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Industrial Union Dep't, AFL-CIO v. American Petroleum Inst.

Citation: 10 ELR 20489
No. Nos. 78-911, -1036, 448 U.S. 607/(U.S., 07/02/1980) Aff'd

Affirming the result reached by the Fifth Circuit Court of Appeals, the Supreme Court invalidates a workplace regulation issued by the Occupational Safety and Health Administration (OSHA) reducing the permissible airborne concentration of benzene from 10 parts per million (ppm) to one ppm and prohibiting dermal contact with solutions containing the substance. After reviewing the administrative record in detail, the court concludes that although the evidence showing that there are adverse effects associated with benzene at the 10 ppm level is sketchy at best, it provides sufficient support for the 10 ppm limit. However, the record contains no direct evidence showing that a concentration of one ppm poses any risk, nor that lowering the limit will increase worker safety. OSHA based its decision to lower the standard on its policy of limiting exposure to carcinogens for which there is no known safe exposure level to the lowest level that can feasibly be attained by industry. The Court concludes that this reasoning is based on a misinterpretation of the Occupational Safety and Health (OSH) Act. Section 3(8) of the Act defines health and safety standards as those reasonably necessary to provide safe or healthful employment; § 6(b)(5) of the Act provides that standards must assure that to the extent feasible no employee will suffer material impairment of health. In conjunction, these provisions require the Secretary, before making a standard more strict, to determine that there is a significant health risk at the higher standard and thus that lowering the standard will reduce that risk. In this case the Secretary did not find that it was more likely than not that a significant health risk exists at the 10 ppm level, much less the one ppm level, so that the new standard must fall. The Court emphasizes that while the agency's findings must be based on substantial evidence, § 6(b)(5) of the Act allows it to regulate on the basis of the best available evidence. Therefore, the agency is free to use conservative assumptions, risking on the side of overprotection rather than underprotection, so long as they are supported by a body of reputable scientific thought. In addition, the Court strikes down the agency's dermal contact ban, reasoning similarly that the agency failed to show that in the absence of the standard such exposures present a significant risk.

Chief Justice Burger concurs, stating that once the Secretary of Labor has presented and duly considered the facts, he possesses wide discretion to make decisions as to whether particular health risks are significant. He adds that when the administrative record contains little evidence of health risks, extravagant and comprehensive regulation should be avoided. Justice Powell also concurs, expressing his view that OSHA failed to meet its burden of proof on the question of whether benzene poses a significant risk at 10 ppm. If it had, however, he would interpret the OSH Act to require the agency to determine that the economic costs of the regulation bear a reasonable relation to the expected benefits. In another concurrence, Justice Rehnquist finds that nothing in the text of § 6(b)(5) nor anything in the legislative history of the Act prvides the Secretary with sufficient legislative guidance in formulating standards under that section. Since there are no exigent circumstances justifying such a standardless delegation of power, he would declare the provision unconstitutional.

Justice Marshall, joined by Justices Brennan, White, and Blackmun, dissents from the plurality's reading of the record as well as its interpretation of the Act. In his view, OSHA adequately demonstrated that benzene is a leukemogen and that lowering the permissible exposure limit to one ppm would increase workplace safety. Conceding that the "substantial evidence" standard under which OSHA standards must be reviewed is somewhat more rigorous than the "arbitrary and capricious" standard, Justice Marshall states the judicial review in this context must nevertheless be more deferential than in others because of the complexity of the technical issues, the substantial uncertainty surrounding the scientific issues, and the inseparability of the Secretary's factual and policy judgments. Since the Act requires the Secretary neither to determine the presence of a significant risk nor to balance regulatory costs and benefits, Justice Marshall would uphold the standard.

Counsel for Petitioner Industrial Union Dep't, AFL-CIO
Elliot Bredhoff, General Counsel; George H. Cohen, Robert M. Weinberg, Jeremiah A. Collins
Bredhoff, Gottesman, Cohen & Weinberg
1000 Connecticut Ave. NW, Washington DC 20036
(202) 833-9340

Counsel for Petitioner Secretary of Labor
William Alsup, Ass't Solicitor General; Wade H. McCree, Solicitor General; Frank H. Easterbrook, Deputy Solicitor General
Department of Justice, Washington DC 20530
(202) 633-2201

Carin Ann Clauss, Solicitor; Benjamin W. Mintz, Ass't Solicitor; Allen H. Feldman, Dennis K. Kade, Nancy Southard, Diane E. Burkley
Department of Labor, Washington DC 20210
(202) 523-6640

Counsel for Respondents American Petroleum Inst. et al.
Edward W. Warren, Arthur F. Sampson III
Kirkland & Ellis
1776 K St. NW, Washington DC 20006
(202) 857-5000

Stark Ritchie, Martha Beauchamp
American Petroleum Inst.
2101 L St. NW, Washington DC 20036
(202) 457-7000

Counsel for Respondents Rubber Mfgr's Ass'n et al.
Charles F. Lettow, John C. Murphy
Cleary, Gottlieb, Steen & Hamilton
1250 Connecticut Ave. NW, Washington DC 20036
(202) 223-2151