Abstract
The explosive growth of federal responsibility for risk management in health and safety areas is generally well known. Table 1 illustrates the broad statutory responsibilities of three major federal agencies,1 the Occupational Safety and Health Administration (OSHA), the Consumer Product Safety Commission (CPSC), and the Environment Protection Agency (EPA), none of which existed before 1970. An estimate2 of the work load imposed by OSHA, CPSC, and EPA on the federal appellate judiciary3 is given in Table 2. In the case of the Courts of Appeal, no less than 1.3% of all cases with a published opinion involved OSHA, CPSC, or EPA. In view of the enormous controversy surrounding the passage of the laws administered by these agencies, it is perhaps not surprising that these three agencies would account for such a comparatively large share of the appellate work load so soon after their creation. Moreover, the percentages by themselves underestimate the amount of work involved because, at least in the cases involving challenges to standards, the courts have had to review massive4 records containing highly technical information from the fields of medicine, toxicology, engineering, and economics. Quite clearly, risk management problems have had a major impact on both the executive and judicial branches.
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References
The list of federal health and safety risk management agencies is illustrative, not exhaustive, and represents the current focus of the principal author (A.O.) at the School of Public Health.
An effort has been made to identify the extent of under- and overestimation in the table. Underestimation of agency cases due to a failure to identify the agency in the case name is probably rare (25 consecutive Court of Appeals cases from the Occupational Safety and Health Case series in Volume 6 of the Bureau of National Affairs contained the agency name or an equivalent that would have been identified by the LEXIS search). Overestimation of agency or total Circuit cases due to inclusion of “Not for Publication” opinions in the F.2d series is minimal (4/71 cases with an F.2d cite in the same BNA volume were “Not for Publication”).
In general, the Courts of Appeal are designated to hear challenges to standards from the three agencies noted in the table.
The following appellate docket sizes are illustrative.
Under the Occupational Safety and Health Act, which is the focus of the present report, the agency has rulemaking authority regarding health and safety risks under the following sections: The Secretary may by rule promulgate, modify, or revoke any occupational safety or health standard in the following manner. U.S.C. Sect. 655(b) (1982).
Though the decision-making process regarding the initial, or continued, registration of a pesticide under the Federal Insecticide, Fungicide and Rodentcide Act (FIFRA) involves a formal hearing on the record (7 U.S.C. Sect. 136d(d)), the decision clearly represents a risk management decision analogous to those made by OSHA or CPSC.
The question is not whether the law is systematic (it is) but whether the product of the legal system in the form of opinions is also systematic from a scientific perspective, ie, whether opinions from different courts impose consistent requirements on science policy makers.
Schotland, Scope of Review of Administrative Action, 34 Fed. BJ 54 (1975). The category of legal policy has been added by the present investigators.
See, eg, United Steelworkers’ of America, 647 F.2d 1189, 1240 (D.C. Cir., 1980) (whether OSHA’s proposed access to employee medical records violates right of privacy).
See, eg, Auchter v. Public Citizen Health Research Group, 702 F.2d 1150, 1157 (D.C. Cir., 1983) (court ordered expedited preparation of permanent standard).
See, eg, Industrial Union Dep’t. v. American Petroleum Inst., 448 U.S. 607, 639 (1980) (interpreting term reasonably necessary)
See, eg, Id. at 655 n.62 (determination of whether a risk is significant enough to warrant regulation is a policy question).
Procedural questions were not considered further by the project since they do not deal directly with risk management.
K. Llewellyn, The Common Law Traditions, 56 Little, Brown and Company (1960).
Stare decisis et non quieta movere (to stand by decisions and not to disturb what is settled).
D. Sands, Statutes and Statutory Construction (4th ed. 1972).
General definition for the judicial standard of review of agency standard setting authority, The reviewing court shall… (2) hold unlawful and set aside agency action, findings, and conclusions found to be… (A) arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law,… (E) unsupported by substantial evidence. APA, 5 U.S.C. Sect. 706 (1982). The specific provision governing OSHA, which is the focus of the present report, states that “the determinations of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole.” 29 U.S.C. Sect. 655(f) (1982).
