Case Study:
[The Secretary of Labor, acting through the Occupational Safety & Health Administration, promulgated the so-called Cotton Dust Standard limiting occupational exposure to cotton dust, exposure to which induces byssinosis, a serious and potentially disabling respiratory disease known as “brown lung” disease. Petitioners, representing the cotton industry, challenged the validity of the standard in the court of appeals, contending that the Act requires OSHA to demonstrate that the standard reflects a reasonable relationship between the costs and benefits associated with the standard, that OSHA’s determination of the standard’s “economic feasibility” was not supported by substantial evidence, and that the wage guarantee requirement contained in the standard was beyond OSHA’s authority. The court of appeals upheld the standard in all major respects.] BRENNAN, J.… I. Byssinosis, known in its more severe manifestations as “brown lung” disease, is a serious and potentially disabling respiratory disease primarily caused by the inhalation of cotton dust.* Byssinosis is a “continuum … disease,” that has been categorized into four grades. In its least serious form byssinosis produces both subjective symptoms, such as chest tightness, shortness of breath, coughing, and wheezing, and objective indications of loss of pulmonary functions. In its most serious form, byssinosis is a chronic and irreversible obstructive pulmonary disease, clinically similar to chronic bronchitis or emphysema, and can be severely disabling. At worst, as is true of other respiratory diseases including bronchitis, emphysema, and asthma, byssinosis can create an additional strain on cardiovascular functions and can contribute to death from heart failure. One authority has described the increasing seriousness of byssinosis as follows: “In the first few years of exposure [to cotton dust], the symptoms occur on Monday, or other days after absence from the work environment; later, symptoms occur on other days of the week; and eventually, symptoms are continuous, even in the absence of dust exposure.” A. Bouhuys, Byssinosis in the United States, Exhibit 6-16, Joint App. 15. While there is some uncertainty over the manner in which the disease progresses from its least serious to its disabling grades, it is likely that prolonged exposure contributes to the progression. It also appears that a worker may suddenly contract a severe grade without experiencing milder grades of the disease. Estimates indicate that at least 35,000 employed and retired cotton mill workers, or 1 in 12 such workers, suffers from the most disabling form of byssinosis. The Senate Report accompanying the Act cited estimates that 100,000 active and retired workers suffer from some grade of the disease. One study found that over 25 percent of a sample of active cotton preparation and yarn manufacturing workers suffer at least some form of the disease at a dust exposure level common prior to adoption to the current standard. Other studies confirm these general findings on the prevalence of byssinosis. Not until the early 1960s was byssinosis recognized in the United States as a distinct occupational hazard associated with cotton mills. In 1966, the American Conference of Governmental Industrial Hygienists (ACGIH), a private organization, recommended that exposure to total cotton dust be limited to a “threshold limit value” of 1,000 micrograms per cubic meter of air (1000 μg/m3 ) averaged over an 8-hour workday. The United States government first regulated exposure to cotton dust in 1968, when the Secretary of Labor, pursuant to the Walsh-Healey Act, 41 U.S.C. § 35(e), promulgated airborne contaminant threshold limit values, applicable to public contractors, that included the 1000 μg/m3 limit for total cotton dust. 34 Fed. Reg. 7953 (1969). Following passage of the Act, in 1970, the 1000 μg/m3 standard was adopted as an “established federal standard” under § 6(a) of the Act, 29 U.S.C. § 655(a).… [In 1974] the Director of the National Institute for Occupational Safety and Health (NIOSH), pursuant to the Act, 29 U.S.C. §§ 669(a)(3), 671(d)(2), submitted to the Secretary of Labor a recommendation for a cotton dust standard with a permissible exposure limit (PEL) that “should be set at the lowest level feasible, but in no case at an environmental concentration as high as 0.2 mg lint-free cotton dust/cu.m.,” or 200 μg/m3 of lint-free respirable dust…. The Cotton Dust Standard promulgated by OSHA establishes mandatory PELs over an 8-hour period of 200 μg/m3 for yarn manufacturing, 750 μg/m3 for slashing and weaving operations, and 500 μg/m3 for all other processes in the cotton industry. These levels represent a relaxation of the proposed PEL of 200 μg/m3 for all segments of the cotton industry. OSHA chose an implementation strategy for the standard that depended primarily on a mix of engineering controls, such as installation of ventilation systems, and work practice controls, such as special floor sweeping procedures. Full compliance with the PELs is required within four years, except to the extent that employers can establish that the engineering and work practice controls are feasible. During this compliance period, and at certain other times, the Standard requires employers to provide respirators to employees. Other requirements include monitoring of cotton dust exposure, medical surveillance of all employees, annual medical examinations, employee education and training programs, and the posting of warning signs. A specific provision also under challenge in the instant case requires employers to transfer employees unable to wear respirators to another position, if available, having a dust level at or below the Standard’s PELs, with “no loss of earnings or other employment rights or benefits as a result of the transfer.” II. The principal question presented in this case is whether the Occupational Safety and Health Act requires the Secretary, in promulgating a standard pursuant to § 6(b)(5) of the Act, 29 U.S.C. § 655(b)(5), to determine that the costs of the standard bear a reasonable relationship to its benefits. Relying