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Citation: 14 ELR 20901
No. Nos. 78-1959 et al., 746 F.2d 483/(9th Cir., 10/30/1984)

The court rules that the Occupational Health and Safety Administration's (OSHA's) maximum permissible exposure level (PEL) for airborne arsenic nonferrous metal smelting facilities is supported by substantial evidence. The court first upholds OSHA's conclusion that the current PEL of 500 micrograms per cubic meter (ug/m3) poses a significant health risk and that the risk would be diminished by lowering the standard to 10 ug/m3. It holds that the substantial evidence test requires the court to defer to the agency's resolution of conflicts between equally respectable evidence and does not require anything approaching scientific certainty. Also, the agency has discretion, within reasonable bounds, to determine how small a risk is still significant. The court rules that OSHA's best estimates of risks of excess cancer deaths of 400 per thousand with airborne arsenic at 500 ug/m3 and eight per thousand at 10 ug/m3 are supported by substantial evidence. Petitioners' methodological attack on the studies supporting OSHA's findings fails to undermine their scientific validity and petitioners' contrary study is not even on a par due to its own more serious methodological shortcomings. While the evidence is less compelling on this point, OSHA also had substantial evidence to support its inclusion of pentavalent arsenic in the PEL.

The court next upholds OSHA's finding that the 10 ug/m3 standard is technologically and economically feasible. OSHA properly required the limited use of respirators as a supplement to engineering and work practice controls to meet the standards at high-intake smelters. Though the engineering and work practice controls need supplements in limited cases, that does not render them infeasible. The court rejects petitioners' argument that requiring both respirators and work practice controls is redundant, making the standard "unreasonable" in violation of §3(8) of the Occupational Safety and Health Act. The many problems with respirator use make them inadequate, standing alone, to protect worker health. Though the "reasonableness" criterion of §3(8) may modify the "feasibility" criterion of §6(b)(5), it neither supplants it, nor turns it into a cost-benefit test. The court also rules that §3(8) does not require OSHA to ensure in the rulemaking that the industrywide PEL is feasible for every plant. Section 6(b)(5) allows OSHA to set standards based on general industry feasibiity where there is so much variation among individual plants, as there is in the smelting industry, that plant-specific standards are not practicable to develop. The court rejects petitioners' argument that by addressing only general feasibility in the rulemaking, OSHA essentially deferred the feasibility analysis to the compliance stage, and rules that in this proceeding it need not address the effect of OSHA's approach on the burden of proof in enforcement proceedings. The court also rejects petitioners' void-for-vagueness argument and finds OSHA's decision that the proposed standard is feasible for the arsenical chemicals industry supported by substantial evidence.

Turning to economic feasibility, the court upholds OSHA's finding that the proposed standard will not threaten massive dislocation to, or imperil the existence of, the industry. Petitioners' argument that OSHA should have considered the economic impact on the industry should ASARCO's Tacoma smelter close due to the high costs of the arsenic standard is moot since the smelter recently was closed for other reasons. OSHA's failure to consider the costs of compliance with recent air pollution control regulations also is not fatal to the rulemaking, because the regulations were not in place at that time OSHA acted. OSHA also had substantial support for its consideration of the likelihood that some of the smelters' cost of compliance could be passed back to the mines and its decision to consider profits from all the industry's operations, not just smelting. While there was strong evidence on both sides of the issue, the court must defer to the agency's expertise.

Finally, the court upholds OSHA's refusal to reopen the record on remand to consider new evidence on feasibility. The agency's decision may only be set aside for abuse of discretion. The court finds no abuse where petitioners did not avail themselves of other opportunities in the lengthy series of proceedings on the proposed airborne arsenic PEL to introduce the new evidence, and OSHA arguably would have violated the court's order on remand to reopen the record all that point. Moreover, petitioners did not demonstrate that the most compelling new evidence, the high cost of new air pollution control requirements, would have affected the decision, because they did not address the fact that the air pollution rules provided for relaxation to avoid excessive economic burdens on individual smelters.

[This decision is an amended version of one originally issued on Sept. 13, 1984.]

Counsel for Petitioners
Edward G. Chandler
Athearn, Chandler & Hoffman
111 Sutter St., 19th Floor, San Francisco CA 94104
(415) 421-5484

Ralph J. Moore
Shea & Gardner
1800 Massachusetts Ave. NW, Washington DC 20036
(202) 828-2000

Counsel for Respondent
William J. Kelbert
Office of the Solicitor
Department of Labor, Washington DC 20210
(202) 523-7723

Before BROWNING, Chief Judge, and HUG and PREGERSON, Circuit Judges.