Supreme Court Upholds OSHA's Cotton Dust Standard, Deals Setback to Cost-Benefit Analysis

The application of cost-benefit analysis to environmental health and safety regulation, although criticized for obstructing the achievement of legislated health and environmental goals,¹ has been hailed as the cure for the adverse economic impacts resulting from such regulation. Industry complaints that environmental regulation costs too much has led to congressional and administrative efforts to make regulations more "efficient" by requiring costs of controls to be justified by greater benefits. The Reagan Administration recently addressed this question by proposing that regulatory agencies such as the Occupational Safety and Health Administration (OSHA) rely on cost-benefit analysis in establishing environmental, health, and safety regulations.² However, a recent Supreme Court decision, American Textile Manufacturers Institute, Inc. v. Donovan,³ which upheld OSHA's standard regulating cotton dust in the workplace, raises serious doubts about the use of cost-benefit analysis as a basis for establishing not merely OSHA standards, but those promulgated under other environmental statutes as well.

The Cotton Dust decision answered the question left so glaringly open in the Supreme Court's Benzene decision, Industrial Union Department, AFL-CIO v. Marshall.⁴ In Benzene, the Court found that OSHA had failed to make the requisite threshold finding, supported by substantial evidence, that the regulated substance posed a significant risk to worker health. The Court, in invalidating the standard, found it unnecessary to determine whether OSHA must balance costs and benefits in setting a standard regulating occupational exposure to hazardous substances.In Cotton Dust, the Court concluded that the Occupational Safety and Health Act (OSH Act)⁵ does not require OSHA to conduct a cost-benefit analysis when setting health standards to protect workers from toxic substances and harmful physical agents. Indeed, the opinion suggests that cost-benefit analysis may be precluded.

Background

The stated goal of the OSH Act is to "assure so far as possible every working man and woman in the Nation safe and healthful working conditions."⁶ To implement this primary purpose, OSHA is authorized to establish health and safety standards, defined in § 3(8) of the Act as standards which are "reasonably necessary or appropriate to provide safe or healthful employment and places of employment."⁷ When mandating the development of industrial safety standards, Congress also recognized the need to address the uniquely pernicious problem of worker exposure to "toxic materials" and "harmful physical agents." It thus enacted a special provision designed to deal with these special risks. Under § 6(b)(5) of the Act, such standards must assure

to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard … for the period of his working life …. In addition to the attainment of the highest degree of health and safety protection for the employee, other considerations shall be the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws.⁸

OSHA has traditionally given § 3(8) little substantive import, but it has interpreted § 6(b)(5) to require standards to be set at the lowest technologically and economically feasible⁹ level without relying on an analysis of costs and benefits.This interpretation has prompted industry challenges to several of OSHA's workplace standards. Industry's position is that OSHA must set a standard which provides a balance between costs and benefits. In Benzene, the first of these challenges to reach the Supreme Court, the Fifth Circuit's¹⁰ invalidation of OSHA's benzene standard was upheld, but not on the cost-benefit issue. Instead, the Court concluded that § 3(8) requires OSHA to make a finding that existing health risks in the workplace are significant. Lacking empirical data on the significance of the risk of exposure to the carcinogen benzene, OSHA had set the standard at the lowest feasible level based on an assumption that no safe exposure level existed for carcinogenic substances.¹¹ The Court rejected [11 ELR 10164] OSHA's benzene standard, selected on the basis of this "cancer policy," because the existence of a significant risk had not been supported by substantial evidence.¹²

In distinct contrast, the cotton dust standard was not set on the basis of OSHA's cancer policy, but on well-documented evidence of a significant health hazard posed by inhalation of cotton dust, which is not a carcinogen. Thus, the crux of the controversy in Cotton Dust involved the degree to which, under § 6(b)(5), the complete protection of safety and health should be compromised by the technological difficulty and economic cost of achieving that protection.