For example, this has been true in the Office of the Associate Solicitor of Occupational Safety and Health until recently, and may still be the case. A surprisingly high number of lawyers in that office had served almost from the inception of the agency.
White E, From Sociological Jurisprudence to Realism: Jurisprudence and Social Change in Early Twentieth- Centruy America, 58 Virginia Law Review 999 (1972)
White E, The Evolution of Reasoned Elaboration: Jurisprudential Criticism and Social Change, 59 Virginia Law Review 279 (1973).
Haar, Sawyer, and Cummings, Computer Power and Legal Reasoning: A Case Study of Judicial Decision Prediction in Zoning Amendment Cases, 1977 Am. B. Foundation Res. J. 651, 655 (1977).
Though, as indicated in the following text, the standard of review for agency science-based findings has occasioned substantial discussion by judges in opinions and articles, there is no indication that the courts perceive the statutory interpretation problems posed by such risk management statutes as the Occupational Safety and Health Act (OSHA), 29 U.S.C. 651 (1982), as unique and requiring a special approach.
Industrial Union Dep’t., AFL-CIO v. Hodgson, 499 F.2d 467, 474 (D.C. Cir., 1974).
McGarity, Substantive and Procedural Discretion in Administrative Resolution of Science Policy Questions: Regulating Carcinogens in EPA and OSHA, 67 Georgetown LJ 729, 733–47 (1979).
Society of Plastics Indus., Inc. v. OSHA, 509 F.2d 1301, 1308 (2nd Cir., 1975) (Clark, Justice, sitting by designation).
Id.; American Federation of Labor v. Marshall, 617 F.2d 636, 651 (D.C. Cir., 1979).
I.U.D., 449 F.2d 467, 474 (D.C. Cir., 1974); United Steelworkers of America v. Marshall, 647 F.2d 1189, 1206 (D.C. Cir., 1980).
Associated Industries of N.Y.S. v. United States Dep’t of Labor, 487 F.2d 342, 347–50 (2nd Cir., 1973).
A.F.L., 617 F.2d 636, 650 (D.C. Cir., 1979); U.S.W.A., 647 F.2d 1189, 1206 (D.C. Cir., 1980); I.U.D., 499 F.2d 467, 473 (D.C. Cir., 1974); Assoc’d Indus., 487 F.2d 342, 347–50 (2nd Cir., 1973); S.O.P., 509 F.2d 1301, 1304 (2nd Cir., 1975); Texas Independent Ginners Ass’n. v. Marshall, 630 F.2d 398, 404 (5th Cir., 1980).
P.C.H.R.G., 702 F.2d 1150 (D.C. Cir., 1983).
Assoc’d Indus., 487 F.2d 342, 354 (2nd Cir., 1973); A.F.L., 617 F.2d 636, 649 n.49 (D.C. Cir., 1979).
A.P.I., 448 U.S. 607, 705 (1980) (Marshall, J., dissenting).
Universal Camera Corp. v. N.L.R.B., 340 U.S. 474 (1951).
Id. at 488.
Id. at 490.
Id. at 488.
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971).
Id. at 415.
Id. at 416.
Bowman Transportation, Inc. v. Arkansas-Best Freight System, 419 U.S. 281, 290 (1974) (rational basis exists where Commission refused to infer performance of an applicant carrier in a market to which it sought admission from its performance in other markets where precisely similar conditions had not been demonstrated).
See, eg, Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87(1983) (O’Connor, J.) (in a case subject to arbitrary/capricious review, cited I.U.D. v. A.P.I., 448 U.S. 607 (1980) (plurality opinion) a case governed by substantial evidence review, for the principle that a reviewing court must be deferential in reviewing science-based determinations); I.U.D. v. A.P.I., 448 U.S. 607, 705 (1980) (Marshall, J., dissenting) (substantial evidence review requires “more careful performance of (the searching inquiry into the facts)…” mandated by the “arbitrary/capricious” standard); Ethyl Corp. v. Environmental Protection Agency, 541 F.2d 1, 36 n.75 (D.C. Cir., 1976) (notes three Clean Air Act cases, governed by arbitrary/capricious review standard, which adapted scope of reviewing court’s inquiry into evidence from substantial evidence case); Texas Independent Ginners v. Marshall, 630 F.2d 398, 405 (5th Cir., 1980) (indicating that the reasonableness requirement under substantial evidence stems from the arbitrary/capricious requirement).
