 639 (plurality opinion) (emphasis added), and thus a

threshold finding of a significant risk to health must be

made before OSHA “can promulgate any permanent

health or safety standard.” Jd. at 642 (emphasis in orig-

inal). The occupational health standard prescribed by

OSHA for the cottonseed processing industry does not

pass muster. Because “the agency simply did not find

evidence of significant risk,” App. A. at 8a, it had no law-

ful basis for requiring medical examination and testing.

The court below erred in reading the “unusually pre-

cise dictum” in Industrial Union Department as carving

out an exception from the requirement of a threshold

finding of significant risk. The occupational health stand-

ard there at issue not only established a permissible ex-

posure level for benzene but also required employers “to

provide semiannual medical examinations for their ex-

posed employees.” 448 U.S. at 627 (plurality opinion).

Four Justices believed that the benzene standard was

valid in its entirety. See 448 U.S. at 688-724 (Marshall,

J., dissenting). Another three Justices (those subscrib-

ing in full to the plurality opinion) believed that the

benzene standard was invalid only because it had not

been based upon a finding of significant risk of material

harm.” If, as the court below concluded, a requirement

of medical examination and testing may be imposed even

in the absence of a finding of significant risk, seven mem-

bers of this Court would have voted to sustain the sep-

arate portion of the benzene standard that imposed that

requirement. But the Court invalidated the entire stand-

ard, including the requirement that employers provide

medical examinations. The decision below thus conflicts

both with the plurality’s reasoning in Jndustrial Union

Department and with the Court’s disposition of the case

on the merits.

The decision below also squarely conflicts with the Fifth

Circuit’s holding in Texas Independent Ginners. There,

as here, OSHA had prescribed an occupational health

standard for an industry, cotton ginning, whose employ-

ees are exposed to cotton dust. As in this case, OSHA

had not found a risk to health sufficient to justify the

imposition of a permissible exposure level, but it had re-

quired employers to “provide medical surveillance of ex-

2 Justice Powell, who joined in most of the plurality opinion, be-

lieved that the benzene standard also was invalid because OSHA

had failed to determine whether economic costs bore a reasonable

relationship to expected benefits. See 448 U.S. at 664-71.

posed employees.” 630 F.2d at 402. The Fifth Circuit,

reasoning that “[t]he Act authorized only those OSHA

regulations that are elicited by a significant risk of un-

safe or unhealthful employment or workplaces, and that

are reasonably necessary or appropriate to reduce that

risk,” id. at 405, struck down the requirement of medical

surveillance “because OSHA has not found as a ‘threshold

matter’ that cotton dust poses a ‘significant health risk’

in cotton gins .. . and that a standard is ‘reasonably

necessary or appropriate to provide safe or healthful em-

ployment and places of employment.’” Jd. at 406.*

2. Even apart from those conflicts, the decision be-

low was incorrect and the issue is important. The lower

court’s determination in this case that a requirement of

medical examination and testing may be imposed under

section 6(b)‘7) of the Act upon the finding of a mere

“nossibility” of health risks, App. A. at 8a, is pure

invention. It has no basis in the statutory text or legis-

lative history. “The Act is intended only to guard against

significant risks, not ephemeral possibilities.” Pratt &

Whitney Aircraft v. Secretary of Labor, 649 F.2d 96,

104 (2d Cir. 1981).

Section 6(b) (7) itself provides no guidance concerning

when OSHA may require employers to conduct medical

examination and testing. If that provision stood alone,

it would run afoul of “the nondelegation principle of

separation of powers.” Industrial Union Department,

448 U.S. at 674 ‘Rehnquist, J., concurring). But section

6(b) (7) does not stand alone. It permits the imposition

of medical surveillance only as an “occupational safety

and health standard,” as defined by section 3(8), and it

contemplates that such surveillance will be only one com-

ponent of an occupational health standard dealing more

3 Although Texas Independent Ginners was discussed in the

parties’ briefs, the court below did not refer to that case in its

opinion.

broadly with a toxic material or harmful physical agent

pursuant to section 6(b) (5). In view of this relation-

ship among the three provisions, there is no statutory

warrant for the lower court’s conclusion that the prom-

ulgation of health standards under section 6(b) (7)

uniquely may be based upon a different and lower thresh-

old finding. Section 6(b)(7) necessarily incorporates

the legislative standards of sections 3(8) and 6(b) (5).

The Act contemplates that OSHA must make the same

adequate threshold finding of risk for all occupational

health standards.

At bottom, the decision below reflects the lower court’s

belief that it is appropriate for OSHA to require em-

ployers to provide and pay for medical examination and

testing of employees solely for the purpose of gathering

data concerning possible or potential risks to health.

That belief is in error:

Congress conceived [an occupational health] stand-

ard as a remedial measure addressed to a specific

and already identified hazard, not as a purely ad-

ministrative effort designed to uncover violations of

the Act and discover unknown dangers. In short,

standards should aim toward correction rather than

mere inquiry into possible hazards.

Louisiana Chemical Association v. Bingham, 657 F.2d

777, 782 (5th Cir. 1981).

OSHA sought to justify its “inquiry into possible

hazards” in this case on the ground that, because cotton-

seed processing was being exempted from the exposure

limit of 1000 ug/m* that earlier had been imposed under

section 6(a), “the possibility exists that exposures will

rise above current levels.” 50 Fed. Reg. at 51135. This

was rank speculation, with no basis in the rulemaking

record. There had been substantial uncertainty, even

within OSHA, concerning whether the 1000 ug/m®* limit

had remained in effect at all after 1978. Compare 47

Fed. Reg. at 5906 (the 500 ug/m* limit on lint-free re-

spirable cotton dust promulgated in 1978 “supersede[d]

the previous OSHA standard” of 1000 ug,m* in ail cot-

ton dust) with 50 Fed. Reg. at 51122 (asserting that the

limit of 1000 ug/m* remained in effect). Whether or not

the 1000 ug/m* limit technically remained in effect,

OSHA had conceded that the limit was not economically

feasible and that cottonseed processors were not comply-

ing with it. 7d. at 51133. Exempting cottonseed process-

ing from a limit that had not been generally understood

to be in effect, and that had not been complied with, was

unlikely to cause an increase in exposure levels.

Of course, there is always a theoretical possibility in

any industry that a change in working conditions may

result in increased exposure to potentially unhealthful

-~materials or agents. If such a merely theoretical possi-

bility of increased exposure justified promulgation of an

occupational health standard requiring medical examina-

tion and testing, OSHA could promulgate such a stand-

ard for every industry in the United States.

Medical surveillance is both costly and enormously in-

convenient for the employer. This is especially true in

the cottonseed processing industry. Cottonseed oil mills

are located in rural areas where physicians are scarce.

During the processing season, the mills operate around

the clock; employee turnover is extremely high, and new

workers may be hired on any day and for any shift. The

occupational health standard that OSHA has imposed re-

quires that, on his first day of work, each new employee

be given two medical examinations cenducted “by or un-

der the supervision of a licensed physician,” one before

the start of work and a second ‘“‘no less than 4 and no

more than 10 hours after the beginning of the work

shift.” 29 C.F.R. § 1910.1043¢h) (1) (ii), (2) (iii). This

requirement is both expensive and wholly insensitive to

the realities of the workplace.

~ 15

Other industries can expect to encounter similar costs

and inconveniences. Such burdens on private industry

might be reasonable where the workplace has _ been

shown to be hazardous. But they are wholly unreason-

able when OSHA’s objective is the mere collection of

data.