The Cotton Dust Standard

In the cotton industry some 126,000 to 200,000 workers are exposed daily to cotton dust.¹³ Inhalation of cotton dust induces byssinosis, a progressive respiratory disease that has been categorized into four grades. The disease ranges from Grade 1/2, a possibly reversible form characterized by chest-tightness, shortness of breath, and cough, to the most serious Grade 3, known as "brown lung" disease, which is irreversible, often severely disabling, and may lead to death from heart failure. Studies indicate that at least 35,000 (one in 12) employed and retired cotton mill workers suffer from brown lung disease,¹⁴ while 100,000 active and retired workers suffer from some grade of the disease.¹⁵

When byssinosis was formally recognized in the 1960s as an occupational health hazard in the United States, the Secretary of Labor, pursuant to the Walsh-Healey Act,¹⁶ established a 1,000 microgram-per-cubic-meter (ug/m³) limit for daily exposure to total cotton dust. Based on a new measurement unit of respirable rather than total dust, OSHA promulgated a standard which set a separate permissible exposure level (PEL) for each of three segments of the cotton processing industry. Thus, the standard sets a PEL of 200 ug/m³ of lint-free respirable cotton dust over an eight-hour work shift for the yarn manufacturing category, a 750 ug/m³ PEL for "slashing and weaving," and a 500 ug/m³ PEL for all other processes in the industry.¹⁷ Implementation strategies for achieving the cotton dust standard depend primarily on a mix of engineering controls, such as ventilation systems, and work practice controls to be adopted within four years, with respirators and job transfers to be used in the interim. The standard also requires employers to monitor employee exposures, to provide medical surveillance and employee education, and to post warning signs about the health risks associated with cotton dust.

In setting the cotton dust standard, OSHA interpreted the Act to require adoption of the most stringent standard to protect against material health impairment, bounded only by considerations of feasibility. OSHA relied on data showing a strong linear relationship between the prevalence of byssinosis and the concentration of lint-free respirable cotton dust. OSHA found that even at 200 ug/m³ PEL, 13 percent of all employees in yarn manufacturing would suffer Grade 1/2 byssinosis. It rejected the 500 ug/m³ PEL recommended by industry because it would induce Grade 1/2 byssinosis in 25 percent of yearn manufacturing workers. OSHA also rejected the union's suggested 100 ug/m³ PEL. Although such a lower exposure level would reduce the prevalence of Grade 1/2 byssinosis to seven percent, OSHA found that the 100 ug/m³ level was not within the "technological capabilities of the industry." OSHA also set higher levels for certain segments of the cotton industry because of limitations of technological feasibility. OSHA adopted a standard that would limit worker exposure to the lowest feasible cotton dust levels within four years.

D.C. Circuit Upholds the Standard

OSHA issued its final cotton dust standard on June 23, 1978. Representatives of the cotton industries¹⁸ promptly challenged the standard in the District of Columbia Circuit Court of Appeals, arguing in essence that OSHA's standard was not "reasonably necessary or appropriate" under § 3(8) to protect textile workers from the dangers of cotton dust. They contended that the agency need not protect workers from the less serious, reversible early stages of byssinosis because they do not constitute "material impairment of health." A 500 ug/m³ PEL for most manufacturing operations and a 1,000 ug/m³ level for weaving operations combined with the use of respirators and work transfers would, they insisted, meet § 6(b)(5)'s "material impairment" requirement. In a separate vein, they argued that OSHA lacked substantial evidence that the standard was technologically and economically feasible, and that under § 6(b)(5) OSHA must demonstrate that the benefits are reasonably related to the costs. The Secretary of Labor, supported by two labor organizations, on the other hand, interpreted the Act as mandating that OSHA enact the most protective standard possible to eliminate a significant risk of material health impairment, subject only to the constraints of economic and technological feasibility.

