Opposition Brief — National Cottonseed Products Ass'n v. McLaughlin

Supreme Court brief1988

Ask Donna

What actually matters in this document.

Text

No. 87-1214

OCTOBER TERM, 1987

NATIONAL COTTONSEED PRODUCTS ASSOCIATION,

PETITIONER

ANN MCLAUGHLIN, SECRETARY OF LABOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION

CHARLES FRIED

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

GEORGE R. SALEM

Solicitor of Labor

ALLEN H. FELDMAN

Associate Solicitor for

Special Appellate and

Supreme Court Litigation

MARY —HELEN MAUTNER

Counsel for Appellate Litigation

CHRISTINE L. OWENS

Attorney

Department of Labor

Washington, D.C. 20210

“

~ A

QUESTION PRESENTED

Whether the Occupational Safety and Health Adminis-

tration’s cotton dust standard properly requires monitor-

ing and medical testing of cottonseed processing

employees, in order to protect the health of especially

susceptible employees and to check the accuracy of the

risk assumptions underlying removal of a longstanding ex-

posure limit.

(1)

TABLE OF CONTENTS

(111)

Page

ES Rn re ]

PVE 8 we ee ee Deus Ee eee sk bs eS ]

aya ev ua seu akdsasensbandendus 6 2

ee ae ng wey dsp dk ob Ok ke oD dae oes 9

aan Sse a es poh be 4 5d hod w 0 ww 14

TABLE OF AUTHORITIES

Cases:

AFL-CIO v. Marshall, 617 F.2d 636 (D.C. Cir. 1979),

aff'd in part and vacated in part sub nom. American

Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490

ad a ba oes bya Xs ee ada ey eke as 3

Cotton Warehouse Ass’n v. Marshall, 449 U.S 809

es Gat ig Bn'a-d p ou sk bk be ae ew 4

Forging Indus. Ass’n v. Secretary of Labor, 773 F.2d 1436

Ee So ene re 10

GAF Corp. v. Occupational Safety & Health Review

Comm’n, 561 F.2d 913 (D.C. Cir. 1977) ............. —

Industrial Union Dep’t v. American Petroleum Inst., 448

ee ie og ono hd wae as «de aaa 1% passim

Texas Independent Ginners Ass’n v. Marshall, 630 F.2d

ee bak NR asad ease cekeawaes 12, 13

United Steelworkers v. Marshall, 647 F.2d 1189 (D.C.

Cir. 1980), cert. denied, 453 U.S. 913 (1981) .......... 10

Statutes and regulations: ’

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

Se a ee 2

ES Fr NED nc cc cca casa tewaecnuces 2, 10

ES el! y a F

10, 11, 13, 14

EE y a

RE OR) 2

OR Er te, MENTE ove ccc cseceeas a, ¥f

ES ae a

EE es i

my aran-rremey Act, 41 U.S.C. 35f6) ... eee ees 2

Regulations — Continued: Page

29 C.F:

Section 1910. 1063GIMZ) ..... 5. cc ccc cece cece cuns 5

Section 1910. 1043(k)(2)-(4) ........ ccc cece ccc eeee 5, 6

Miscellaneous:

41 Fed. Reg. 56498 (1976) ......... cece eee eee ee eee 3

43 Fed. Reg. (1978):

SU sc dok ee nhs ahen tn eeeqauens eee deen hss

| i er Ar rere rth rere eer ee

“Ere rrr Peer rere eer err rT erry ee.

48 Fed. Reg. 26966-26967 (1983) ..........-.: gooey

50 Fed. Reg. (1985):

> WwW WwW Ww

S| Se eer Ty errr reer yr eee. 4

we tb 3) ere eee sr 4,5

ie, SERS OSOGEE ko kacadeuvesdcceensaneen cay aws 4

“ren wre er revi rr ort eri tir .. 5

“‘— \). Speer Ne MEENA IN ne cna LN 4, 5,

ee MDNR oo. a cn castoutexearaeensanes 5, 10, 13

Re ce) Sao uci ke enin eee tara 5, 6, 11

Jn the Supreme Court of the Anited States

OCTOBER TERM, 1987

No. 87-1214

NATIONAL COTTONSEED PRODUCTS ASSOCIATION,

PETITIONER

ANN MCLAUGHLIN, SECRETARY OF LABOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-23a)

is reported at 825 F.2d 482. The Secretary of Labor’s

amended cotton dust standard and statement of reasons in

support of the regulation appear at 50 Fed. Reg.