Congress foresaw that there would be situations, like

that presented in this case, where OSHA would desire

to gather additional data on a continuing basis even

though it was unable to identify any significant risk of

harm currently existing at the workplace. To deal with

such situations, Congress empowered the National In-

stitute of Occupational Safety and Health (“NIOSH”)

to conduct wide-ranging research relating to occupational

health, including the conduct of “‘such programs of medi-

cal examinations and tests as may be necessary for de-

termining the incidence of occupational illnesses and the

susceptibility of employees to such illnesses.” Section

20(a) (5) of the Act, 29 U.S.C. § 669(a) (5). NIOSH

also is authorized, under section 22(d) of the Act, 29

U.S.C. § 671(d), to conduct research and experimental

programs for the development of new or improved health

standards. Congress did not authorize OSHA to bypass

NIOSH, and to impose the cost of gathering data directly

on the employer, in the absence of a finding of an actual

and significant current risk to health.‘

* Indeed, section 6(b)(7) provides that, even when an appropriate

finding has been made, the government may defray the cost of

“such medical examinations [as! are in the nature of research.”

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

CARL W. VocT *

KEITH A. JONES

CAROL BARTHEL

FULBRIGHT & JAWORSKI

1150 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 452-6800

* Counsel of Record

APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS

DISTRICT OF COLUMBIA CIRCUIT

Nos. 78-2014, 86-1075 and 86-1157

NATIONAL COTTONSEED PRODUCTS ASSOCIATION,

Petitioner,

WILLIAM E. Brock, Secretary of Labor, United States

Department of Labor and EULA BINGHAM, Assistant

Secretary of Labor, United States Department of

Labor; OCCUPATIONAL SAFETY AND HEALTH ADMIN-

ISTRATION, United States Department of Labor,

Respondents.

NATIONAL COTTONSEED PRODUCTS ASSOCIATION,

Petitione rs

¥.

WILLIAM E. Brock, Secretary of Labor,

U.S. Department of Labor, et al.,

Re sponde nts.

MINNESOTA MINING AND MANUFACTURING COMPANY,

Py tit 10

OCCUPATIONAL SAFETY AND HEALTH

ADMINISTRATION, et al.,

Argued Jan. 16, 1987

Decided Aug. 7, 1987

As Amended Aug. 13, 1987

Before ROBINSON, GINSBURG and WILLIAMS,

Circuit Judges.

Opinion for the Court filed by Circuit Judge RUTH

B. GINSBURG and Circuit Judge WILLIAMS.

RUTH B. GINSBURG, Circuit Judge, and WIL-

LIAMS, Circuit Judge:

Two remnants of the cotton dust rulemaking are pre-

sented to us following extensive judicial and administra-

tive consideration of the regulations. See AFL-CIO v.

Marshall, 617 F.2d 636 (D.C.Cir.1979), aff'd in part sub

nom. American Textile Manufacturers Institute, Inc. v.

Donovan, 452 U.S. 490, 101 S.Ct. 2478, 69 L.Ed.2d 185

(1981); see generally 50 Fed.Reg. 51,123-25 (1985).

The first challenge, pressed by the National Cottonseed

Products Association (NCCPA), concerns Occupational

Safety and Health Administration (OSHA) prescrip-

tions for medical surveillance of workers exposed to cot-

ton dust. The second challenge, framed by Minnesota

Mining and Manufacturing Company (3M), concerns

OSHA’s effectiveness rating for the disposable respira-

tors that 3M manufactures. We conclude that OSHA

acted within its statutory authority and on a rational

basis; we therefore deny the petition for review.

I. NCPA PETITION

NCPA raises a question as to the scope of the Supreme

Court’s holding in /ndustrial Union Department, AFL-

CIO v. American Petroleum Institute, 448 U.S. 607, 100

S.Ct. 2844, 65 L.Ed.2d 1010 (1980) {hereinafter Ben-

zene|, that OSHA, in promulgating standards for toxic

substances under § 6(b) (5) of the OSH Act, 29 U.S.C.

$ 655(b) (1982), must make a threshold finding of sig-

nificant risk. We hold that this requirement is substan-

tially modified when the sole requirement imposed is one

of monitoring employee health, and that the Secretary’s

findings here are sufficient. NCPA also claims that the

monitoring requirements are not feasible for the cotton-

seed industry; we reject the contention.

A. Background

Section 6(a) of the OSH Act, 29 U.S.C. § 655(a)

(1982), authorizes OSHA to adopt any “national con-

sensus standard” as one of its own. In 1971 OSHA exer-

cised this power as to cotton dust, adopting the 1000

ug‘m* permissible exposure limit (“PEL”) that had

been promulgated under the Walsh-Healey Act, 41 U.S.C.

s 35(e) (1982). Section 6(b) of the OSH Act authorizes

independent promulgation of standards, and in 1978

OSHA exercised that grant. Determining that the dust

generated by cottonseed mills posed a material risk to

cottonseed workers’ health, it set a PEL of 500 ug/m*

and required employers to adopt medical surveillance

programs. 43 Fed.Reg. 27,350 (1978). On appeal, this

court agreed that exposure to cotton dust presented a

material risk of harm, but remanded for reconsidera-

tion or further explanation of the standard’s economic

feasibility. AFL-CIO v. Marshall, 617 F.2d 636, 666-73

(D.C.Cir.1979), aff'd on other grounds sub nom. Ameri-

can Textile Manufacturers Institute v. Donovan, 452

U.S. 490, 101 S.Ct. 2478, 69 L.Ed.2d 185 (1981). Thus,

the 500 ug m* PEL has never taken effect but the 1000

ug’m* limit has remained in place continuously since

1971.

On remand, the agency reconsidered both the need for

dust regulations in the cottonseed industry and _ their

feasibility. 47 Fed.Reg. 5906 (1982). During this rule-

making new studies of the domestic cottonseed industry

came to light, indicating that, contrary to the Secretary’s

previous findings, “excess byssinosis and bronchitis are

not present among U.S. cottonseed workers.” 50 Fed.

Reg. 51,120, 51,185 (1985). However, the record also

indicated that a subset of hypersensitive workers suffers

from respiratory ailments, as do a very high percentage

of workers in foreign cottonseed mills (where dust levels

are much higher), and that the precise causal link be-

tween cotton dust and respiratory harm remained un-

known. /d.

From these findings the Secretary determined that the

risk of material harm to cottonseed workers would not

be “significant” even without a PEL, so long as medical

surveillance was retained as a “backstop.” The backstop

mechanism would protect hypersensitive workers and

safeguard against risks stemming from the current in-

ability to pinpoint the exact link between cotton dust and

serious respiratory ailments. Jd. at 51,135-36. Finding

the facilities and personnel necessary for medical sur-

veillance to be available at a cost that appeared trivial

in relation to the industry’s gross revenues, the Secretary

concluded that medical surveillance was technologically

and economically feasible and required it. /d. at 51,171.

B. Significant Risk

~ NCPA alleges that the Secretary’s failure to find that

the current level of dust in cottonseed mills presents a

signficant risk to workers’ health precludes him, under

Benzene, from imposing any § 6(b) standard, including

one limited to medical surveillance. We disagree; an un-

usually precise dictum in Benzene applies to this case and

sanctions the Secretary’s determination.

In Benzene, the Court reviewed an OSHA regulation

reducing the PEL for benzene from 10 parts per million

(ppm) to one ppm. In lowering the standard OSHA

never adduced any evidence that exposures at 10 ppm

presented a risk to workers. Rather, OSHA took the

position that it was entitled (and possibly obligated) to

lower the PEL to the maximum extent feasible simply

because benzene was a carcinogen for which no level of

exposure had been proven absolutely harmless. Benzene,

448 U.S. at 652, 100 S.Ct. at 2869. Under OSHA’s in-

terpretation of the law, this regulatory power would be

constrained only if industry established, apparently “‘be-

yond a shadow of a doubt,” that there was a safe level

of exposure. Id.

The Court strongly rejected the notion that OSHA is

entitled to regulate any risk, no matter how small or

speculative, to the limits of feasibility. The OSH Act,

the Court held, empowers OSHA to regulate only hazards

presenting a “significant risk” of material harm to work-

ers’ health.' Thus, before OSHA could reduce the exist-

ing PEL, it had “the burden .. . to show, on the basis

of substantial evidence, that it is at least more likely

than not that long-term exposure to 10 ppm of benzene

presents a significant risk of material health impair-

ment.” Jd. at 653, 100 S.Ct. at 2869.