The D.C. Circuit, in AFL-CIO v. Marshall,¹⁹ upheld the standard and OSHA's regulatory approach in all major respects. OSHA's special mandate "to assure so far as possible every working man and woman … safe and healthful working conditions," and to set permanent standards for occupational exposure to "toxic materials" and "harmful physical agents," allows the agency to reduce the risk of irreversible damage. Thus, OSHA properly decided to reduce the prevalence of chronic, irreversible forms of byssinosis by setting stringent standards that reduce the prevalence of even the reversible Grade 1/2 byssinosis.

In addition, the court concluded that OSHA had supported its feasibility determination with substantial evidence. Following the interpretation of § 6(b)(5)'s feasibility requirement as applied to OSHA's asbestos dust standard in Industrial Union Department, AFL-CIO [11 ELR 10165] v. Hodgson,²⁰ the court noted that "standards do not become infeasible simply because the impose substantial costs on an industry, force the development of new technology, or even force some employers out of business."²¹ The D.C. Circuit agreed with OSHA that no cost-benefit analysis is required by the Act.The Act's definition of a health and safety standard as "reasonably necessary or appropriate" imposes no additional requirement beyond the finding of feasibility mandated by § 6(b)(5). In contrast to other statutes which explicitly require a cost-benefit analysis, the OSH Act requires that any significant health risk must be reduced to the extent feasible. The court found that the OSH Act placed worker health above other considerations.²²

The Supreme Court Affirms

The challenge to the cotton dust standard was the second request to the Supreme Court to rule on OSHA's mandate under § 6(b)(5) of the OSH Act to protect workers from exposure to toxic materials and harmful physical agents.In Industrial Union Department, AFL-CIO v. Marshall,²³ the Benzene decision, a greatly divided Court had invalidated OSHA's benzene standard. In the plurality opinion, Justice Stevens determined that under § 3(8) OSHA must make a finding, based on substantial evidence in the record, that occupational exposure to the regulated substance presents a "significant" health risk. However, in American Textile Manufacturers Institute, Inc v. Donovan,²⁴ the validity of OSHA's determination of significant risk from the occupational exposure to cotton dust was not questioned. Industry petitioners acknowledged that workers exposed to cotton dust risk contracting byssinosis, but they argued that a less stringent standard would adequately protect workers and would be economically feasible. Justice Brennan, writing the opinion for a five-person majority made up of the four dissenters in Benzene joined by Justice Stevens,²⁵ upheld the cotton dust standard.

The principal question presented to the Court in Cotton Dust was whether the OSH Act requires the Secretary of Labor, in promulgating a § 6(b)(5) standard, to determine that the costs of the standard bear a reasonable relationship to its benefits. The same issue had been evaded by the Court in Benzene, aside from Justice Powell's lone concurrence.²⁶ In rejecting the argument that such a cost-benefit analysis is required, Justice Brennan focused on the § 6(b)(5) phrase "to the extent feasible." He found that since feasible means "capable of being done," OSHA is required to enact a standard that protects worker health to the maximum unless it is not "capable of being done." He agreed with the D.C. Circuit Court of Appeals that Congress had "itself defined the basic relationship between costs and benefits, by placing the 'benefit' of worker health above all other considerations save those making attainment of this 'benefit' unachievable."²⁷ Thus, he concluded, "cost-benefit analysis by OSHA is not required by the statute because feasibility analysis is."²⁸ In fact, any standard based on a cost-benefit analysis "that strikes a different balance than that struck by Congress would be inconsistent with" § 6(b)(5).²⁹

The Court next looked at the "reasonably necessary or appropriate" clause in § 3(8). Taken alone, § 3(8) may imply the need for a balancing of costs and benefits, but it does not impose such a requirement upon standards dealing with toxic materials or harmful physical agents under § 6(b)(5), for which Congress specifically created the feasibility requirement. Justice Brennan emphasized that the adoption of petitioners' interpretation of § 3(8) would "eviscerate" the feasibility requirement of § 6(b)(5).