§1120-51179 (1985).

JURISDICTION

The judgment of the court of appeals (Pet. App.

24a-25a) was entered on August 7, 1987. A timely petition

for rehearing, with suggestion of rehearing en banc, was

denied on October 23, 1987 (Pet. App. 26a-27a). The peti-

tion for a writ of certiorari was filed on January 20, 1988.

This Court’s jurisdiction is invoked under 28 U.S.C.

1254(1).

(1)

STATEMENT

| Ihe Occupational Safety and Health Act

ot 197

29 U.S.C. 651 ef seq. (the Act), empowers the Secretary

Labor to adopt occupational satety and health standards

the Act

appropriate

Which are -detined by

quirements “reasonably necessary

Section

3(8)

Oy]

‘e) |

vide sale or healthtul employment and places ot

Section

ot the

ment” (29 U.S.C.

Secretary, within two

Without tormal rulemaking proceedings,

cupational safety or health standards existing

consensus” ol

652(8)).

Years

H(a)

Act’s enactment

requl

‘Mplos

red

tO adopt as

“established Federal standards” (29

“natlo

U.S

nal

(

i} .

}

6$5(a)). In addition, Section 6(b) of the Act authorizes the

Secretary

through notice

655(5)). Whenever a rule promulgated pursuant

tO promulgate,

mody

6(b)(8) “ditters substantially

COISCHSUS standard,” [ne Secretary must

Federal Register the

effectuate the purposes of” the Act (29 U.S.¢

Section 6(b)(5) requ.res

“tOAIC Materials of

hust promuigate (he stanaara

Dest A2VallaDle evidence,

DPOtectionl

PLOPLIAale,

AlINALIONNS OF OLTICT Les

O TWOSL CLITCCLINeLY

LeHIPIOVees ‘ t{UVeCESel\

)

PCRUIALCU TlaZdalU (2Y {

in > l, Lai SU

t\UOplea le SLaALLGATU

ACL. +] > (ee),

i . } iv \

si\daNnUalrUS ALSO

)

easibie (29

and comment

(Nal In

revoke

rulemaking (29

11)

revulating

Wilcll,

655(b)(5)). Whe

il)

-XISTINL

harmiul physical agents,

Ofl

iL clhplOoyers

UCLCEIIIIC

iifected

HSS(DO)

Aidt

(

SEI

CSLAUTISIICU

(HK)

tit

ity

WHICTHIC!

/)).

“Shall prescribe *

et TOT

reasons the rule adopted will “be

. 655(b)(8)).

the S

Lie UaSs

Will provide the greatest

| \

ational

Nn in

VAPOSUTE

ecrel

Is ol

ftandard

LO Section

alr’

posure to airborne concentrations of cotton dust (Pet.

App. 3a). In 1976, the Occupational Safety and Health

Administration (OSHA) announced its intention to pro-

mulgate a permanent Section 6(b) cotton dust standard (41

Fed. Reg. 56498), and after amassing a voluminous

record, published a final rule in 1978 covering all aspects

of cotton dust exposure in textile and non-textile industries

(43 Fed. Reg. 27350).' For the cottonseed processing in-

dustry, in which petitioner’s members are engaged, the

1978 standard prescribed a permissible exposure limit

(PEL) of 500 ug/m3 and required cottonseed oil mills to

institute medical surveillance programs, providing for ini-

tial placement and annual medical screening of employees

(Pet. App. 3a).?