Here OSHA found that abandoning both the 1000

ug/m* and the 500 ug/m* PELs would not leave workers

exposed to a significant risk. Accordingly, NCPA con-

tends that under Benzene OSHA may issue no regulatory

restrictions at all. We believe, however, that Benzene

dictates a significant risk analysis for monitoring re-

quirements considerably laxer than for other workplace

standards.

1 In a subsequent decision the Court held that once the risk posed

by a toxic substance is determined to be significant, the Act com-

pels OSHA to adopt regulations providing workers the maximum

protection feasible, and does not permit OSHA to engage in cost-

benefit analysis. American Textile Manufacturers Institute v. Don-

ovan, 452 U.S. 490, 101 S.Ct. 2478, 69 L.Ed.2d 185 (1981).

The Benzene Court considered the possibility that

OSHA might impose a standard but remain uncertain

whether the residual risk was significant. It made clear

that OSHA could in such a ease impose monitoring re-

quirements as a “backstop,” in order to (1) check the

validity of its assumptions in imposing the standard se-

lected, (2) develop a sound evidentiary basis for decreas-

ing the limit if it proved to have been set too high, and

(3) ensure that unusually susceptible workers could be

removed from exposure before they suffered permanent

damage. 448 U.S. at 657-58, 100 S.Ct. at 2871-72.

NCPA appears to acknowledge that this discussion is

to be taken seriously despite its technical status as dic-

tum. It claims, however, that the statement is applicable

only if (1) the substance is toxic and “at some reason-

ably attainable level” causes harm, and (2) there is a

relationship between worker exposure and health effects

(a “dose-response” relationship). The Court’s discussion

does not impose either of these conditions, but we take

NCPA in essence to argue that the Court’s approval of

monitoring would be senseless otherwise: why monitor

if there is no chance of harm at levels that may come

about? We think the evidence of risk before OSHA

justifies application of the Court’s dictum.

In assessing whether harm exists at any “reasonably

attainable” level, OSHA is hampered by the ambiguous

relation between reality and the pre-existing regulation.

Although it is agreed that the industry has not complied

with the 1000 ug/m* standard (nor a fortiori that of

500 ug/m*), see 50 Fed.Reg. 51,133 and 48 Fed.Reg.

26,968, there is no concession that the regulations of the

past 16 years have been absolutely without effect. See

50 Fed.Reg. 51,133, 51,1386; 48 Fed.Reg. 26,968; 43 Fed.

Reg. 27,381; see also Joint Appendix (“J.A.”) at 311

(study finding that only two of 18 mills had mean ex-

posures greater than 1000 ug/m*). Accordingly, OSHA

could fairly infer that removal of the existing PEL (and

cancellation of the abortive one of 500 ug/m*) could lead

to higher levels of exposure, to the detriment of workers’

health.

The record indicates that even the levels of exposure

prevailing with the standard in effect pose some risk to

workers’ health. For example, a recent National Institute

for Occupational Safety and Health (“NIOSH’’) test

that is heavily relied upon by all parties found that al-

though cottonseed workers did not experience increased

incidence of byssinosis, as a group they suffered from

decreased lung functions; the smokers among them were

afflicted with chronic coughs. Respiratory Disorders and

Dust Exposure in Sectors of the Cotton Industry of the

United States. Part 3: Cottonseed Oil Mills v, J.A. at

307, 311. The series of studies by the Tulane Group

reached similar conclusions, Jones, Hammond, Butcher

& Weil, Respiratory Health in Cottonseed Crushing Mills,

J.A. at 263-66, and also indicated that 52% of the work-

ers studied were current smokers, 20% were ex-smckers,

and 15% had allergies, id., J.A. at 264-65. The health

organizations and physicians testifying on record over-

whelmingly felt that medical surveillance was necessary.

E.g., J.A. at 311 (NIOSH), 968-70 (Dr. Jones of Tulane

Group), 978 (Dr. Merchant), 987 (Dr. Engleberg). (In-

deed, with one prominent exception, Dr. Jones, they rec-

ommended that a PEL be retained. )

While it is true that no dose-response relation can be

affirmatively established under conditions of American

cottonseed processing, 50 Fed.Reg. 51,135, broader evi-

dence supports its existence. Foreign cottonseed workers,

who are subject to markedly higher doses than American

ones, evidently suffer significant health effects. See, e.g.,

Noweir, El-Sadeh & El-Dahhahny, Exposure to Dust in

the Cottonseed Oil Extraction Industry, 19 Arch. Environ.

Health 99 (1969), J.A. at 154 (35 of 110 workers exam-

ined in Egyptian cottonseed plants exhibited byssinotic

symptoms); Barnes & Simpson, Ventilatory Capacity

Changes on Exposure to Cotton Dust, Med. J. of Aus-

tralia 897 (May 25, 1968), J.A. at 159 (study under-

taken in response to worker complaints of wheezing and

tightness of the chest found link to cotton-dust ex-

posure). See also 53 Fed.Reg. 51,135.

Because of this evidence, OSHA rested its finding of

no significant risk on “the assurance that retention of

medical surveillance will provide a backstop if that judg-

ment is incorrect and this surveillance will protect the

health of the employees.” 50 Fed.Reg. 51,136. Of course

this cannot turn the finding of no significant risk into

its opposite; the agency simply did not find evidence of

significant risk. We do take the statement, however, to

invoke the conditions suggested by the Supreme Court in

Benzene for a backstop monitoring requirement: a find-

ing that the “less-than-perfect’’ evidence indicates that

there is a real possibility of significant health risks un-

der the other aspects of the standard adopted (here, no

regulation at all). See Benzene, 448 U.S. at 657-58, 100

S.Ct. at 2871-72.

C. Feasibility

OSHA’s standards must be technologically and eco-

nomically feasible, see, e.g., American Textile Manufac-

turers Institute v. Donovan, 452 U.S. at 513 n. 31, 101

2 NCPA argues that this conclusion is impermissibly inconsistent

with the Secretary’s determination that other nontextile industries—

namely knitting and warehousing—require only a_ longitudinal

study as a backstop. As to the knitting industry, however, the link

between exposure to dust at present levels and respiratory ailments

appears less significant, 50 Fed.Reg. 51,131; J.A. at 408 (NIOSH

comments) ; operations are inherently less dusty, 50 Fed.Reg. 51,131;

and medical experts were less adamant on the need for medical

surveillance, see J.A. at 975-76 (testimony of Dr. Merchant). The

data available for the warehousing industry were largely inconclu-

sive, 50 Fed.Reg. 51,139; J.A. at 975-76 (testimony of Dr. Mer-

chant); and work areas in that industry tend to be open with sub-

stantial natural ventilation, 50 Fed.Reg. 51,139.

S.Ct. at 2492 n. 31; NCPA contends that the medical sur-

veillance requirements are neither.

The standard requires that cottonseed workers be given

an initial examination and follow-up examinations every

two years thereafter if the employee manifests no signs

of respiratory problems and every six months if he does.

29 C.F.R. § 1910.1043(h) (2), (3) (1986). Each exam-

ination involves the compilation or updating of the sub-

ject’s medical history, the completion of a standardized

questionnaire, and a pulmonary function test. A licensed

physician must supervise the program (but need not

conduct all facets of the examination in person, id.

§ 1910.1043(h)(1)). The physician must also issue an

opinion summarizing the results of the examination, stat-

ing whether the employee has any medical conditions

which would place him at increased risk of health im-

pairment from exposure to cotton dust, and recommend-

ing limitations to be placed on the employee’s exposure.

Id. § 1910.1043(h) (5).

NCPA finds technological infeasibility in OSHA’s fail-

ure to establish that the consulting services, local clinics,

and in-shop medical centers expected to conduct the ex-

aminations are currently in place and ready to serve.