The Court also read the Act's legislative history to support OSHA's interpretation of the feasibility requirement. A concern which had arisen prior to enactment of § 6(b)(5) was that a standard might require "absolute health and safety." As a result, the provision was amended to incorporate the feasibility requirement. The feasibility limitation, however, was designed not to ensure cost-justified and equitable standards but to prevent widespread economic hardship across an entire industry. The committee reports indicated a congressional awareness that employers would incur substantial costs to meet such standards and that some would inevitably be forced out of business. Justice Brennan found that Congress clearly considered the costs of protecting worker health to be a necessary part of the cost of doing business, even if it meant that marginal operations would not survive.

The Court rejected petitioner's argument that OSHA had not supported its determination that the cotton dust standard was economically feasible by substantial evidence. Justice Brennan noted that OSHA was unable to obtain from industry the detailed data necessary for a precise estimate of the costs of the proposed standard. Such defects in the record, however, do not negate a finding that the estimated cost of compliance was supported by substantial evidence since § 6(b)(5) requires only that the Secretary promulgate standards based on the "best available evidence." After a close review of the studies that OSHA had commissioned to ascertain the cost and [11 ELR 10166] affordability of the standard, the Court found that the court of appeals had not "misapprehended or grossly misapplied" the substantial evidence test in upholding OSHA's finding that the standard was economically feasible. Although OSHA found that some marginal employers might shut down rather than comply, it concluded that the entire industry was not threatened. Based on reasonable estimates that the cotton industry could absorb a $2.7 billion compliance cost, OSHA reasonably determined that its more modest estimated compliance cost of $656.6 million was "economically feasible."

Finally, the Court rejected a portion of the cotton dust standard which requires employers to guarantee employees wage and employment benefits following a transfer to a new position when the employee is unable to wear a respirator.³⁰ OSHA had failed to show that the wage guarantee was related to the achievement of a safe and healthful work environment rather than notions of fairness. Though the record contained suggestions that the wage guarantee could be supported on this ground without a formal statement of reasons justifying the provisions, the Court was unwilling to fabricate a justification of its own.³¹

Dissents

Without reaching the cost-benefit question, Justice Stewart would have invalidated the cotton dust standard because of OSHA's failure to justify its estimate of the cost of meeting the standard. OSHA's reliance on an overestimate of the cost of a less stringent standard to support the more costly standard finally adopted was, in his view, "unsupported speculation."³² He argued that since OSHA had assembled only a range of cost data and never obtained an estimate of the cost of the standard actually adopted, the standard lacked a basis in substantial evidence.

Justice Rehnquist's dissent, in which Chief Justice Burger joined, went to a more fundamental issue. He concluded, as he had in his concurrence in Benzene,³³ that the insertion of the words "to the extent feasible" in § 6(b)(5) rendered the statute "so vague and precatory" as to be an unconstitutional delegation of regulatory power to administrative agencies. In his view, the words are merely a "legislative mirage" which provide no meaningful guidance to OSHA in administering the law, as evidenced by the diverse interpretations given § 6(b)(5) by the parties to the case. He also read the majority opinion to suggest that a cost-benefit analysis is permitted even if not required.³⁴

Discussion

The Supreme Court's decisions in Benzene and Cotton Dust have established reasonably clear guidelines for OSHA in setting standards limiting occupational exposure to toxic materials and harmful physical agents under § 6(b)(5). Under Benzene, the agency must establish by substantial evidence that the standard is addressed to a significant risk. Under Cotton Dust, it need not subject the standard to cost-benefit review, though a showing that it is "feasible" is necessary. In both decisions the Court suggested that under § 3(8) standard setting involves a two-step process: the agency must demonstrate not only the existence of a significant risk but that the new standard significantly reduces that risk. While in Benzene OSHA failed to meet even the first part of this test, OSHA clearly met this burden in setting the cotton dust standard.

