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American Iron & Steel Inst. v. Occupational Safety & Health Admin.

Citation: 29 ELR 21455
No. No. 98-6146, -6344, 182 F.3d 1261/(11th Cir., 08/03/1999)

The court upholds the Occupational Safety and Health Administration's (OSHA's) revised standard for the manner and conditions of use for respiratory protection in the workplace. A group representing the iron and steel industry and a group representing doctors separately challenged the revised standard. The court first holds that OSHA reasonably excluded the Hierarchy-of-Control Policy, which is an OSHA preference for engineering controls over respirator use, from the rulemaking proceedings for the revised standard. The standard deals with the appropriate measures for employers to take with respect to respirator use, but these matters are not necessarily factually intertwined with the propriety of implementing engineering controls rather than resorting to respirator use. Under the circumstances, it was not unreasonable for OSHA to determine that allowing the submission of evidence about the relative merits of engineering controls and respirators would have distracted attention from the issues before it, namely, how respirators should be used if they are used. The court further holds that the promulgation of the Hierarchy-of-Control Policy pursuant to Occupational Safety and Health Act (OSH Act) §6(a)'s abbreviated procedures, rather than the usual notice and comment under OSH Act §6(b) bears no significance to the analysis. The court then holds that the standard's requirements for air purifying respirators and for annual fit-test training are consistent with the OSH Act and supported by the substantial evidence.

The court next upholds the standards's nonphysician involvement provision, which allows nonphysician licensed health care professionals to perform required medical examinations. Interested parties were adequately put on notice that the standard might establish an expanded role for nonphysician health care professionals. Further, the standard's definition of "physician or other licensed health care provider" is not void for vagueness. And substantial evidence in the record supported OSHA's decision to allow nonphysician licensed health care professionals to provide medical evaluation services.

Counsel for Petitioners
Angus Macbeth
Sidley & Austin
1722 I St. NW, Washington DC 20006
(202) 736-8271

Counsel for Respondents
Mary F. Edgar
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Black and Forrester, JJ.