Of course, this deficiency is overwhelmingly likely; re-

sources are unlikely to be allocated to such an activity

until the requirement attracts them there. Accordingly,

it is no surprise that the law requires OSHA to demon-

strate only that it is reasonable to expect that such “tech-

nology”’ will develop in response to the standard’s promul-

gation. United Steelworkers v. Marshall, 647 F.2d 1189,

1264-65 (D.C. Cir.1980), cert. denied, 453 U.S. 913, 101

S.Ct. 3148, 69 L.Ed.2d 997 (1981). As NCPA suggests

no reason to suppose that it will not develop, the sole

question is whether compliance with the standard is eco-

nomically feasible. See id.

We have indicated that a standard is economically

feasible if the cost of compliance does not threaten the

10a

“competitive structure or posture” of the industry. /n-

dustrial Union Department v. Hodgson, 499 F.2d 467,

478 (D.C.Cir.1974); see also United Steelworkers, 647

F.2d at 1264-65. Thus if compliance were likely to dis-

able the industry from competing with substitute prod-

ucts, or markedly to increase concentration within the in-

dustry, a finding of infeasibility would be appropriate.

See Industrial Union, 499 F.2d at 478.

OSHA estimated the total cost of complying with the

standard at $70,671. Comparing this estimate to the in-

dustry’s annual gross revenues of $777.6 million, OSHA

concluded that imposition of the standard was economi-

cally feasible.

Even for evaluating the industry’s overall prospects for

survival, the method is a crude one. If demand for indus-

try products were highiy price elastic, a very small price

increase could force closure of a substantial segment of

the industry. Nonetheless, on the hypothesis that very

high price elasticities are rare, it is surely appropriate

for OSHA to infer that a cost amounting to a tiny frac-

tion of gross revenues (on OSHA’s estimates, less than

.01°) will not force a material segment of the industry

out of business.

NCPA accepts the general approach, but offers some

complaints about OSHA’s figures. OSHA’s cost estimate

of $70,671 is based on an average cost per examination

of $79. In deriving this figure, OSHA started with the

median estimated cost per examination identified by an

NCPA survey of 36 cottonseed mills, $60, a figure con-

sistent with all other estimates on record. See 50 Fed.

Reg. 51,170. Reliance on a median estimate might often

be misleading in assessing a standard’s impact on indus-

try structure. It might, for example, conceal a significant

group of firms laboring under a special disability and

likely to fail as a result of enforcement. NCPA indeed

contends that such a group exists—small firms located

lla

far from suitable testing spots. In fact, however, NCPA’s

own data, submitted to OSHA as part of the rulemaking

proceeding, show no significant link between above-median

estimated examination costs and firm size or remoteness.

See J.A. at 640-41. Further, the record contains some

evidence that the highest cost estimates might be reduced

in practice. See J.A. at 165. On these facts, accordingly,

we are not persuaded that OSHA’s focus on median fig-

ures caused it to overlook a likely impact on competitive

structure.

OSHA then increased its base estimate by adding $15

(three hours at $5 hour“) to account for lost production

and $4 to cover transportation costs,‘ yielding a total cost

per examination of $79. 50 Fed.Reg. 51,170-71. It then

multiplied by 817, the number of jobs in the industry,

reflecting an assumption that there would be an annual

“new hire” for every job. This produced $64,543, to which

OSHA added the cost of retesting those workers that re-

mained employed in the industry for two years and

arrived at the $70,671 total figure. With the minor excep-

tion noted below, OSHA has accounted for every element

of expense likely to flow from its standard.

NCPA notes correctly that OSHA’s cost estimate omits

the cost of providing follow-up examinations every six

months to workers who manifest symptoms of respiratory

problems. As hypersensitive workers are a major reason

for requiring medical surveillance, it was clear error for

OSHA to have ignored these costs. Nonetheless, we find

the error harmless. See Greater Boston Television Corp.

v. F.C.C., 444 F.2d 841, 851 (D.C.Cir.1970), cert. denied,

* Cottonseed workers reportedly earn minimum wage. 50 Fed.

Reg. 51,171.

‘This results in some double counting as the NCPA estimates

from which OSHA derives its base estimate already factor in

transportation costs. J.A. at 630.

12a

403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971). Given

the industry’s high turnover rate, only a fraction of these

workers will actually require a follow-up exam. More-

over, if employers implement physicians’ recommenda-

tions to place hypersensitive workers in less dusty jobs,

symptoms of respiratory ailments should decline, alleviat-

ing the need for future follow-up exams. We see no rea-

son to believe that OSHA’s error on this point could have

had more than a trivial effect on the cost of compliance

relative to the industry’s total revenues.

II. 3M PETITION

OSHA’s regulations place ceilings on cotton dust con-

centrations to which workers may be exposed. See, ¢.g.,

29 C.F.R. § 1910.1043(¢e) (1) (i) (1986) (limiting cotton

dust exposure to 200 ug/m* in yarn manufacturing and

cotton washing operations). If worker exposure exceeds

the OSHA decreed PEL, or if employees wish to reduce

their exposure below the PEL, the employer is obliged to

furnish respirators. Jd. § 1910.1043(f) (1). Two factors

together determine respirator effectiveness: filter effi-

ciency and the “fit factor,” 7.e., the extent to which leak-

age occurs between the respirator face and seal and the

wearer’s face.

OSHA’s effectiveness ratings (or “protection factors’)

are tied to particular respirator styles. See id. § 1910.1043

(f) (“supplied air respirators’ have a rating of ten;

“high efficiency particulate filter respirators with a full

facepiece” have a rating of fifty). The protection factor

indicates OSHA’s estimate of the amount of cotton dust

filtered. The higher the number, the more successful the

filter; a rating of ten means only one of ten dust particles

is not filtered. Thus, a respirator with a protection fac-

tor of ten will permit work in environments laden with

cotton dust concentrations up to ten times the PEL.

eeeeEEe—eeenn

13a

In 1978, OSHA adopted a protection factor of five for

“single-use respirators.” ° The absence of a reliable test

for proper fit, not filter efficiency, accounted for the low

rating. See 43 Fed.Reg. 27,386 (1978).° This 1978 rat-

ing was not challenged in court.

Between 1978 and 1983, 3M and other respirator pro-

ducers developed a “disposable respirator” similar in con-

struction (material and dimensional characteristics) to

the single-use respirator.? On the basis of filter efficiency,

NIOSH rated this respirator at ten. With no guideline in

the 1978 OSHA regulations explicitly covering the newly

developed disposable respirators, the cotton industry ap-

parently treated them as having a protection factor of ten.

During its review of the cotton dust regulations be-

tween 1983 and 1985, OSHA concluded that testing for

snug fit on a daily basis remained infeasible for any

5 A single-use respirator is similar in shape to, but more rigid

than, a surgical mask. Unlike gas-mask style respirators that have

air intake and exhale valves, the entire surface area of the single-

use respirator is the filter.

®* Using a gas-mask style respirator, the wearer can easily block

the air flow valves, breathe deeply, and determine whether air is

escaping from the face seal. For the single-use respirator, how-

ever, it is difficult, if not impossible, for the wearer to cover the

entire surface area, but not the seal between the respirator and the

wearer's face. Alternative tests for proper fit that do not require

blocking air intake (i.e., spraying into the air a test agent in-

capable of penetrating the respirator filter and seeing if the wearer

can detect that agent’s distinctive odor, taste or irritation) were

unavailable in 1978 for the single-use respirator because all known

test agents permeated its filter element.

7 According to comments 3M made to OSHA, the sole notable

difference between the 1978 single-use respirator and the 198%

disposable respirator is filter efficiency. J.A. at 626-27. For both

types, because the filter is inseparable from the respirator, when

the filter clogs with dust, making breathing difficult, the entire

respirator is thrown away. In its 1985 rule, OSHA classified as

disposable all respirators with inseparable filters.

l4a

respirator constructed like the single-use respirator, ‘e.,

one in which the filter constitutes the entire surface area

of the respirator. Finding no justification for treating

single-use and later developed disposable respirators dif-

ferently, the agency rated both at five. 3M urges that

OSHA acted arbitrarily in refusing to set the effective-

ness rating for disposable respirators at ten.