It appears, therefore, that the difficulty in proving a significant risk may depend on the nature of the substance to be regulated. For example, OSHA's reliance on its cancer policy rather than empirical evidence in setting the benzene standard, though unsatisfactory to the Court, nevertheless was initially all that could have been expected from the agency given the paucity of data on carcinogens. Butin the case of non-carcinogens such as cotton dust, where data are easier to obtain, the "significant risk" showing appears much easier to make.

In terms of the feasibility and economic issues, Cotton Dust continues where Benzene left off. Justice Powell, the only member of the Benzene court to address the cost-benefit issue directly, is of the view that OSHA standards must be shown to bear a reasonable relationship to their costs. He appears to base this interpretation not on the § 6(b)(5) feasibility limitation but on his view that it was "unreasonable" for Congress to intend otherwise.³⁵ The strength of the four-person dissent in Benzene hinted that Justice Powell's position was not shared by a majority of the Court, and Cotton Dust affirmed that suggestion. There is no longer any argument that cost-benefit techniques must be employed in the setting of § 6(b)(5) standards. Because Congress had already placed the "benefit" of worker health above all other considerations, the use of cost-benefit analysis would be contrary to Congress' intent.

Justice Rehnquist's dissent suggests that cost-benefit analysis is not precluded by § 6(b)(5) even though it is not required. However, dicta by Justice Brennan suggest that it would be legally risky to rely on this interpretation of the majority opinion. In the words of the majority, a cost-benefit analysis is "inconsistent" with the feasibility requirement. Considering the high legislative priority given worker health, a cost-benefit analysis could hardly justify failure to take all affordable measures to reduce a significant risk. It bears repeating, however, that the decision is limited to § 6(b)(5) standards involving toxic materials or harmful physical agents. It still permits cost-benefit analysis for OSHA's safety regulations.

It is interesting that only Justice Stewart criticized the agency for its loose application of the estimates of the [11 ELR 10167] standard's economic feasibility. In this respect the agency's decisionmaking was certainly questionable, particularly since OSHA's expertise lies in other areas. However, Justice Stewart appears to be asking too much of the agency in demanding in every case a cost estimate of the actual standard which is finally adopted. The nature of the notice and comment process requires that agencies gather data on proposed rules before they are finalized, and demands that there be sufficient flexibility to modify a proposed rule before its adoption, as was done in the case of the cotton dust standard.³⁶ Justice Stewart's approach would deprive agencies of this flexibility and transform cost estimates into post hoc justification. And in the OSHA context it might put the cart before the horse by requiring standards to be set before feasibility can be judged. The majority, noting § 6(b)(5)'s statement that standards need only be based on the "best available evidence," may also have sensed the fact that even the best estimates of the cost of OSHA standards are likely to be grossly inaccurate,³⁷ and reasonably deferred to the agency's rough judgments.³⁸

Conclusion

As had been expected, the Cotton Dust decision sent reverberations throughout the regulatory agencies. Within OSHA, its effect was as significant as, if somewhat in opposition to, the effect of the Benzene decision. Whereas Benzene prompted a full repudiation of the cancer policy³⁹ and left Carter Administration regulators wondering whether the regulation of workplace carcinogens had been rendered a futile exercise, Cotton Dust, in combination with the Supreme Court's denial of certiorari in the OSHA lead standard case,⁴⁰ elicited from the Solicitor of Labor a memorandum⁴¹ explaining that the use of cost-benefit analysis was illegal under § 6(b)(5), and left Reagan Administration regulatory reformers wondering whether their objective of taming OSHA standards had been nipped in the bud. At other agencies the impact of the decision has not been as great since the ruling was a narrow interpretation of the OSH Act rather than a general statement of administrative law. Nonetheless, Cotton Dust stands for the important and broadly applicable principle that when a regulatory statute articulates a specific means for limiting a rule's economic cost, an agency is not free to follow a less costly (or, presumably, a more costly) approach. Though such a ruling may seem self-evident, it may also prove to be a serious legal impediment to the implementation of President Reagan's executive order calling for government-wide use of cost-benefit methods.⁴² Similarly, it may be viewed by agency staffs implementing other regulatory laws as a sign that if environmental standards are to be weakened, it can be done only by legislative changes rather than regulatory grace.