This standard never took effect for cottonseed process-

ing and other non-textile industries, however, because of

litigation before the court of appeals and this Court. AFL-

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

part and vacated in part sub nom. American Textile Mfrs.

Inst., Inc. v. Donovan, 452 U.S. 490 (1981).3 Accordingly,

the cottonseed processing industry has remained con-

tinuously subject to the Section 6(a) PEL of 1000 ug/m3

(Pet. App. 3a).

' The toxic nature of cotton dust, its acute and chronic effects on

pulmonary function, and the history of its regulation are fully dis-

cussed in American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490

(1981).

2 Cottonseed processing involves breaking down untreated cot-

tonseed into linters (coarse fuzz) and seed hulls and kernels. The proc-

ess is dusty and the linters contain contaminants similar to those in

baled cotton fiber. After cleaning, linters are baled and the seed rem-

nants are used to produce cottonseed oil and meai. 43 Fed. Reg.

27350, 27369 (1978).

3 The court of appeals remanded the record for cottonseed process-

ing only for reconsideration of the standard’s economic feasibility.

AFL-CIO v. Marshall, 617 F.2d at 669. Thereafter, when this Court

remanded the other non-textile segments tor reconsideration in light

of Industrial Union Dep't vy. American Petroleum Inst., 448 U.S. 607

On remand from the litigation, the Secretary reviewed a

number of cross-sectional health studies of American and

foreign cottonseed processing workers, as well as medical

expert testimony regarding health risks and protective

measures (Pet. App. 7a; SO Fed. Reg. 51133-51137 (1985);

48 Fed. Reg. 26966-26967 (1983)). The studies of domestic

cottonseed workers uniformly demonstrated that a

number of cottonseed workers manifest impaired lung

function at current levels of cotton dust exposure in cot-

tonseed oil mills, which is especially linked to length of

employment, exposure at early steps of processing, general

and specific allergies, and smoking (Pet. App. 7a; 50 Fed.

Reg. 51133-51134 (1985)). There was, however, no affirm-

ative evidence of increased prevalences of byssinosis,* or

of a dose-response relationship at current exposure levels

(ibid.). Studies of foreign cottonseed workers, however,

showed increased prevalences of byssinosis and other

chronic lung disease at very high exposure levels (Pet.

App. 7a, 8a; 50 Fed. Reg. 51133, 51135 (1985)). All

medical experts agreed that the dust in cottonseed oil mills

is not a “mere nuisance,” but rather has “ ‘some biologic

activity of a kind similar to that found in cotton textile

mills’” (Pet. App. 7a; 50 Fed. Reg. 51134-51135 (1985)

(citation omitted)). These experts unanimously recom-

mended medical surveillance of those working in the cot-

tonseed industry to protect the health of especially suscep-

tible workers and to develop an appropriate evidentiary

(1980), see Cotton Warehouse Ass’n v. Marshall, 449 U.S. 809 (1980),

the Secretary undertook a similar review for cottonseed processing

too.

* Byssinosis, also known as “brown lung” disease, is a respiratory

ailment characterized by coughing, breathlessness or tightness of the

chest. See 50 Fed. Reg. 51125 (1985).

base for making an accurate assessment of true risk (Pet.

App. 7a; 50 Fed. Reg. 51134 (1985)).°

Applying the significant risk analysis mandated by /n-

dustrial Union Dep’t v. American Petroleum Inst., 448

U.S. 607 (1980) [hereinafter Benzene],° the Secretary

found that there was “not sufficient evidence of significant

risk [within the cottonseed industry] which could be

substantially reduced by lowering exposure limits” (50

Fed. Reg. 51135 (1985)). The Secretary therefore declined

to establish a new, lower Section 6(b) exposure limit

(ibid.). Similarly, the Secretary concluded from the same

evidence that removal of the existing Section 6(a) PEL

would not lead to significant health risk (SO Fed. Reg.

51136 (1985)).