A. Standing

OSHA asserts initially that 3M lacks standing to peti-

tion for review. FAIC Securities, Inc. v. United States,

768 F.2d 352 (D.C.Cir.1985), appears to us dispositive of

this threshold issue. Under that decision’s analysis, 3M

is a proper petitioner for judicial review.

In FAIC Securities, a deposit broker® and a national

trade association whose members include deposit brokers

successfully challenged as unlawful certain Federal Home

Loan Bank Board and Federal Deposit Insurance Cor-

poration regulations. The regulations in question altered

federal insurance coverage of $100,000 per depositor, per

financial institution by adding this qualification: in the

case of funds deposited by or through a deposit broker,

insurance coverage would be limited to $100,000 per bro-

ker, per financial institution. The deposit brokers alleged

that the challenged regulations contravened the Federal

Deposit Insurance Act (“FDIA”’) and the National Hous-

ing Act (“NHA”). They would be put out of business by

the altered regulations, the brokers remonstrated, and

their customers consequently would be deprived of the

S OSHA recognized the availability by 1983 of a new test agent

that would not permeate the single-use respirator’s filter element.

Cf. supra note 6. OSHA explained, however, that this test, the

saccharin QLET, developed for use’ at intervals ef several months,

was too time-consuming to be used on a daily basis. 50 Fed.Reg.

51,154 (1985).

® A deposit broker assists investors in placing deposits advan-

tageously. See FAIC Securities, 768 F.2d at 355.

l5a

benefits of placing deposits through a broker. The Federal

Home Loan Bank Board, as defendant-appellant in FAIC

Securities, contested the brokers’ standing; the Board

argued that the brokers failed the prudential “zone of

interest” test announced in Association of Data Processing

Service Org., Inc. v. Camp, 397 U.S. 150, 156, 90 S.Ct.

827, 831, 25 L.Ed.2d 184 (1970),"° because “‘[t]he NHA

and the FDIA are intended to protect the security of

depositors, banks and thrifts, not the profits of deposit

brokers.’” FAIC Securities, 768 F.2d at 356 (quoting

Brief for Appellant Bank Board at 52).

Writing for the court in FAIC Securities, then Judge

(now Justice) Scalia endeavored to analyze coherently

“the confused field of jus tertii standing.” Jd. at 360. He

concluded that, under current Supreme Court precedent,

notably City of Revere v. Mass. Gen. Hosp., 463 U.S. 239,

103 S.Ct. 2979, 77 L.Ed.2d 605 (1983), Carey v. Popula-

tion Services Int'l, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d

675 (1977), and Craig v. Boren, 429 U.S. 190, 97 S.Ct.

451, 50 L.Ed.2d 397 (1976), vendors could meet the pru-

dential requirement even if they did not independently

fulfill the “zone” test; it would do for this purpose if their

customers or potential customers passed the test. FAIC

Securities, 768 F.2d at 358.

The depositors, all agreed, fit within the protective zone

of the NHA and FDIA, and the broker-depositor relation-

ship fit the vendor-vendee description. Supreme Court

decisions, Judge Scalia observed, treat the interests of

1°The Supreme Court addressed the “zone” test most recently

in Clarke v. Securities Indus. Ass'n, ——- U.S. ——, 107 S.Ct. 750,

93 L.Ed.2d 757 (1987), and there observed that “[t]he test is not

meant to be especially demanding; in particular, there need be no

indication of congressional purpose to benefit the would-be plain-

tiff.” Jd. at 757 (footnote omitted); see also id. at 757 n. 15 (dis-

approving as excessively demanding this court’s formulation of the

zone test in Control Data Corp. v. Baldrige, 655 F.2d 283, 293-94

(D.C.Cir.), cert. denied, 454 U.S. 881, 102 S.Ct. 368, 70 L.Ed.2d

190 (1981) ).

l6a

vendors and vendees as “two sides of the same eoin.” Id.

at 359. High Court precedent, he determined, allows

vendors to base their standing on their relationship to

vendees. and to assert the interest of those vendees, even

if no impediment exists to a suit by the vendees them-

selves. Id. at 360-61; see Block v. Meese, 793 F 2d 1303.

1309 (D.C.Cir.1986) (citing with approval the analysis

in FAIC Securities)

In a more recent decision, Haitian Refugee Center v.

Gracey, 809 F.2d 794, 811 & n.15 (D.C.Cir.1987), a di-

vided panel questioned the reasoning, although not the

result, in FAIC Securities. Judge Bork, writing for him-

self and Judge Buckley in Haitian Refugee Center,

thought the analysis in FAIC Securities flawed because

Judge Scalia’s opinion did not advert to the Supreme

Court’s decisions in United States v. Payner, 447 U.S.

727. 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980), and Cali-

fornia Bankers Ass’n v. Shultz, 416 U.S. 21, 94 S.Ct.

1494, 39 L.Ed.2d 812 (1974). See Haitian Refugee Cen-

ter, 809 F.2d at 811.

Payner rejected third party invocation of the exclusion-

ary rule. The decision rests on fourth amendment, not

standing law, analysis. See Rakas v. Illinois, 439 U.S.

128. 132-38. 99 S.Ct. 421, 424-28, 58 L.Ed.2d 387 (1978);

United States v. Salvucci, 448 U.S. 83, 87 n.4, 100 8.Ct.

9547, 2551 n.4, 65 L.Ed.2d 619 (1980) (“In Rakas, this

Court discarded reliance on concepts of ‘standing’ in de-

termining whether a defendant is entitled to claim the

protections of the exclusionary rule. The inquiry, after

Rakas, is simply whether the defendant’s rights were vio-

lated by the allegedly illegal search or seizure.”). Rakas

explained that the exclusionary rule is but one form of

remedy afforded for fourth amendment violations; denial

of this remedy to those invoking the fourth amendment

rights of others, the Court reasoned, was appropriate in

view of the “substantial social cost [of keeping] |[r]ele-

vant and reliable evidence . . . from the trier of fact and

17a

deflecting] the search for truth at trial.” 439 U.S. 128,

134, 137, 99 S.Ct. 421, 425, 427, 58 L.Ed.2d 387 (1978).

Cf. Rohr, Fighting for the Rights of Others: The Trou-

bled Law of Third-Party Standing and Mootness in the

Federal Courts, 35 U. Miami L.Rev. 398, 459-61 (1981)

‘litigant is generally not positioned to seek damages for

violation of a third person’s rights).

California Bankers Ass’n also involved a fourth

amendment challenge.'' Moreover, even if one read that

less than crystalline 1974 decision to deny that a vendor-

vendee relationship is enough to permit third-party

standing, pre-1976 High Court precedent, as Judge Scalia

pointed out, has been overtaken by the Court’s later de

cisions. See FAIC Securities, 768 F.2d at 359.

The discussion of FAIC Securities in Haitian Refugee

Center was both brief and unessential to the majority’s

decision.'* The suggestion that Payner and California

Bankers Ass’n undermine the reasoning in FAIC Securi-

ties does not appear compelling in light of the special

fourth amendment contexts in which those two Supreme

Court dispositions are embedded. See Monaghan, Third

Party Standing, 84 Colum.L.Rev. 277, 279 n. 9, 292 n.

11In California Bankers Ass’n, the Court first concluded that

all litigating bank depositors lacked standing, then declined to per-

mit a bank or banking association to assert the rights of any

depositor. 416 U.S. at 69, 94 S.Ct. at 1521. The Haitian Refugee

Center majority opinion suggests that the Court in California

Bankers Ass'n denied the banks standing despite the direct im-

pact of the challenged Treasury regulation on many bank customers;

the Solicitor General’s brief in California Bankers, however, sug-

gested that depositors affected by the regulation in question were

not so common as to make their business with the plaintiff banks

predictable. Compare Haitian Refugee Center, 809 F.2d at 809,

with Brief for the Appellants, California Bankers Ass’n v. Shultz,

416 U.S. 21, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974).

12 The Center, seeking to assist Haitian refugees settle in the

United States, was not in a vendor-vendee relationship with the

interdicted Haitians whose interests the Center sought to advance.