I.U.D., 499 F.2d 467, 475–76 (D.C. Cir., 1974). Accord, Synthetic Organic Chemical Mfrs. Ass’n. v. Brennan, 503 F.2d 1155, 1157 (3rd Cir., 1974); Assoc’d Indus., 487 F.2d 342,354 (2nd Cir., 1973);Ginners, 630 F.2d 398, 405 n.26 (5th Cir., 1980).
U.S.W.A., 647 F.2d 1189, 1207 (D.C. Cir., 1980).
Bazelon, Coping with Technology Through the Legal Process, 18 Jurimetrics J 241, 246 n.19 (1978). Bazelon, The Judiciary: What Role in Health Improvement? 211 Science 792 (1981).
In enforcing these requirements [of fully articulating the basis for agency decision], the court does not reach out to resolve controversies over technical data… it seeks to assure public accountability… opening the process to public scrutiny and criticism. A.F.L.-C.I.O. v. Marshall, 617 F.2d 636, 651 (D.C. Cir., 1979), affdsub nom A.T.M.I. v. Marshall, 452 U.S. 490 (1981). [W]here administrative decisions on scientific issues are concerned, it makes no sense to rely upon the courts to evaluate the agency’s scientific and technological determinations. Coping with Technology through the Legal Process, 62 Cornell LR 817, 822 (1977). I cannot believe that Congress intended this court to delve into the substance of the mechanical, statistical, and technological disputes in this case. Int’l Harvester Co. v. Ruckelshaus, 478 F.2d 615, 651 (D.C. Cir., 1973) (Judge Bazelon would remand the standard because of a failure to provide cross-examination, the process defect which he identified In Vermont Yankee, 435 U.S. 519 (1978), the Supreme Court unanimously rejected the court imposition of procedural requirements beyond those imposed by the agencies’ statutes). See also., Science and Uncertainty: A Jurist’s View, 5 Harv. Envtl. LR 209 (1981).
Ethyl, 541 F.2d 1, 68 (D.C. Cir., 1976) (Leventhal, J., concurring). We have identified a number of matters that require consideration and clarification on remand. While we remain diffident in approaching problems of this technical complexity, the necessity to review agency decisions, if it is to be more than a meaningless exercise, requires enough steeping in technical matters to determine whether the agency “has exercised a reasoned discretion”… (citation omitted). Portland Cement Association v. Ruckelshaus, 486 F.2d 375, 402 (D.C. Cir., 1973) (Leventhal, J.) (standard for performance for portland cement plants remanded to agency for consideration and clarification for, inter alia, failure to provide reliability estimates for compliance capability tests, claimed faulty measurement techniques and failure to provide for variability of emissions associated with industrial malfunctions).
Ethyl, 541 F.2d 1, 36 (D.C. Cir., 1980). Accord, Lead Industries Ass’n v. EPA, 647 F.2d 1130, 1145 (D.C. Cir., 1980) (Judge Wright engaged in a close scrutiny of the evidence by a detailed exposition of the Agency position on several scientific issues and their rebuttal to criticism. The issues included: Maximum Safe Individual Blood Lead Level; Margin of Safety; Correlations between Air Lead and Blood Lead Levels).
McGarity, supra n.24, at 798 n.362.
The traditional legal research method identifies subsequent citations of the case of interest (SHEPARDIZE) as a means of determining the subsequent history of the principle represented by the precedent.
I.U.D. v. A.P.I., 448 U.S. 607 (1980), 4 unreported District Court decisions found in the Bureau of National Affairs’ Occupational Safety and Health Cases report series, and 2 later decided cases.
The search strategy was modified and used to generate the data in Table 3.
Feinstein, Clinical Biostatistics XXXI. On the Sensitivity, Specificity, and Discrimination of Diagnostic Tests, 17 Clinical Pharmacology and Therapeutics 104 (1975); Bing and Harvold, Legal Decisions and Information Systems (1977).
