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National Cottonseed Prods. Ass'n v. Brock

ELR Citation: 17 ELR 21223
Nos. Nos. 78-2014 et al., 825 F.2d 482/(D.C. Cir., 08/07/1987)

The court upholds the Occupational Safety and Health Administration's (OSHA's) cotton dust regulations requiring medical surveillance of workers and establishing an effectiveness rating for disposable respirators. The court first rules that under Industrial Union Department, AFL-CIO v. American Petroleum Institute [Benzene], 10 ELR 20489, medical monitoring rules call for a less stringent significant risk analysis than do other workplace standards. Dictum in Benzene suggests that where OSHA promulgates standards but remains unsure about whether the residual risk is significant, OSHA can impose monitoring requirements as a "backstop" to check the validity of its assumptions in imposing the workplace standard, to develop a factual basis for reducing the standard's exposure limit if necessary, and to ensure the health of unusually susceptible workers. The court holds that the cotton dust regulations' medical monitoring requirement is therefore valid, even though OSHA had found that abandoning the preexisting permissible exposure limit would not leave workers exposed to a significant risk. The application of the Benzene court's dictum to this case is justified because there is sufficient evidence that cotton dust at some "reasonably attainable level" could cause harm, and there appears to be a dose-response relationship between exposure to cotton dust and health effects in workers. The court also holds that the medical monitoring requirement is technologically feasible. Although the necessary medical resources are not currently in place, there is no reason to expect that they will not be available when the standard is implemented. Moreover, the requirement is economically feasible. OSHA's failure to calculate the cost of follow-up examinations for workers who manifest symptoms of respiratory problems was harmless error.

The court next turns to the challenge to OSHA's effectiveness rating for disposable respirators. The court holds that plaintiff manufacturer has jus tertii standing to bring the action because of its relationship as vendor to OSHA's regulatees, the employers who are required to furnish respirators to their workers. The court holds that OSHA's effectiveness rating for the respirator was not arbitrary. OSHA's decision that there exists no adequate test to assure the proper fit of the respirator was not irrational. Although both the National Institute for Occupational Safety and Health and the Committee on Safety Standards for Respiratory Protection of the American National Standards Institute gave the respirator a higher rating, their calculations did not take into account possible problems with the fit of the respirator. And while the same respirator has a higher effectiveness rating when used in the lead industry, the ability of medical surveillance to detect immediately the presence of lead in the blood compensates for any defects in the fit of the respirator.

Counsel for Petitioner
Carl W. Vogt
Fulbright & Jaworski
1150 Connecticut Ave. NW, Washington DC 20036
(202) 452-6800

Counsel for Respondents
Andrea C. Casson, Ass't Counsel for Appellate Litigation
Department of Labor
200 Constitution Ave. NW, Washington DC 20001
(202) 523-6666

Before: ROBINSON, RUTH B. GINSBURG, and WILLIAMS, Circuit Judges.