18a

88, 305 n. 149 (1984) ; see also Rohr, supra, 35 U. Miami

L.Rev. at 461 n. 290 {case law shows uniquely firm

denial of third-party standing to invoke the ‘“exclusion-

ary rule” of criminal procedure). We therefore conclude

that FAIC Securities continues to state law of the cir-

cuit, binding upon us unless and until changed by the

court sitting en bane, or shown to be incorrect by in-

struction from Higher Authority.’ If the FAIC Securi-

ties deposit brokers’ and depositors’ interests are “two

sides of the same coin,” 768 F.2d at 359, so too are 3M’s

interest in selling the disposable respirators it manu-

factures, and cotton processing plant operators’ interest

in purchasing the respirators. If the brokers had stand-

ing in FAIC Securities, then 3M has standing here; no

tenable distinction can be drawn between the relation-

ship of the litigant and third party in the two cases.

13 Even under Haitian Refugee Center’s view of FAIC Securities,

we note, 3M would appear to have standing in this case. Haitian

Refugee Center observes that litigants may challenge, pursuant to

their own right not to be injured by unauthorized agency action,

any regulation allegedly ultra vires the statutes administered by

the agency. 809 F.2d at 811 n. 13. 3M complains that OSHA’s

allegedly excessive regulation of disposable respirators passes be-

yond the authority afforded OSHA in the OSH Act. 29 U.S.C.

§ 651 et seq. Just as Haitian Refugee Center recognized the stand-

ing of the deposit brokers in FAIC Securities to sue in their own

right, so Haitian Refugee Center would seem to tolerate 3M’s stand-

ing to sue in its own right.

14 The decisions principally relied upon by OSHA, R.T. Vander-

bilt Co. v. Occ. Saf. & H. Rev. Comm’n, 708 F.2d 570 (11th Cir.

1983), and Fire Equipment Mfrs. Ass'n, Inc. v. Marshall, 679 F.2d

679 (7th Cir.1982), cert. denied, 459 U.S. 1105, 103 S.Ct. 728, 74

L.Ed.2d 953 (1983), hold that the right of product manufacturers

to deal with their customers falls outside the zone of interest of

the OSH Act. Neither decision considered the product manufac-

turer’s opportunity to rely on the interest of its customers to fit

within the zone. Fire Equipment Mfrs. did consider third-party

standing, but only in the context of employers’ ability to assert

employee rights and, arguably, of product manufacturers to assert

the rights of customers’ employees.

19a

Following FAIC Securities, we are constrained to recog-

nize 3M’s standing on the basis of “the vendor-vendee

relationship alone.” Jd. at 361."

B. Merits

3M features three bases for declaring arbitrary

OSHA’s assignment, in its cotton dust regulations, of a

protection factor of only five to disposable respirators.

First, 3M asserts that feasible tests of proper fit, if un-

available in 1978, are available now. Second, 3M points

to the higher (ten) rating accorded disposable respira-

tors by national standard-setting organizations. Third,

and most weighty in 3M’s presentation, OSHA itself, in

standards the agency adopted for the lead industry in

1982, approved establishment of a protection factor of

ten for disposable respirators. We examine each 3M

position in turn.

Two procedures, the saccharin QLFT' and the posi-

tive pressure fit check (PPFC),'* 3M states, are avail-

able to test disposable respirators for face-fit; each, 3M

1 Judge Scalia noted the “admirable effort to bring coherence

to the vendor-vendee cases” in Monaghan, Third Party Standing, 84

Colum.L.Rev. 277 (1984) (cited in FAIC Securities, 768 F.2d at

360 n. 5). Professor Monaghan observed that the Supreme Court

has never limited a litigant’s standing to cases in which the com-

plainant (rather than a third party) is the subject of government

regulations. Jd. at 302-03 nn. 138-40 (citing, i.e., Pierce v. Soc’y

of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925);

Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149 (1917);

Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915) ).

'®To take the saccharin QLFT test, the subject puts on the

respirator and breathes normally. A saccharin aerosol is sprayed

near the subject. Because the aerosol cannot penetrate the dispos-

able respirator filter, if the subject tastes the sweet saccharin, the

respirator fits improperly.

17 The PPFC procedure requires the test subject to cover with

his hands the portion of the respirator intended to permit air

intake. If, on inhaling, the subject gets no air, the respirator fits

properly.

20a

contends, is independently adequate to do the job. If

3M were right about the adequacy of these tests, we

would be obliged to rule in its favor; the sole reason

OSHA gave for rating disposable respirators at five

rather than ten is the inability of the cotton plant op-

erator and worker to check reliably for proper fit.

OSHA acknowledges that the saccharin QLFT will

detect improper fit. But the test is not proffered by 3M

as one the plant operator will employ for each worker

each day. As 3M conceded at oral argument, the saccha-

rin test is intended for use every three or six months; the

test, administered at these intervals, checks for altera-

tion in a wearer’s facial contours that might affect the

fit of the respirator. OSHA observed that “it is not

appropriate to require the employers to conduct the sac-

charin QLFT each time the respirator is worn since

it is time consuming. .. .” 50 Fed.Reg. 51,154 (1985).

Unsurprisingly, 3M does not press for such a require-

ment, one likely to increase the cost, and reduce the at-

tractiveness, of its product to employers.

The PPFC procedure is an effective daily check for

the fit of a gas-mask style respirator. Respirators of

that type confine intended air intake to valves that can

be blocked off easily by the employee’s hands. By con-

trast, the entire surface of a disposable respirator is

intended to permit air intake. OSHA recognized that,

in the case of disposable respirators, the worker’s hands

cannot effectively block intended air intake, and that in-

take only, while leaving unobstructed air taken in be-

cause of the respirator’s improper fit. See supra note

6.'* We think it evident that OSHA did not rule without

153M referred to a study it had conducted on twenty-three of its

employees, purportedly showing that the PPFC will “pass” no one

whose disposable respirator fits in a fashion providing actual pro-

tection at less than a factor of ten. It suffices to note that the

small size of the 3M study justified OSHA’s refusal to count it

persuasive.

2la

reason when it adhered to the view that no test appro-

priate for daily use adequately assured the proper fit

for disposable respirators.

We consider next 3M’s second point. Both NIOSH and

the Committee on Safety Standards for Respiratory Pro-

tection of the American National Standards Institute

(“ANSI”) have rated disposable respirators at ten. But

neither organization took account of respirator fit; both

based their ratings on filter performance. Absent assur-

ance of a respirator’s proper fit, the NIOSH and ANSI

ratings can reliably indicate only the efficiency of the

filter, not the effectiveness of the entire respirator as it

is used on the job.’"° In 1978, OSHA rated single-use

respirators at five because of the considerable risk of

undetected leakage when worn at work. See 43 Fed.Reg.

27,386 (1978).°° With no evidence of significant im-

provement in a user’s ability to thwart leakage, OSHA

continued in force its prior judgment. See 50 Fed.Reg.

51,154 (1985) (“A protection factor of 5 for the class

of disposable dust and mist respirators is the appropri-

ate protection factor to provide an adequate margin of

safety to overcome the fitting problem.”).2' We see no

19 When proper fit can be assured, as in the case of respirators

with easily blocked air-intake valves, the NIOSH and ANSI stand-

ards present a fair assessment of respirator effectiveness as well

as filter efficiency. Thus, OSHA’s adoption of ANSI ratings for

some respirators, but not for disposable respirators, seems entirely

rational.

203M suggests that OSHA was wrong in 1978 when it concluded

that single-use respirators could not achieve protection warrant-

ing a rating of ten. Time for that challenge has long since passed.

