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Building & Constr. Trades Dep't, AFL-CIO v. Brock

ELR Citation: 18 ELR 20507
Nos. Nos. 86-1359 et al., 838 F.2d 1258/(D.C. Cir., 02/02/1988)

The court reviews the Occupational Safety and Health Administration's (OSHA's) revised permissible exposure level (PEL) for asbestos, upholding OSHA's findings concerning significant risk and feasibility but finding lack of substantial evidence to support various other aspects of the new standard. In 1984, OSHA significantly lowered the PEL for asbestos, and industry and labor groups both challenged the new rule. Considering industry's challenges first, the court holds that OSHA's finding of significant risk to support revision of the standard was supported by substantial evidence. The court holds that OSHA did not err in assuming a 45-year worklife in performing its risk assessment, since §6(b)(5) of the Occupational Safety and Health Act (OSH Act) requires that standards for toxic substances ensure that no employee will suffer material impairment of health even if the employee is exposed to the substance for his working life. The court holds that OSHA's inclusion of smokers in its calculations was not improper, since §6(b)(5) calls on OSHA to set standards so that "no employee" will experience the prohibited level of risk. In addition, smoking does not contribute to all of the asbestos-related diseases that are included in the calculation of significant risk. The court also holds that OSHA's assumption of a constant particulate concentration level equal to that of the PEL was not an error, because such an assumption does not appear to result in a significant gap between the PEL and the actual exposure level that would result from implementation of that PEL. Even if the actual exposure levels were only one-half of the PEL, a finding of significant risk could be supported. Finally, the court holds that a number of technical assumptions that were challenged by industry, such as the use of a linear dose-response model, were supported by studies and were the product of reasoned decisionmaking. Any bias by OSHA toward worker safety was not improper, since its decisions were supported by a body of reputable scientific thought.

The court holds that there is substantial evidence that the revised PEL is technologically feasible. First, the court holds that substantial evidence for the feasibility of the new PEL is not undermined by OSHA's adoption of a new protocol for measurement without having used the methodology of that protocol in its feasibility studies. There is no need for side-by-side comparisons of the new protocol and the methods used by OSHA in its feasibility studies. Although such comparisons may be appropriate when OSHA changes protocols, the agency here has merely adopted a protocol where none had previously prevailed. The new protocol is not markedly different from that used in OSHA laboratories or that urged by industry. In order to guard against random sampling error, OSHA will add the full value of the standard sampling error under the protocol to its measurements in determining compliance. In addition, it does not appear that the new protocol will result in significantly increased asbestos fiber counts. Second, the court holds that a PEL that is achievable through engineering and work practice controls, without the use of respirators, for manufacturing processes involving more than 90 percent of the relevant workforce meets the standards of feasibility. Third, the court holds that the possibility that firms otherwise in compliance will experience uncontrollable, random fluctuations of exposure levels in excess of the PEL does not defeat the technological feasibility of the PEL. OSHA has adopted an enforcement policy that allows a firm to show that the measurement taken during an inspector's visit was unrepresentatively high, whereupon OSHA may reinspect or decline to issue a citation. Though it relies on human discretion, this enforcement policy does not violate §6(b)(5), which requires that standards be expressed in terms of objective criteria wherever practicable. There is no indication that OSHA intends to cite employers for failure to provide respirators on those days when the exposure level uncontrollably fluctuates above the PEL, and thereby require all firms to provide respirators or conduct monitoring at all times.

The court holds that the revised standard is "reasonably necessary" within the meaning of OSH Act §3(8), because the new PEL will not reduce the dangers below the level of significant risk as determined by OSHA, and the industry petitioners have not demonstrated that their less costly alternative would do so. The court next holds that part of the revised asbestos regulation, a categorical ban on the spraying of asbestos products, fails to meet OSH Act §6(f)'s substantial evidence standard. There is evidence in the record that spray-on asbestos products can be encapsulated to prevent the release of asbestos fibers, and similar bans implemented by the Environmental Protection Agency and California specifically exempt such encapsulated products.

The court holds that OSHA's failure to adopt a smoking-control regulation violated OSH Act §6(b)(5). The court rules that a party challenging an OSHA standard bears the burden of demonstrating that the variations it advocates will be feasible and will provide more than a de minimis benefit for worker health. There is evidence that a smoking-control regulation would be both beneficial to worker health and feasible, and OSHA has failed to justify its decision not to implement such a regulation. In the past, OSHA has mandated special treatment of workers with unusually high risk propensities, and has regulated such personal matters as individual appearance.

Turning to union challenges to the revised standard, the court holds that OSHA's failure to issue an even more stringent PEL for certain industrial subgroups is not supported by substantial evidence. Exposure data for the automotive brake and repair industry, which employs 93 percent of all general industry workers exposed to asbestos, indicate that average exposure levels are well below the revised PEL. The remands the case for OSHA to consider setting different standards within industry to reflect variations in feasibility. The court notes that there are many smaller subcategories with average concentrations below the revised PEL, and directs OSHA on remand to explain fully its reasons for choosing a uniform PEL. All petitioners challenge OSHA's failure to issue a short-term exposure limit, and OSHA has decided to reconsider its decision. The court directs the reconsideration to be completed within 60 days of the issuance of the order in this case.