Oleinick and Disney, Development and Evaluation of a LEXIS Search Strategy Whose Goal is the Identification of Health Risk Management Disputes Arising in the Context of Rule-Making (in preparation).
A.P.I., 448 U.S. 607 (1980).
Bing and Harvold, supra note 52, at 209–22.
Material regarding the other components required of a legally acceptable risk management strategy-control strategies and the technical or economic “feasibility” of such a control strategy-will be considered in subsequent papers.
A.P.I., 448 U.S. 607, 642 (1980) (benzene standard). The following opinions were given: Plurality: Stevens, J., Burger, C.J., Stewart, J., Powell, J. (J. Powell concurred in all parts of the opinion except IIID and IV). Concurrence: Burger, C.J. Concurring in part and in the judgment: Powell, J. Concurring in the judgment: Rehnquist, J. Dissent: Marshall, J., Brennan, J., White, J., Blackmun, J. Subsequent references to the portions of the plurality not joined by J. Powell are identified as plurality (IIID).
Id. at 671–88. J. Rehnquist, who concurred in the decision, but not in the opinion, was the fifth vote in the decision to overturn the standard.
Id. at 642.
Id.
Id. at 653 (plurality, IIID).
A.P.I., 448 U.S. 607 (1980).
U.S.W.A., 647 F.2d 1189, 1245 n. 84 (1980).
American Textile Mfr’s. Inst. v. Donovan, 452 U.S. 490 (1981); Cottonwarehouse Ass’n. v. Marshall, 449 U.S. 809 (1981).
U.S.W.A., 647 F.2d 1189, (D.C. Cir., 1980); Ginners, 630 F.2d 398 (5th Cir., 1980); Asarco v. OSHA, 647 F.2d 1 (9th Cir., 1981).
A.P.I., 448 U.S. 607, 655 n. 62, 706 (1980) (dissent).
Id. at 655 (IIID).
Id. at 646.
Id. at 655. The numbers do not indicate whether the opinion was referring to annual or working life risks. Depending on which was meant there is a 1600-fold difference in the risk level that the court indicated might be considered significant.
The agency findings required by I. U. D. vs A. P. I., U. S. (necessarily specify a range of risk, though not precisely defined at this time, within which risk by standard setting is appropriate. This range appears to subsume the 201Czone of “reasonableness” principles relied on by the District of Columbia Circuit to validate particular control
Id. at 646.
Id. at 655 (IIID).
Id. at 656 (IIID).
Id. at 657 n. 64 (IIID).
Id. at 667.
Id. at 707.
Id. at 666.
U.S.W.A., 647 F.2d 1189, 1253 (D.C. Cir., 1980) (quoting Ethyl Corp. v. EPA, 541 F.2d 1, 37–8 (D.C. Cir., 1976) (en banc), cert, denied, 426 U.S. 941 (1976)).
U.S.W.A., 647 F.2d 1189, 1263 (D.C. Cir., 1980).
A.P.I., 448 U.S. 607 (1980).
American Textile Mfr’s. Inst. v. Donovan, 452 U.S. 490, 505–6 n.25 (1981).
Id. at 496 n.8 (continuum refers to the progressive nature of the disease moving from pathophysiological change to acute reversible clinical disease to chronic irreversible cinical disease).
Id. at 496 n.9
Id.
U.S.W.A., 647 F.2d 1189 (D.C. Cir., 1980).
Id. at 1252.
Id. at 1258.
Id. at 1253.
Id.
Id. at 1254.
The other two effects, renal disease and reproductive damage, though placed in the subclinical class are distinguishable because they involve clear pathological changes in end organs.
Ginners, 630 F.2d 398, 407 (5th Cir., 1980) (the Court appeared to reject acute changes as a material impairment).
Supra n.5, 29 U.S.C. Sect. 655(c) (1982).
In determining the priority for establishing standards under this section, the Secretary shall give due regard to the urgency of the need for mandatory safety and health standards for particular industries, trades, crafts, occupations, businesses, workplaces, or work environments. The Secretary shall also give due regard to the recommendations of the Secretary of Health, Education, and Welfare regarding the need for mandatory standards in determining the priority for establishing such standards. 29 U.S.C. Sect. 655(g) (1982).