See 29 U.S.C. § 655(f). We do not understand 3M to contend that

this court should review the 1978 evidence in its consideration of

the rulemaking completed in 1985. See Brief for Petitioner [ Min-

nesota Mining and Manufacturing] at 26-28.

212M does not suggest that improved filter efficiency alone war-

rants treating its disposable respirator differently from the single-

use respirator OSHA dealt with in 1978.

22a

necessity for change based on ratings of filters rather

than disposable respirators in their entirety.

Finally, we evaluate the challenge to which 3M at-

taches greatest weight. While disposable respirators are

rated at five for use in the cotton industry, the very

same respirators can be rated at ten in the lead industry,

3M emphasizes. OSHA explains that this disparate

treatment is attributable primarily to differences in the

effectiveness of medical screening in the two industries.

Medical screening for lead adequately substitutes for

daily fit testing, OSHA maintains, but medical screen-

ing for lung diseases from cotton dust does not. Cf. 51

Fed.Reg. 22,735 (1986) (to be codified at 29 C.F.R.

§ 1910.1001(g)(2)) (disposable respirators declared in-

adequate, hence unusable, as a means of affording any

protection against exposure to asbestos).

Blood lead tests provide an immediate and direct indi-

cation of the presence of lead in a worker’s body. Al-

though the source of the lead detected (for example,

whether it was inhaled as a result of an improperly fitted

respirator) is not identifiable, a worker can be safe-

guarded promptly. He can be supplied with a gas-mask

style respirator or removed from a lead-laden environ-

ment immediately upon screening, before adverse health

effects develop. Workers in the lead industry are tested

at six month intervals. OSHA determined that six

months’ exposure to lead between blood tests presents an

acceptable health risk, and we have no reason, on the

record before us, to question that determination. Be-

cause of the efficacy of monitoring blood-levels, OSHA

found it suitable to allow disposable respirators, when

used in the lead industry, a protection factor rating of

ten.

By contrast, current medical screening of workers is

incapable of detecting cotton dust inhalation immediately

and unmistakably. Medical tests in the cotton industry

23a

rely, in part, on worker identification of symptoms.

The administrative record here suggests that workers

do not always acknowledge the presence of symptoms.

J.A. at 49, 187. Further, the tests detect only actual

lung impairment. Medical screening does not isolate cot-

ton dust from other airborne contaminants that cause

lung impairment; more significantly, medical tests expose

the potential presence of a contaminant only by detect-

ing actual adverse health effects. The administrative re-

cord does indicate that early manifestations of lung im-

pairment are reversible. At least some health impair-

ment, however, even if curable, develops before a cotton

worker furnished with a disposable respirator can be in-

formed of her plight through medical screening, and

thus be alerted to the need to substitute a gas-mask style

respirator or to transfer to a work station away from

dusty areas.”

OSHA, we conclude, has adequately accounted for its

position. We cannot set aside as irrational that expert

agency’s determination that the precision of medical test-

ing for lead in comparison to the imprecision of testing

for cotton dust inhalation warrants the differential rat-

ing of disposable respirators in the two industries.

CONCLUSION

For the reasons stated, the petitions for review are

denied and the challenged regulations are affirmed.

It is so ordered.

*2 The cotton dust regulations, we note, require screening every

one or two years for most workers, and every six months only for

workers identified as already suffering from lung impairment. 29

C.F.R. § 1910.1043(h)(3) (1986). OSHA might have required more

frequent medical screening, but 3M’s plea does not demonstrate

that the agency’s decision to rate disposable respirators at five and

continue the existing screening schedule indicates an impermissible

choice between the competing interests and costs at stake.

24a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 78-2014

NATIONAL COTTONSEED PRODUCTS ASSOCIATION,

. Petitioner

WILLIAM FE. Brock, Secretary of Labor,

United States Department of Labor and

EULA BINGHAM, Assistant Secretary of Labor,

United States Department of Labor;

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,

United States Department of Labor,

Respondents

No. 86-1075

NATIONAL COTTONSEED PRODUCTS ASSOCIATION,

Petitioner

WILLIAM E. Brock, Secretary of Labor,

U.S. Department of Labor, et al.,

Respondents

No. 86-1157

MINNESOTA MINING AND MANUFACTURING COMPANY,

.. Petitioner

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,

et al.,

Respondents

25a

Petitions fur Review of Orders of the

Occupational Safety and Health Administration

[Filed Aug. 7, 1987]

Before: ROBINSON, RUTH B. GINSBURG and

WILLIAMS, Circuit Judges.

These causes came on to be heard on the petitions for

review of orders of the Occupational Safety and Health

Administration, and were argued by counsel. On consid-

eration thereof, it is

ORDERED and ADJUDGED, by this Court, that the

petitions for review are denied and the challenged regula-

tions are affirmed, in accordance with the Opinion for the

Court filed herein this date.

Per Curiam

For The Court

s/ George A. Fisher

GEORGE A. FISHER

Clerk

Date: August 7, 1987

Opinion for the Court filed by Circuit Judge Ruth B.

Ginsburg and Circuit Judge Williams.

26a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 78-2014

NATIONAL COTTONSEED PRODUCTS ASSOCIATION

WILLIAM E. Brock, Secretary of Labor, et al.

And Consolidated Cases

| Filed Oct. 23, 1987 |

Before: ROBINSON, RUTH B. GINSBURG and

WILLIAMS, Circuit Judges

ORDER

Upon consideration of petitioner’s petition for rehear-

ing, it is

ORDERED, by the Court, that the petition is denied.

Per Curiam

FOR THE COURT:

GEORGE A. FISHER

Clerk

By: /s’ Robert A. Bonner

ROBERT A. BONNER

Deputy Clerk

27a

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 78-2014

NATIONAL COTTONSEED PRODUCTS ASSOCIATION

Vv.

WILLIAM E. Brock, Secretary of Labor, et al.

And Consolidated Cases

[Filed Oct. 23, 1987]

Before: Wald, Chief Judge; Robinson, Mikva, Edwards,

Ruth B. Ginsburg, Bork, Starr, Silberman, Buck-

ley, Williams, D. H. Ginsburg and Sentelle,

Cireuit Judges

ORDER

Petitioner’s suggestion for rehearing en banc has been

circulated to the full Court. No member of the Court

requested the taking of a vote thereon. Upon considera-

tion of the foregoing, it is

ORDERED, by the Court en banc, that the suggestion

is denied.

Per Curiam

FOR THE COURT:

GEORGE A. FISHER

Clerk

By: /s/ Robert A. Bonner

ROBERT A. BONNER

Deputy Clerk

Circuit Judge Sentelle did not participate in this order.

28a

APPENDIX D

Section 3(8) of the Occupational Safety and Health

Act of 1970 (“OSH Act”), 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, reasonably

necessary or appropriate to provide safe or health-

ful employment and places of employment.

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

pertinent part provides:

The Secretary may by rule promulgate, modify,

or revoke any occupational safety or health stand-

ard in the following manner:

* “" * *

(5) The Secretary, in promulgating standards

dealing with toxic materials or harmful physical

agents under this subsection, shall set the standard

which most adequately assures, to the extent feas-

ible, on the basis of the best available evidence, that

no employee will suffer material impairment of

health or functional capacity even if such employee

has regular exposure to the hazard dealt with by

such standard for the period of his working life.

Development of standards under this subsection

shall be based upon research, demonstrations, ex-

periments, and such other information as may be

appropriate. In addition to the attainment of the

highest degree of health and safety protection for

the employee, other considerations shall be the latest

available scientific data in the field, the feasibility

of the standards, and experience gained under this

and other health and safety laws. Whenever prac-

ticable, the standard promulgated shall be expressed

29a

in terms of objective criteria and of the perform-

ance desired.

* * _ *

(7) Any standard promulgated under this sub-

section shall prescribe the use of labels or other ap-

propriate forms of warning as are necessary to in-

sure that employees are apprised of all hazards to

which they are exposed, relevant symptoms and ap-

propriate emergency treatment, and proper condi-

tions and precautions of safe use or exposure.