The Secretary concluded, however, that he could find

no significant risk in removing the existing PEL only if a

“backstop” program of medical monitoring of employees

was retained, in order to assess the correctness of that

judgment and to protect unusually susceptible workers (50

Fed. Reg. 51135-51136 (1985)). Accordingly, the Secretary

imposed on the industry the medical surveillance and

related recordkeeping requirements of the cotton dust

standard.’ The Secretary found direct support for this

’ One expert stressed that the true risk for cottonseed workers may

be underestimated by the large cross-sectional studies in the record (50

Fed. Reg. 51133-51134 (1985)). He noted that medical surveillance

would provide the type of longitudinal data necessary to make an ac-

curate assumption about the real level of risk in cottonseed oil mills

(ibid.).

6 The Secretary described his analytical approach to the significant

risk analysis, including the factors to be taken into account in making

rational policy judgments regarding risk, at 50 Fed. Reg. 51131

(1985).

? These provisions, set out at 29 C.F.R. 1910 1043(h)(2) and

(k)(2)-(4), require employers to provide initial placement medical

screening, followed by routine screening every two years, except for

action in a passage in Benzene (448 U.S. at 657-658),

where this Court approved in dictum “a backstop in the

form of monitoring and medical testing,” imposed in con-

junction with standards set at exposure levels below those

of significant risk. Such monitoring allows OSHA to

“ ‘keep a constant check on the validity of the assumptions

made in developing the permissible exposure limit, giving

it a sound evidentiary basis for decreasing the limit if it

was initially set too high’ ” and to “ ‘ensure that workers

who were unusually susceptible * * * could be removed

from exposure before they had suffered any permanent

damage’ ” (SO Fed. Reg. 51135 (1985) (quoting 448 U.S. at

658)).

This dictum applied here, the Secretary explained,

because the decision to remove exposure limits was based

on less-than-perfect evidence and two of the reasons cited

by Benzene for a medical surveillance backstop were

directly implicated by the record. Specifically, a backstop

was necessary to “check on the validity of the as-

sumption[{]” that deregulation would not lead to signifi-

cant health risks, since exposures might rise after the PEL

was removed and the foreign studies showed an increased

incidence of chronic lung disease at higher exposure levels,

and thus an affirmative dose-response relationship (50

Fed. Reg. 51135 (1985)). Moreover, there was a clear

medical need for such monitoring to identify and protect

especially susceptible workers who, even at current ex-

posure levels, had been shown to be at risk (/d. at 51136).

Accordingly, the Secretary determined not to exempt the

those employees as to whom the results of testing indicate that more

regular testing (/.e., every six months) is appropriate. The tests include

completion of a prescribed questionnaire; objective pulmonary func-

tion tests; and completion of a physician’s report containing specified

information. The recordkeeping requirements of Section

1910.1043(k)(2)-(4) are keyed to these medical screening provisions.

cottonseed processing industry from the medical

surveillance requirements of the cotton dust standard.

3. Petitioner National Cottonseed Products Associa-

tion sought review, pursuant to 29 U.S.C. 655(f), of the

cotton dust standard as it applies to the cottonseed proc-

essing industry. The court of appeals upheld the medical

surveillance requirements as “sanction[ed]” by “an

unusually precise dictum in Benzene” (Pet. App. 4a). The

court explained that the Benzene Court specifically ad-

dressed the Secretary’s regulatory options where she is

“uncertain whether the residual risk [at the selected ex-

posure level is] significant” (id. at 6a). In such cir-

cumstances, the Secretary has authority, as explained in

Benzene, to require backstop employee health monitoring

to check the validity of the assumptions regarding the ex-

posure limit selected, to develop sound evidence for

changing the exposure limit, and to “ensure that unusually

susceptible workers could be removed from exposure

before they suffered permanent damage” (ibid., citing

Benzene, 448 U.S. at 657-658). Thus, Benzene permits

“backstop monitoring” where the “ ‘less-than-perfect’ ”

evidence upon which OSHA relies “indicates * * * a real

possibility of significant health risks under the other

aspects of the standard adopted (here, no regulation at

all)” (Pet. App. 8a).