P.C.H.R.G., 702 F.2d 1150 (D.C. Cir., 1983).
Public Health Citizen Research Group v. Auchter, 11 OSHC 1049 (D.C., D.C., 1983).
P.C.H.R.G., 702 F.2d 1150, 1153 (D.C. Cir., 1983).
Id. at 1157.
“The reviewing court shall… (1) compel agency action unlawfully withheld or unreasonably delayed ”5 U.S.C. Sect. 706 (1) (1982).
P.C.H.R.G., 702 F.2d 1150, 1158 (D.C. Cir., 1983). The final rule, 29 C.F.R. 1910.1047, was issued June 22, 1984, 14 months later.
Id. at 1157.
I. Nat’l Congress of Hispanic American Citizens v. Dunlop, 425 F. Supp 900 (D.C., D.C., 1975). Nat’l Cong, of Hispanic Am. Cit. v. Usery, 554 F.2d 1196 (D.C., Cir., 1977). Nat’l Cong, of Hispanic Am. Cit. v. Marshall, 6 OSHC 2157 (D.C., D.C., 1978). Nat’l Cong, of Hispanic Am. Cit. v. Marshall, 626 F.2d 882 (D.C., Cir., 1979). Nat’l Cong, of Hispanic Am. Cit. v. Donovan, 10 OSHC 1105 (D.C., D.C., 1981).
U.S.C. Sect. 652(b)(l)-(4) (1982).
Hispanic II at 1199.
Id. 1200.
Hispanic IV at 891.
Id.
Id. at 890. OSHA has declined to issue a standard pending state actions (15 OSHR 324, 1985).
Id. at 886, 889.
Id. at 891.
Whirlpool v. Marshall, 445 U.S. 1 (1980).
Id. at 10–11.
Id.
Supra note 73.
Supra note 78.
Supra note 79.
The comments and exhibits received before the hearings, the written and oral testimony of the hearing participants, and post-hearing comments and briefs comprise the informal rulemaking record for the final cotton dust standard promulgated by the agency. This record exceeds 105,000 pages in length; it includes comments from 263 parties and testimony form 109 participants at the hearing. The Final Standard and its accompanying statement of reasons fill 68 pages of the Federal Register [footnote omitted].
A.F.L., 617 F.2d 636, 647 (D.C. Cir., 1979).
U.S.W.A., 647 F.2d 1189 (D.C. Cir., 1980).
Id. at 1249.
Id. at 1252–58. Named studies only were counted. Federal Register citations were not reviewed to distinguish between studies and expert opinion. At blood levels of 50–70 |xg%: eg, heme synthesis inhibition-more than 70% of population show 70% inhibition of heme synthesis at 50 |xg%, behavioral disturbances and decreases in hemoglobin concentration, Id. at 1253; neurological effects-encephalopathy and decreased nerve conduction velocity, Id. at 1254–55; renal disease-30 to 50% loss of kidney function in 15 workers with blood levels below 60 |xg% at the time of renal evaluation, Id. at 1255–6; reproductive effects-hypospermia and asthenospermia at blood-lead levels averaging 52.8 jxg%, Id. at 1257.
The studies cited in n. 121 also contained examples of renal disease and sperm defects at approximately 40 |xg%, the proposed blood-lead level target, Id. at 1255, 1257.
123…the ordinary situation of controverted evidence, in which we must defer to the reasonable and conscientious interpretations of the agency. Id. at 1258.
P.C.H.R.G., 702 F.2d 1150 (D.C. Cir., 1983).
Id. at 1157.
Id. at 1154.
Id.
Id.
Id. at 1156.
A.P.I., 448 U.S. 607, 705, 707 (1980).
Id. Support for this statement is provided by a comparison of the plurality’s and dissent’s characterizations of OSHA’s findings with the actual finding itself in the Federal Register (43 Fed. Reg. 5918, 2/10/78)132. Id. at 707.
Id. at 707.
A.T.M.I., 452 U.S. 490 (1981).
Id. at 505–6 n. 25.
Id. at 496.
U.S.W.A., 647 F.2d 1189, 1258 (D.C. Cir., 1980).
A.F.L., 617 F.2d 636 (D.C. Cir., 1979).