on §§ 6(b)(5) and 3(8) of the Act, 29 U.S.C. §§ 655(b)(5), 652(8), petitioners urge not only that OSHA must show that a standard addresses a significant risk of material health impairment, see Industrial Union Department v. American Petroleum Institute, supra, slip op., at 29 (plurality opinion),** but also that OSHA must demonstrate that the reduction in risk of material health impairment is significant in light of the costs of attaining that reduction. Respondents on the other hand contend that the Act requires OSHA to promulgate standards that eliminate or reduce such risks “to the extent such protection is technologically and economically feasible.” To resolve this debate, we must turn to the language, structure, and legislative history of the Occupational Safety and Health Act. A. The starting point of our analysis is the language of the statute itself. Section 6(b)(5) of the Act, 29 U.S.C. § 655(b)(5) (emphasis added), provides: The secretary, in promulgating standards dealing with toxic materials or harmful physical agentsunder this subsection, shall set the standard which most adequately assures, 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 dealt with by such standard for the period of his working life. Although their interpretations differ, all parties agree that the phrase “to the extent feasible” contains the critical language in § 6(b)(5) for purposes of this case. The plain meaning of the word “feasible” supports respondents’ interpretation of the statute. According to Webster’s Third New International Dictionary of the English Language, “feasible” means “capable of being done, executed, or effected.” Id., at 831 (1976).… Thus, § 6(b)(5) directs the Secretary to issue the standard that “most adequately assures … that no employee will suffer material impairment of health,” limited only by the extent to which this is “capable of being done.” In effect, then, as the Court of Appeals held, Congress itself defined the basic relationship between cost and benefits, by placing the “benefit” of worker health above all other considerations save those making attainment of this “benefit” unachievable. Any standard based on a balancing of costs and benefits by the Secretary that strikes a different balance than that struck by Congress would be inconsistent with the command set forth in § 6(b)(5). Thus, cost-benefit analysis by OSHA is not required by the statute because feasibility analysis is. See Industrial Union Department v. American Petroleum Institute, supra, slip op., at 32 (MARSHALL, J., dissenting). B. Even though the plain language of § 6(b)(5) supports this construction, we must still decide whether § 3(8), the general definition of an occupational safety and health standard, either alone or in tandem with § 6(b)(5), incorporates a cost-benefit requirement for standards dealing with toxic materials or harmful physical agents. Section 3(8) of the Act, 29 U.S.C. § 652(8) (emphasis added), provides: The term “occupational safety and health standard” means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment. Taken alone, the phrase “reasonably necessary or appropriate” might be construed to contemplate some balancing of the costs and benefits of a standard. Petitioners urge that, so construed, § 3(8) engrafts a cost-benefit analysis requirement on the issuance of § 6(b)(5) standards, even if § 6(b)(5) itself does not authorize such analysis. We need not decide whether § 3(8), standing alone, would contemplate some form of cost-benefit analysis. For even if it does, Congress specifically chose in § 6(b)(5) to impose separate and additional requirements for issuance of a subcategory of occupational safety and health standards dealing with toxic materials and harmful physical agents: it required that those standards be issued to prevent material impairment of health to the extent feasible. Congress could reasonably have concluded that health standards should be subject to different criteria than safety standards because of the special problems presented in regulating them. Agreement with petitioners’ argument that § 3(8) imposes an additional and overriding requirement of cost-benefit analysis on the issuance of § 6(b)(5) standards would eviscerate the “to the extent feasible” requirement. Standards would inevitably be set at the level indicated by cost-benefit analysis, and not at the level specified by § 6(b)(5). For example, if cost-benefit analysis indicated a protective standard of 1000 μg/m3 PEL, while feasibility analysis indicated a 500 μg/m3 PEL, the agency would be forced by the cost-benefit requirement to choose the less stringent point. We cannot believe that Congress intended the general terms of § 3(8) to countermand the specific feasibility requirement of § 6(b)(5). Adoption of petitioners’ interpretation would effectively write § 6(b)(5) out of the Act. We decline to render Congress’ decision to include a feasibility requirement nugatory, thereby offending the well-settled rule that all parts of a statute, if possible, are to be given effect. Congress did not contemplate any further balancing by the agency for toxic material and harmful physical agents standards, and we should not “impute to Congress a purpose to paralyze with one hand what it sought to promote with the other.” C. The legislative history of the Act, while concededly not crystal clear, provides general support for respondents’ interpretation of the Act. The congressionareports and debates certainly confirm that Congress meant “feasible” and nothing else in using that term. Congress was concerned that the Act might be thought to require achievement of absolute safety, an impossible standard, and therefore insisted that health and safety goals be capable of economic and technological accomplishment. Perhaps most telling is the absence of any indication whatsoever that Congress intended OSHA to conduct its own cost-benefit analysis before promulgating a toxic material or harmful physical agent standard. The legislative history demonstrates conclusively that Congress was fully aware that the Act would impose real and substantial costs of compliance on