The court also found the evidence in the rulemaking

record sufficient to “invoke the conditions suggested by

** * Benzene for a backstop monitoring requirement”

(Pet. App. 8a). The studies of cottonseed workers and ex-

perts’ testimony disclosed that, at existing exposure levels,

domestic cottonseed workers as a group suffer from

decreased lung function, even though they do not ex-

perience an increased incidence of byssinosis (/d. at 7a).

And a subset of hypersensitive workers suffer from

respiratory ailments (id. at 4a, 7a). Moreover, foreign cot-

tonseed workers subject to higher doses than domestic

workers experience significant health effects, suggesting a

dose-response relationship (id. at 7a). Thus, the Secretary

appropriately concluded 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’ ” (id. at 4a (quotation in original)).

Responding to petitioner’s argument that medical

surveillance may be required only where OSHA identifies

some “ ‘reasonably attainable level’ ” at which harm will

occur, the court of appeals noted that OSHA was

hampered in making such a determination here because of

the “ambiguous relation between reality and the pre-

existing regulation” (Pet. App. 6a).* The court of appeals

concluded, however, that application of the Benzene dic-

tum was justified by the evidence of risk before OSHA,

- from which it reasonably inferred that exposures might

rise, to the detriment of worker health, with the removal

of exposure limits (id. at 6a-7a). The court agreed with the

Secretary that under these circumstances, medical

surveillance was necessary both to protect worker health

and to provide an evidentiary basis for assessing the validi-

ty of the assumptions upon which OSHA relied in

eliminating the PEL.’

* The court noted general agreement that the cottonseed industry

“has not complied with the 1000 ug/m3” PEL, but stressed that “there

is nO concession that the regulations of the past 16 years have been ab-

solutely without effect,” and that one study found that 16 of 18 mills

maintained mean exposure levels at or below the PEL (Pet. App. 6a).

¥ The court also rejected petitioner’s claims that compliance with

the medical surveillance requirements is not technologically or

economically feasible for the industry. Petitioner does not seek review

of this aspect of the court’s ruling, although it asserts that medical

surveillance is costly and inconvenient (Pet. 14). The court of appeals

ARGUMENT

The decision of the court of appeals is correct and does

not conflict with any decision of this Court or of any other

court of appeals. Accordingly, the petition for a writ of

certiorari should be denied.

1. The court below correctly held that the Secretary’s

decision to require “backstop” medical surveillance of cot-

tonseed industry workers falls squarely within an

“unusually precise” dictum in the Benzene decision. The

central thrust of the pertinent passage (448 U.S. at

657-658) is that backstop monitoring may be required even

at exposure levels with respect to which no significant risk

is shown. To justify such “backstop” monitoring, the

Secretary must reasonably conclude, based on the best

available evidence, that there is residual risk at those lower

exposure levels which warrants prophylactic regulatory ac-

tion. See 448 U.S. at 657-658. As the court of appeals

held, the Secretary properly found that the rulemaking

record invoked precisely the same conditions identified in

Benzene as warranting backstop monitoring.!°

First, as the court found, the record conclusively

established a class of unusually susceptible cottonseed

upheld OSHA's conclusion that the costs of compliance here with the

medical surveillance requirements were minuscule (slightly over

$70,000 annually, or less than 0.01% of the industry’s annual gross

revenues of $777.6 million), finding that any errors made by OSHA in

its cost analysis were “trivial” and inconsequential (Pet. App.

lla-12a).