1. See generally, Rodgers, Benefits, Costs, and Risks: Oversight of Health and Environmental Decisionmaking, 4 HARV. ENVT'L L. REV. 191 (1980); Baram, Cost-Benefit Analysis: An Inadequate Basis for Health, Safety, and Environmental Regulatory Decisionmaking, 8 ECOLOGY L.Q. 473 (1980).

2. Exec. Order No. 12291, 42 Fed. Reg. 1319 (Feb. 9, 1981), ELR STAT. & REG. 45035. See generally, Comment, Reagan Orders Cost-Benefit Analysis of Regulations, Confers Broad Power on OMB and Regulatory Task Force, 11 ELR 10044 (Feb. 1981).

3. 49 U.S.L.W. 4720, 11 ELR 20736 (June 17, 1981), aff'g sub nom. AFL-CIO v. Marshall, 617 F.2d 636 (D.C. Cir. 1979).

4. 448 U.S. 607, 10 ELR 20489 (1980), aff'g sub nom. American Petroleum Institute v. OSHA, 581 F.2d 493, 8 ELR 20790 (5th Cir. 1978). See Comment, supreme Court's Divided Benzene Decision Preserves Uncertainty Over Regulation of Environmental Carcinogens, 10 ELR 10192 (1980).

5. 29 U.S.C. §§ 651-678.

6. OSH Act § 2(b), 29 U.S.C. § 651(b).

7. OSH Act § 3(8), 29 U.S.C. § 652(8).

8. OSH Act § 6(b)(5), 29 U.S.C. § 655(b)(5).

9. The term "feasible," though well defined in neither the statute nor the legislative history, has been construed by OSHA, with judicial support, to refer to technological and economic feasibility. Oversimplified, a standard is technologically infeasible if no means of addressing the hazard exist or are likely to be developed, whereas a standard is economically infeasible if the monetary costs of compliance would be so great that more than a small number of firms in an industry would be bankrupted if forced to comply. See generally, Berger & Riskin, Economic and Technological Feasibility in Regulating Toxic Substances Under the Occupational Safety and Health Act, 7 ECOLOGY L.Q. 285 (1978).

10. American Petroleum Institute v. OSHA, 581 F.2d 493, 8 ELR 20790 (5th Cir. 1978). See generally, Comment, Assessing Regulatory Cost and Benefits: Fifth Circuit Vacates OSHA Benzene Standard, 8 ELR 10250 (1978).

11. Under OSHA's carcinogen policy, it is presumed that once a substance has been determined to be a human carcinogen at any level of exposure, there is no threshold level at which the substance does not present a cancer risk. Thus, in keeping with § 6(b)(5)'s feasibility requirement, standards for carcinogens were set at zero level of exposure or the lowest level with which industry can afford to comply. 43 Fed. Reg. 5925 (1978).

12. 448 U.S. 607, 10 ELR 20489 (1980).

13. See 43 Fed. Reg. at 27379 (June 23, 1978).

14. See 43 Fed. Reg. at 27353 (June 23, 1978).

15. S. REP. NO. 91-1282, 91st Cong., 2d Sess. 3 (1970).

16. 41 U.S.C. § 35(e).

17. 29 C.F.R. § 1910.1043. See 43 Fed. Reg. 27350-463 (June 23, 1978) for an explanation of the standard.

18. In addition, two labor organizations challenged the standard as too lax.

19. 617 F.2d 636 (D.C. Cir. 1979).

20. 499 F.2d 467, 4 ELR 20415 (D.C. Cir. 1974).

21. 617 F.2d at 655.

22. The non-textile industries covered by the standard also challenged the 500 ug/m³ PEL as being both technologically and economically infeasible. The court concluded that OSHA had fairly found a health risk to workers in non-textile industries and that the standard was technologically feasible. However, the economic feasibility finding for the standard as applied to the cottonseed oil industry was not supported by substantial evidence. The court also upheld the four-year implementation program and the medical transfer and wage guarantee provisions of the standard. 617 F.2d at 666-77.