The court next holds that OSHA did not abuse its discretion by failing to set action levels higher than the PEL to trigger certain employer duties such as establishment of regulated areas, since there is no evidence that setting a separate action level would result in a greater than de minimis incremental benefit. Likewise, the court holds that OSHA did not err in allowing employers in the construction industry to use methods other than local exhaust ventilation or wet methods to reduce exposure levels. Next, the court holds that OSHA's failure to require the use of the most protective respirator feasible, instead of any respirator that will protect employees to the degree that they would be protected by the PEL, fails to meet the basic standard of reasoned decisionmaking. OSHA was within its discretion to determine that the incremental gains achievable by use of the most effective respirator feasible would not exceed the incidental non-asbestos hazards of such respirators. However, OSHA designed its respirator requirements so that they would achieve the PEL, rather than requiring the use of all feasible methods to eliminate significant risk. Because OSHA has not explained its reasons for this policy, the court remands the case to the agency for reconsideration. The court also orders the agency to complete its reconsideration of the effectiveness of various respirators without undue delay.

The court holds that the language in the regulations providing exceptions to the general requirement that all covered employers conduct initial asbestos exposure monitoring is within OSHA's discretion, in the absence of a showing that more specific language would achieve more than de minimis health benefits. The court upholds OSHA's judgment that environmental monitoring at the boundaries of regulated areas is unnecessary, since the general monitoring provisions require breathing zone samples from employees even outside the regulated areas. The court also upholds the regulation allowing employers to dispense with periodic monitoring within a regulated area if all employees in the area are equipped with supplied-air respirators, because there is insufficient evidence that eliminating this exception to the monitoring requirement would produce more than a de minimis health gain. The court orders OSHA to clarify that its rule allowing a construction industry employer to terminate periodic monitoring where exposures are below the action level includes a resumption requirement for changed conditions that may increase the exposure level.

The court upholds OSHA's rule establishing when medical surveillance is required for construction workers, since the record does not suggest that expanded surveillance would generate material gains in worker health. The court rejects the argument that OSHA should require annual chest x-rays for construction workers because it is only supported by conclusory statements that most witnesses recommend that approach. The court holds that the time has passed to criticize OSHA's medical questionnaire to be administered by a physician as part of the medical surveillance program, since when the questionnaire was adopted no one proposed an alternative. In addition, the court holds that OSHA's requirement that an examining physician apprise the employer of the results of the examination is within the agency's discretion.

The court holds that there is insufficient evidence to warrant narrowing the warning and labeling requirement exemptions for products in which asbestos is bonded to minimize the release of fibers or for products containing low amounts of asbestos. The court remands for reconsideration the question of whether OSHA should require warnings in languages other than English. The number of non-English-speaking workers in the construction industry is significant, and OSH Act §6(b)(5) directs the agency to provide for all workers. OSHA can avoid imposing the burden of an overinclusive rule by designing it to cover only employers with a significant number of non-English speakers. Warnings in different languages would not contribute to "information overload." The court also remands the issue of whether all construction industry employers should be required to file reports prior to engaging in any asbestos projects. The manner of selecting worksites for inspection, which falls exclusively within the agency's discretion, is different from evaluation of a proposed requirement that would arguably generate better information for making such selections. If such reports would significantly improve employer compliance, then the fact that OSHA necessarily relies largely on self-policing by employers would not justify rejection of the reporting requirement. The court remands for OSHA's consideration the proposal that employers contracting or subcontracting asbestos-related work maintain and transfer to building owners written records of the locations of asbestos in the buildings. It is unclear whether the Act covers building owners.

The court remands the question of whether employers engaged in any kind of asbestos-related construction work should be required to designate "competent persons" to oversee safety measures. OSHA's rules only require the designation of such persons where the regulations require a negative-pressure enclosure. There is evidence in the record that an expanded competent person requirement is needed, and OSHA has not adequately explained its reasons for limiting the requirement. The court holds that OSHA's choice of language in the regulation defining the extent of the competent person's authority is within the agency's discretion, since there is no evidence that making the language more specific would produce more than a de minimis benefit. Finally, the court remands for OSHA's consideration a proposal that the agency clarify exactly what operations are covered under the "small-scale, short-duration" exception to the competent person requirement.

The dissent would require OSHA to reconsider its decision not to require medical surveillance for employees in the construction industry to the same extent required for those in general industry.

Counsel for Petitioner
Elihu I. Leifer
Sherman, Dunn, Cohen, Leifer & Counts
Suite 801, 1125 15th St. NW, Washington DC 20005
(202) 785-9300

Counsel for Respondent
Andrea C. Casson, Cynthia L. Attwood, Joseph M. Woodward
Department of Justice, Washington DC 20530
(202) 633-2000

Before: BUCKLEY and WILLIAMS, Circuit Judges, STANLEY A. WEIGEL[*], Senior District Judge, United States District Court for the Northern District of California.