'® Section 6(f) of the Act, 29 U.S.C. 655(f), prescribes “substantial

evidence” review of the Secretary’s determinations. The court below

carefully reviewed the evidence upon which the Secretary had relied in

this case, as well as contradictory evidence in the record, and found

the evidence supported the medical surveillance standard. Petitioner

does not challenge the court’s decision on substantial evidence

grounds

workers who suffered impaired lung function even at cur-

rent levels of cotton dust exposure. As in Benzene, medical

surveillance would protect their health by permitting their

removal from exposure. See Pet. App. 6a; compare 50

Fed. Reg. 51135-51136 (1985) (monitoring allows removal

of unusually susceptible persons from particularly dusty

jobs); Benzene, 448 U.S. at 658 (footnote omitted)

(monitoring “could ensure that workers who were

unusually susceptible to benzene could be removed from

exposure before they had suffered any permanent

damage’”).!!

The record also demonstrated clear increased

prevalences of byssinosis and other chronic lung diseases

among workers in foreign cottonseed oil mills, where ex-

posure levels are higher. Given the real possibility that ex-

posures in American cottonseed mills might rise with the

removal of the Section 6(a) PEL,'? backstop monitoring

'' Numerous decisions uphold the imposition of medical testing and

other remedial requirements at action levels lower than established ex-

posure limits, in order to protect especially susceptible workers. See,

e.g., GAF Corp. v. Occupational Safety & Health Review Comm'n,

561 F.2d 913 (D.C. Cir. 1977) (cited approvingly in the Benzene

discussion of backstop surveillance, upholding the requirement of

medical examinations for employees exposed to any airborne concen-

trations of asbestos); Forging Indus. Ass’n v. Secretary of Labor, 773

F.2d 1436, 1443-1444 (4th Cir. 1985) (en banc) (upholding hearing

conservation amendment to noise exposure standard, providing for

testing and appropriate follow-up measures, as needed, for employees

exposed to noise levels at action levels below the PEL); United

Steelworkers v. Marshall, 647 F.2d 1189, 1237 (D.C. Cir. 1980), cert.

denied, 453 U.S. 913 (1981) (upholding the medical removal provi-

sions of the lead standard, keyed to the results of medical surveillance

and biological monitoring cf employees exposed to lead concentra-

tions significantly lower than the PEL).

‘2 Petitioner argues (Pet. 14) that industry was not in compliance

with the existing PEL, and thus that it was unreasonable to assume

was necessary to check the validity of the basic assumption

that elimination of the PEL would not give rise to signifi-

cant risk. There is thus no merit to petitioner’s contention

(Pet. 12-13) that the court below sanctioned impermissible

employer-financed data gathering of merely possible

health risks. See Pet. App. 7a; 50 Fed. Reg. 51136 (1985)

(medical surveillance “provide[s}] a backstop if [OSHA’s]

judgment [on significant risk] is incorrect”); Benzene, 448

U.S. at 658 (footnote omitted) (OSHA “could keep a con-

stant check on the validity of the assumptions made in

developing the permissible exposure limit, giving it a

sound evidentiary basis for decreasing the limit if * * * in-

itially set too high”). This Court specitically approved this

“type of information-gathering” as contemplated by Sec-

tion 6(b)(7), “which empowers the Secretary to require

medical examinations to be furnished io employees ex-

posed to certain hazards and potential hazards, ‘in order

to most effectively determine’ ” whether worker health is

adversely affected by such exposure. Benzene, 448 U.S. at

658 n. 66 (citations omitted; emphasis added). Thus, the

Secretary properly concluded that significant risk would

not result from removal of the Section 6(a) PEL only it

conditioned on backstop medical surveillance.'* In these

that elimination of the PEL might lead to material health impairment.

The court of appeals correctly rejected this argument, stressing that

because “there is no concession that the regulations of the past 16

years have been absolutely without eltfect,” and, in tact, some record

evidence reflects substantial compliance, the Secretary could “tairls

inter” that removal ot the PEL could result in increased exposure (Pet.

App. 6a).

’ Seizing on the precise tact situation described ii Benzene, peu-

lioner argues that the dictum must be read in exceedingly literal

fashion, aad that backstop monitoring may only be miposed as an ad-

Junet to a PEL or at levels at Which significant tisk is identitied (Pet.