industry, and believed that such costs were part of the cost of doing business. III. Section 6(f) of the Act provides that “[t]he determinations of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole.” 29 U.S.C. § 655(f). Petitioners contend that the Secretary’s determination that the Cotton Dust Standard is “economically feasible” is not supported by substantial evidence in the record considered as a whole. In particular, they claim (1) that OSHA underestimated the financial costs necessary to meet the Standard’s requirements; and (2) that OSHA incorrectly found that the Standard would not threaten the economic viability of the cotton industry…. OSHA derived its cost estimate for industry compliance with the Cotton Dust Standard after reviewing two financial analyses, one prepared by the Research Triangle Institute (RTI), an OSHAcontracted group, the other by industry representatives (Hocutt-Thomas). The agency carefully explored the assumptions and methodologies underlying the conclusions of each of these studies. From this exercise the agency was able to build upon conclusions from each which it found reliable and explain its process for choosing its cost estimate…. RTI evaluated the likely economic impact on the cotton industry and the United States economy of OSHA’s original proposed standard, an acrossthe-board 200 μg/m3 PEL. RTI had estimated a total compliance cost of $2.7 billion for a 200 μg/m3 PEL, and used this estimate in assessing the economic impact of such a standard…. OSHA estimated total compliance costs of $656.5 million for the final Cotton Dust Standard, a Standard less stringent, than the across-the-board 200 μg/m3 PEL of the proposed standard. Therefore, the agency found that the economic impact of its Standard would be “much less severe” than that suggested by RTI for a 200 μg/m3 PEL estimate of $2.7 billion…. Relying on its comprehensive economic evaluation of the cotton industry’s ability to absorb the $2.7 billion compliance cost of a 200 μg/m3 PEL standard, RTI concluded that “nothing in the RTI study indicates that the cotton textile industry as a whole will be seriously threatened.” Therefore, it follows a fortiori that OSHA’s estimated compliance cost of $656.6 million is “economically feasible.” Even if OSHA’s estimate were understated, we are fortified in observing that RTI found that a standard more than four times as costly was nevertheless economically feasible. The Court of Appeals found that the agency “explained the economic impact it projected for the textile industry,” and that OSHA has “substantial support in the record for its findings of economic feasibility for the textile industry.” 617 F.2d, at 662. On the basis of the whole record, we cannot conclude that the Court of Appeals “misapprehended or grossly misapplied” the substantial evidence test. IV. The final Cotton Dust Standard places heavy reliance on the use of respirators to protect employees from exposure to cotton dust, particularly during the 4-year interim period necessary to install and implement feasible engineering controls. One part of the respirator provision requires the employer to give employees unable to wear a respirator the opportunity to transfer to another position, if available, where the dust level meets the standard’s PEL. When such a transfer occurs, the employer must guarantee that the employee suffers no loss of earnings or other employment rights or benefits. Petitioners do not object to the transfer provision, but challenge OSHA’s authority under the Act to require employers to guarantee employees’ wage and employment benefits following the transfer…. … Because the Act in no way authorizes OSHA to repair general unfairness to employees that is unrelated to achievement of health and safety goals, we conclude that OSHA acted beyond statutory authority when it issued the wage guarantee regulation. Affirmed in part, reversed in part. Dissenting Opinions [Justice Stewart in his dissent observed that all parties to the case agree that the statute requires that the standard must at least be economically feasible. “[E]verybody would also agree, I suppose, that in order to determine whether or not something is economically feasible, one must have a fairly clear idea of how much it is going to cost.” Justice Stewart states, “Because I believe that OSHA failed to justify its estimate of the cost of the cotton dust standard on the basis of substantial evidence, I would reverse the judgment before us without reaching the question whether the Act requires that a standard, beyond being economically feasible, must meet the demands of a cost-benefit examination.” Justice Rehnquist, joined in dissent by Chief Justice Burger, states that the majority ruling leaves open the possibility that the Secretary of Labor may engage in a cost-benefit analysis, although not required by the Act to do so. He rejects the view of the majority opinion which forbids a weighing of costs versus benefits. Justice Rehnquist submits that the statutory phrase “to the extent feasible” provides no meaningful guidance to federal administrators and therefore represents an unconstitutional delegation of legislative authority to the executive branch of government.]
Q1. What is byssinosis?
Q2. Did OSHA demonstrate that the Cotton Dust Standard was reasonably necessary or appropriate to protect employees against a significant risk of health impairment as required by the Industrial Union Department v. American Petroleum Institute decision?
Q3. Does the Occupational Safety and Health Act require the Secretary of Labor, in promulgating a standard pursuant to Section 6(b)(5), to determine that the costs of the standard bear a reasonable relationship to its benefits?
Q4. Was the Secretary of Labor’s determination on economic feasibility supported by substantial evidence?
Q5. Did the Secretary (OSHA) make the necessary determinations that the wage guarantee requirement was related to the achievement of a safe and healthful work environment?
Your answer must be, typed, double-spaced, Times New Roman font (size 12), one-inch margins on all sides, APA format and also include references.