Id. at 667 n. 185.
Cottonwarehouse Ass’n., 449 U.S. 809 (1981) (the decision was vacated and remanded for reconsideration in light of I.U.D. v. A.P.I., 448 U.S. 607 (1980). It is not clear that the remand would require reconsideration of the material impairment finding).
The agency arguably has adduced substantial evidence of acute respiratory effects on American gin workers from cotton dust exposure; it assumes from cotton industry studies that these acute effects develop into byssinosis and other chronic respiratory disease. OSHA has not provided substantial evidence that byssinosis and other chronic disease arise from the exposure level to cotton dust in the ginning industry with its significantly different conditions and its significantly different exposure level. Ginners, 630 F.2d 398, 409 (5th Cir., 1980).
It is ancient wisdom that statutes should be interpreted so as to effectuate their manifested purpose or object. With reference to this principle, a statute is liberally construed when its letter is extended to include matters within the spirit or purpose of the statute,… The modern course of liberal interpretation, therefore, is to make greater use of legislative manifestations of prevailing social policy and the technique of projecting manifested principle by analogy in order to integrate separate and independent statutory provisions, often inspired by episodic and superficially unrelated events or circumstances, into a consistent and currently relevant body of jurisprudence. [Citations omitted] D. Sands, Statutes and Statutory Construction, Sect. 58.06 (1973). Even though “purpose” statements are now a routine part of statutes enacted, they are often stated so broadly as not to interfere with the judicial discretion implied by the preceding text. The Congress declares it to be its purpose and policy, through the exercise of its powers to regulate commerce among the several States and with foreign nations and to provide for the general welfare, to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources… (7) by providing medical criteria which will assure insofar as practicable that no employee will suffer diminished health, functional capacity, or life expectancy as a result of his work experience; Eg, 29 U.S.C. 651(b) (1982).
Statutes are considered to be in pari materia… to pertain to the same subject matter… when they relate to the same person or thing, or to the same class of persons or things, or have the same purpose or object. As between characterization of the subject matter with which a statute deals and characterization of its object or purpose, the latter appears to be the more important factor in determining whether different statutes are closely enough related to justify interpreting one in the light of the other. D. Sands, Statutes and Statuatory Construction, Sect. 51.03 (1973).
Remedial statutes are liberally construed to suppress the evil and advance the remedy. The policy that a remedial statute should be liberally construed in order to effectuate the remedial purpose for which it was enacted is firmly established. Expressions of a rule to that effect appear over and over in judicial opinions on issues of statutory interpretation. 144. Id. at Sect. 60.01.
Sands does not explicitly recognize secondary sources although, as our example indicates, courts clearly give some “weight” to academic articles.
“One of the common techniques of statutory construction, besides being always a starting point, is to read and examine the text of the act and draw inferences concerning meaning from its composition and structure.” Id. at Sect. 47.01.
P.C.H.R.G., 702 F.2d 1150, 1156 (D.C. Cir., 1983) citing Welford v. Ruckelshaus, 439 F.2d 598, 601 (D.C. Cir., 1971) (in light of close scrutiny required where personal interests in life and health are involved, court remanded EPA decision not to suspend 2,4, 5-T use because agency had not considered possible harm to farm workers.).
Id. citing Nader v. Nuclear Regulatory Commission, 513 F.2d 1045, 1047 (D.C. Cir., 1975) (court noted special responsibility to review agency action with potentially disastrous consequences but upheld agency since its action was based on diverse expert opinion. No data reviewed by Court.).
U.S.W.A., 647 F.2d 1189, 1253 (D.C. Cir., 1980) citing Ethyl, 541 F.2d 1, 37–38 (D.C. Cir.) (en banc), cert, denied, 426 U.S. 941 (1976) (court upheld EPA decision to reduce lead additives in gasoline, finding that the agency had established that population lead levels are elevated, seriously so in some groups, and that automobile exhaust contributes to human lead levels. The findings were based upon a “totality of the evidence” drawn from “inconclusive but suggestive results of numerous studies.”).