10-11). The court of appeals rightly rejected this coustramed ap-

circumstances, the court of appeals correctly held that

Benzene’s “unusually precise dictum” specifically sanc-

tions the backstop medical surveillance standard imposed

on the cottonseed industry in this case.'4

2. Nor does the decision of the court below conflict

with Texas Independent Ginners Ass’n v. Marshall, 630

F.2d 398 (Sth Cir. 1980), as petitioner asserts (Pet. 11-12).

First, the nature of the regulatory actions and their stated

justifications are quite different. The cotton ginning

standard imposed a number of work practices and other

protective measures in addition to medical testing.'’ See

630 F.2d at 402-403. The Secretary rested the standard’s

requirements on a finding of health hazards at existing

unregulated exposure levels. The Fifth Circuit rejected the

standard in its entirety because it concluded that the

Secretary’s finding —characterized as “OSHA’s finding of

proach, which would effectively rob the dictum of its meaning. As the

court of appeals noted, this Court plainly did not confine backstop

monitoring to the precise facts of its hypothetical, nor is there any

sound reason to do so. Rather, the court of appeals correctly recog-

nized that deleting an exposure limit, like lowering or raising a limit, is

a regulatory judgment with respect to which imposition of medical

surveillance as a backstop may be appropriate (Pet. App. 8a).

'* Petitioner erroneously argues (Pet. 11) that this Court would

have upheld the medical surveillance requirements in Benzene if-t

believed that medical surveillance could be imposed in the absence of a

PEL. But this Court specifically noted in Benzene that it was dealing

only with the exposure limits set by the Secretary, and declined to rule

on any other aspects of the standard. See, e.g., 448 U.S. at 630 n.30.

'S In addition to medical surveillance, the cotton ginning standard

required work practice plans to minimize employee exposure to cotton

dust; employee training programs; provision of disposable respirator

masks to all employees desiring them and air powered air purifying

respirators to certain other employees; and posting of workplace

warnings regarding the dangers of cotton dust. See 43 Fed. Reg. 27418

(1978); Ginners, 630 F.2d at 402-403.

a significant risk of a material health impairment” (id. at

407) — was not based on substantial evidence but rather on

“assumptions without an adequate evidentiary basis” (id.

at 409). The Fifth Circuit nowhere discussed or even al-

luded to the circumstances under which the Secretary may

require medical surveillance as a backstop to permitted ex-

posure at levels with respect to which no significant risk is

shown. This omission is understandable since the

Secretary did not justify the requirement on “backstop”

grounds either in rulemaking or in the court of appeals. '®

Ginners is also distinguishable from the decision below,

because, as the Fifth Circuit noted, “the 1971 [Section

6(a)] PEL never applied to the ginning industry * * *” (630

F.2d at 403 n.20), and thus the case did not implicate the

provision of the Act which pemits modification or revoca-

tion of a Section 6(a) standard only if “the rule as adopted

will better effectuate the purposes” of the Act (29 U.S.C.

655(b)(8)). By contrast, the cottonseed industry has been

continuously subject to the Section 6(a) PEL. Thus, to

eliminate the Section 6(a) PEL applicable to the cot-

tonseed industry, the Secretary was obligated to find that

the evidence “affirmatively indicate[s]” that significant

risk is “unlikely to exist” at exposures likely to prevail after

the PEL was eliminated. See 50 Fed. Reg. 51132 (1985).

As explained above, the Secretary determined that this

judgment could be made if, and only if, conditioned on

the availability of backstop medical surveillance. No PEL,

combined with medical surveillance, results in both con-

siderable savings to the industry and protection for highly

susceptible workers and reevaluation of risk, thus better

effectuating the Act’s goal of protecting employee health.

See id. at 51135-51136. In Ginners, on the other hand, the

'¢ Ginners was briefed and argued before Benzene was decided,

even though it was issued shortly after Benzene.

court had no occasion to consider the circumstances under

which a Section 6(a) exposure limit could properly be

revoked or the link between revocation of a Section 6(a)

limit and retention of medical monitoring as a backstop to

thac determination.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.