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American Petroleum Inst. v. OSHA

Citation: 8 ELR 20790
No. Nos. 78-1253 et al., 581 F.2d 493/(5th Cir., 10/05/1978)

On petitions for review presented by several industrial manufacturers, the Fifth Circuit vacates a work place rule promulgated by the Occupational Safety and Health Administration limiting occupational exposure to benzene. That portion of the regulation limiting airborne concentrations to one part per million has not been shown by the agency through empirical studies to be reasonably necessary to the maintenance of work place safety, and it therefore violates the requirement of the Occupational Safety and Health Act that such regulations be supported by substantial evidence. In addition, the statutory term "reasonably necessary" requires the agency to balance the expected benefits of safety and health standards against the expected costs. Since the agency did not undertake to assess the benefits of the exposure standard, its duty was not met in this case. With respect to that portion of the regulation limiting dermal contact with benzene, the agency deliberately declined to obtain readily accessible data which were necessary to document the magnitude of the hazard, and it therefore violated its statutory mandate to consider the best available evidence. These portions of the benzene standard are set aside; since their validity is necessarily tied to the validity of the remainder of the benzene regulations, the court vacates the entire rule.

Counsel for Petitioners
Edward W. Warren
Kirkland, Ellis & Rowe
1776 K St. NW, Washington DC 20006
(202) 857-5000

Counsel for Respondents
Nancy L. Southard
Office of the Solicitor
Department of Labor, Washington DC 20210
(202) 523-6640

Counsel for Intervenor-Petitioner Manufacturing Chemist Ass'n
Andrew T. A. MacDonald
Wilmer, Cutler & Pickering
1666 K St. NW, Washington DC 20006
(202) 872-6200

Counsel for Intervenor-Respondent AFL-CIO
Jeremiah Collins
1000 Connecticut Ave. NW, Washington DC 20036
(202) 833-9340

Before COLEMAN, CLARK, and TJOFLAT, Circuit Judges.