A.F.L., 617 F.2d 636, 667 (D.C. Cir., 1979) citing E.D.F. v. E.P.A., 598 F.2d 62, 83–85 (D.C. Cir., 1978) (court permitted extrapolation of data from highly chlorinated to less chlorinated polychlorinated biphenyls).
I.U.D. v. A.P.I., 448 U.S. 607, 707 (1980) citing F.P.C. v. Florida Power & Light Co., 404 U.S. 453, 464–465 (1972) (The Court upheld the FPC’s jurisdiction over Florida Power and Light Co. on the theory that FPL electricity “commingled” with electricity bound for out-of-state customers. The commingling analysis rested upon expert testimony which, in turn, was “based on what is known and uncontradicted by empirical evidence.”).
U.S.W.A., 647 F.2d 1189, 1237 (D.C. Cir., 1980).
Tabulations were prepared for J. Bazelon (A.F.L., 617 F.2d 636 (D.C. Cir., 1979)) and J. Wright (U.S.W.A., 647 F.2d 1189 (D.C. Cir., 1980)). Since the approaches seemed similar, two examples from U.S.W.A. are provided.
U.S.W.A., 647 F.2d 1189, (D.C. Cir., 1980).
Supra note 131.
Gulf South Insulation v. CPSC, 701 F.2d 1137 (5th Cir., 1983).
Id. at 1146.
Though neither noted by the agency in its statement of basis and purpose supporting its decision in the Federal Register nor by the Court in its opinion, this incidence is, extraordinarily high. No cases of this tumor type have been reported in observations of 9484 rats of the same strain used in the formaldehyde studies, the Fischer 344 strain. NIOSH, Current Intelligence Bulletin 34: Formaldehyde, April 15, 1981.
Gulf South Insulation, 701 F.2d 1137, 1146 (5th Cir., 1983).
Id.
FR 14372 (4/2/82).
Gulf South Insulation, 701 F.2d 1137, n. 18 at 1146 (5th Cir., 1983). The Court apparently disregarded the experience at 5.6 ppm because the incidence, by itself, was not statistically significant. However, this approach ignores completely the confirmation of formaldehyde’s carcinogenic potential provided by dose-response data at two exposure levels.
Id. n. 19 at 1146.
FR 14369, 14371 (4/2/82).
C.F.R. 1910.1000, Table Z-l to Z-3. These exposure values were adopted under 29 U.S.C. 655(a) (1982) which permitted OSHA, for a period of two years from the effective data of the act, to adopt national consensus standards without complying with the usual standard-setting process. These standards have not been revised subsequently with the exception of those substances in the air contaminants tables which are also included in the list of 24 substances for which OSHA issued standards by the full rule-making process during the period 1971–1982. During the time period since the promulgation of the consensus standards (to 1983) the limits permitted by OSHA and those recommended by a major industrial hygiene association, the American Conference of Governmental Industrial Hygienists (ACGIH), have increasingly diverged. An analysis of a 10% sample of substances in Table Z-l and a 20%sample of substances in the remaining tables (a total of 41 chemicals) indicates that, for 39% of substances (16/41), the ACGIH recommendation is more than 25% below the level permitted by OSHA while for only 5% of substances (2/41), the ACGIH level is greater than 25% above the OSHA level. Quite clearly, there is a need to identify a new approach to standard setting which will permit revision of OSHA’s dated exposure levels.
See, eg, NIOSH. Occupational Hazard Assessment Criteria for Controlling Occupational Exposure to Cobalt. DHHS (NIOSH) Publication N. 82–107 (1981). The document describes fibrotic lung disease occurring at the current exposure limit of 0.1 mg/m3 and also at substantially lower exposures.
The proposed phased standard-setting process differs from that contained in the current OSHA cancer policy, 29 C.F.R. 1990 (1982), in that the first phase proposes a generic decision on what constitutes a significant risk of material impairment.
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Oleinick, A., Disney, L.D., East, K.S. (1986). Institutional Mechanisms for Converting Sporadic Agency Decisions into Systematic Risk Management Strategies. In: Covello, V.T., Menkes, J., Mumpower, J. (eds) Risk Evaluation and Management. Contemporary Issues in Risk Analysis, vol 1. Springer, Boston, MA. https://doi.org/10.1007/978-1-4613-2103-3_16
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