23. 448 U.S. 607, 10 ELR 20489 (1980).

24. 49 U.S.L.W. 4720, 11 ELR 20736 (June 17, 1981).

25. The four dissenters were Justices Marshall, Brennan, White, and Blackmun. Justice Stevens wrote the plurality opinion in Benzene, joined by Justice Stewart, and Justices Powell and Rehnquist and Chief Justice Burger wrote separate concurring opinions.

26. See text accompanying note 35, infra.

27. 49 U.S.L.W. at 4725, 11 ELR at 20740-41.

28. Id.

29. Id. Justice Brennan further noted that Congress has used specific language when requiring a cost-benefit analysis in other statutes, but had not done so in § 6(b)(5) of the OSH Act. 49 U.S.L.W. at 4725-26, 11 ELR at 20741-42.

30. 29 C.F.R. § 1019.1043(f)(2)(v).

31. The Court found that OSHA's failure to explain the wage guarantee provision violated § 6(f), 29 U.S.C. § 655(f), requiring that determinations of the Secretary be supported by substantial evidence, and § 6(e), 29 U.S.C. § 655(e), requiring a statement of reasons for such action.

32. Justice Stewart noted that OSHA had flatly rejected an estimate of the cost of the final standard as a gross overestimate and another estimate of a less stringent standard as an overestimate. It then relied on this second estimate to support the more costly and more stringent final standard. See 49 U.S.L.W. at 4734, 11 ELR at 20749-50.

33. 448 U.S. at 671, 10 ELR at 20505.

34. 49 U.S.L.W. at 4734-35, 11 ELR at 20749-50. Justice Rehnquist also found no reason to limit the feasibility requirement to technological and economic feasibility. It could just as well include considerations of administrative and political feasibility. Id.

35. 448 U.S. at 664, 10 ELR at 20503.

36. United Steelworkers of America, AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 10 ELR 20784 (D.C. Cir. 1980), cert. denied, 49 U.S.L.W. 3969 (June 29, 1981).

37. See generally, Doniger, Federal Regulation of Vinyl Chloride: A Short Course in the Law and Policy of Toxic Substances Control, 7 ECOLOGY L.Q. 497, 551-62 (1978); Comment, Assessing Regulatory Costs and Benefits: Fifth Circuit Vacates OSHA Bezene Standard, 8 ELR 10250, 10251 (1978).

38. The Supreme Court limited its review to whether the court of appeals had "misapprehended or grossly misapplied" the substantial evidence test in determining that OSHA had properly estimated the cost of compliance. This deference to the court of appeals may present a significant obstacle for future challengers in similar cases. This, in turn, may enhance the importance of the "race to the courthouse" in order to obtain a ruling from a more sympathetic court of appeals.

39. In light of Benzene, OSHA amended its cancer policy to require consideration of the significance of the risk and deleted those provisions requiring automatic setting to the lowest feasible level. 46 Fed. Reg. 4889 (Jan. 19, 1981). See also American Textile Manufacturers Institute, Inc. v. Donovan, 49 U.S.L.W. at 4724 n.25, 11 ELR at 20740 n.25, where the Court rejects the Secretary of Labor's request, based on its amendment of the cancer policy, that the Court refrain from hearing the Cotton Dust case.

40. United Steelworkers of America, AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 10 ELR 20784 (D.C. Cir. 1980), cert. denied, 49 U.S.L.W. 3969 (June 29, 1981).

41. Internal memorandum from the Solicitor of Labor (July 27, 1981), reprinted in Legal Times of Washington 18 (Aug. 3, 1981).

42. See Comment, Reagan Orders Cost-Benefit Analysis of Regulations, Confers Broad Powers on OMB and Regulatory Task Force, 11 ELR 10044 (Feb. 1981).