Where appropriate, such standard shall also pre-

scribe suitable protective equipment and control or

technological procedures to be used in connection

with such hazards and shall provide for monitoring

or measuring employee exposure at such locations

and intervals, and in such manner as may be neces-

sary for the protection of employees. In addition,

where appropriate, any such standard shall pre-

scribe the type and frequency of medical examina-

tions or other tests which shall be made available,

by the employer or at his cost, to employees exposed

to such hazards in order to most effectively deter-

mine whether the health of such employees is ad-

versely affected by such exposure. In the event such

medical examinations are in the nature of research,

as determined by the Secretary of Health and Hu-

man Services, such examinations may be furnished

at the expense of the Secretary of Health and

Human Services. The results of such examinations

or tests shall be furnished only to the Secretary or

the Secretary of Health and Human Services, and,

at the request of the employee, to his physician. The

Secretary, in consultation with the Secretary of

Health and Human Services, may by rule promul-

gated pursuant to section 553 of title 5, make ap-

propriate modifications in the foregoing require-

ments relating to the use of labels or other forms

of warning, monitoring or measuring, and medical

examinations, as may be warranted by experience,

30a

information, or medical or technological develop-

ments acquired subsequent to the promulgation of

the relevant standard.

29 C.F.R. § 1910.1043, 50 Fed.Reg. 51173 (Dec. 13,

1985), in pertinent part provides:

’

(a) (3) Only paragraphs (h) Medical surveil-

lance, (k) (2)-(4) Recordkeeping—Medical Records,

and Appendices B, C and D of this section apply in

all work places where employees exposed to cotton

dust engage in cottonseed processing or waste proc-

essing operations.

* * * >

(h) Medical surveillance—i(1) General. (i) Each

employer covered by the standard shall institute a

program of medical surveillance for all employees

exposed to cotton dust.

(ii) The employer shall assure that all medical

examinations and procedures are performed by or

under the supervision of a licensed physician and

are provided without cost to the employee.

(ili) Persons other than licensed physicians, who

administer the pulmonary function testing required

by this section shall have completed a NIOSH-

approved training course in spirometry.

(2) Initial examinations. The employer shall pro-

vide medical surveillance to each employee who is or

may be exposed to cotton dust. For new employees,

this examination shall be provided prior to initial

assignment. The medical surveillance shall include

at least the following:

(i) A medical history;

(ii) The standardized questionnaire contained in

Appendix B; and

(iii) A pulmonary function measurement, includ-

ing a determination of forced vital capacity (FVC)

3la

and forced expiratory volume in one second (FEV,),

the FEV,/FVC ratio, and the percentage that the

measured values of FEV, and FVC differ from the

predicted values, using the standard tables in Ap-

pendix C. These determinations shall be made for

each employee before the employee enters the work-

place on the first day of the work week, preceded by

at least 35 hours of no exposure to cotton dust. The

tests shall be repeated during the shift, no less than

4 and and no more than 10 hours after the beginning

of the work shift; and, in any event, no more than

one hour after cessation of exposure. Such exposure

shall be typical of the employee’s usual workplace

exposure. The predicted FVE, and FVC for blacks

shall be multiplied by 0.85 to adjust for ethnic dif-

ferences.

(iv) Based upon the questionnaire results, each

employee shall be graded according to Schilling’s

byssinosis classification system.

(3) Periodic examinations. (i) The employer shall

provide at least annual medical surveillance for all

employees exposed to cotton dust above the action

level in yarn manufacturing, slashing and weaving,

cotton washing and waste house operations. The

employer shall provide medical surveillance at least

every two years for all employees exposed to cotton

dust at or below the action level, for all employees

exposed to cotton dust from washed cotton (except

from washed cotton defined in paragraph (n) (3) of

this sectio. ‘, and for all employees exposed to cot-

ton dust in cottonseed processing and waste process-

ing operations. Periodic medical surveillance shall

include at least an update of the medical history,

standardized questionnaire (App. B-111), Schilling

byssinosis grade, and the pulmonary function meas-

urements in paragraph (h)(2) (iii) of this section.

(ii) Medical surveillance as required in paragraph

(h) (3) (i) of this section shall be provided every

32a

six months for all employees in the following cate-

gories:

(A) An FEV, of greater than 80 percent of the

predicted value, but with an FEV, decrement of 5

percent or 200 ml. on a first working day;

(B) An FEV, of less than 80 percent of the pre-

dicted value; or

significant change in questionnaire findings, pul-

monary iunction results, or other diagnostic tests

have occurred.

(iii) An employee whose FEV, is less than 60 per-

cent of the predicted value shall be referred to a

physician for a detailed pulmonary examination.

(iv) A comparison shall be made between the cur-

rent examination results and those of previous exami-

nations and a determination made by the physician

as to whether there has been a significant change.

(4) Information provided io the physician. The

employer shall provide the following information to

the examination [sic] physician:

(i) A copy of this regulation and its Appendices;

(ii) A description of the affected employee’s duties

as they relate to the employee’s exposure;

(iii) The employee’s exposure level or anticipated

exposure level;

(iv) A description of any personal protective

equipment used or to be used; and

(v) Information from previous medical examina-

tions of the affected employee which is not readily

available to the examining physician.

(5) Physician’s written opinion. (i) The employer

shall obtain and furnish the employee with a copy of

a written opinion from the examining physician con-

taining the following:

83a

(A) The results of the medical examination and

tests including the FEV,, FVC, AND [sic] FEV,/

FVC ratio;

(B) The physician’s opinion as to whether the

employee has any detected medical conditions which

would place the employee at increased risk of mate-

rial impairment of the employee’s health from expo-

sure to cotton dust;

the employee’s exposure to cotton dust or upon the

employee’s use of the respirators including a deter-

mination of whether an employee can wear a negative

pressure respirator, and where the employee cannot,

a determination of the employee’s ability to wear a

powered air purifying respirator; and,

(D) A statement that the employee has been

informed by the physician of the results of the

medical examination and any medical conditions

which require further examination or treatment.

(ii) The written opinion obtained by the employer

shall not reveal specific findings or diagnoses un-

related to occupational exposure.

* * * *

(k) (2) Medical surveillance. (i) The employer

shall establish and maintain an accurate medical

record for each employee subject to medical surveil-

lance required by paragraph (h) of this section.

(ii) The record shall include:

(A) The name and social security number and

description of the duties of the employee;

(B) A copy of the medical examination results

including the medical history, questionnaire response,

results of all tests, and the physician’s recommenda-

tion;

34a

(D) Any employee medical complaints related to

exposure to cotton dust;

(E) A copy of this standard and its appendices,

except that the employer may keep one copy of the

standard and appendices in the medical surveillance

record of each employee; and

(F) A copy of the information provided to the

physician as required by paragraph (h) (4) of this

section.

(iii) The employer shall maintain this record for

at least 20 years.

(3) Availability. (i) The employer shall make all

records required to be maintained by paragraph (k)

of this section available to the Assistant Secretary

and the Director for examination and copying.

(ii) Employee exposure measurement records and

employee medical records required by this paragraph

shall be provided upon request to employees, desig-

nated representatives, and the Assistant Secretary in

accordance with 29 CFR 1910.20(a)-(e) and (g)-(i).

(4) Transfer of records. (i) Whenever the em-

ployer ceases to do business, the successor employer

shall receive and retain all records required to be

maintained by paragraph (k) of this section.

(ii) Whenever the employer ceases to do business,

and there is no successor employer to receive and

retain the records for the prescribed period, these

records shall be transmitted to the Director.

(iii) At the expiration of the retention period for

the records required to be maintained by this section,

the employer shall notify the Director at least 3

menths prior to the disposal of such records and shall

transmit those records to the Director if the Director

requests them within that period.

(iv) The employer shall also comply with any

additional requirements involving transfer of records

set forth in 29 CFR 1910.20(h).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.