Court rejects benzene exposure standards as exceeding OSHA's statutory authority
- Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S.
607 (1980)
| [1] | SUPREME COURT OF THE UNITED STATES
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| [2] | No. 78-911
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| [3] | 100 S. Ct. 2844, 448 U.S. 607, 65 L. Ed. 2d 1010, 1980.SCT.42439 <http://www.versuslaw.com>
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| [4] | decided*fn*: July 2, 1980.
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| [5] | INDUSTRIAL UNION DEPARTMENT, AFL-CIO
v.
AMERICAN PETROLEUM INSTITUTE ET AL.
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| [6] | CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
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| [7] | George H. Cohen argued the cause for petitioner in No. 78-911. With him on the briefs were Robert M. Weinberg, J. Albert Woll, Laurence Gold, Elliot Bredhoff, and George Kaufmann. William Alsup argued the cause for petitioner in No. 78-1036. With him on the briefs were Solicitor General McCree, Deputy Solicitor General Easterbrook, Benjamin W. Mintz, and Dennis K. Kade.
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| [8] | Edward W. Warren argued the cause for respondents American Petroleum Institute et al. in both cases. With him on the brief were Stark Ritchie, Martha Beauchamp, Neil J. King, John H. Pickering, Robert R. Bonczek, John F. Dickey, Robert L. Ackerly, and Harold B. Scoggins, Jr. Charles F. Lettow argued the cause for respondents Rubber Manufacturers Association, Inc., et al. in both cases. With him on the brief was John C. Murphy, Jr.*fn**
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| [9] | Stevens, J., announced the judgment of the Court and delivered an opinion, in which Burger, C. J., and Stewart, J., joined, and in Parts I, II, III-A, III-B, III-C, and III-E of which Powell, J., joined. Burger, C. J., filed a concurring opinion, post, p. 662. Powell, J., filed an opinion concurring in part and concurring in the judgment, post, p. 664. Rehnquist, J., filed an opinion concurring in the judgment, post, p. 671. Marshall, J., filed a dissenting opinion, in which Brennan, White, and Blackmun, JJ., joined, post, p. 688.
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| [10] | Author: Stevens
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[ 448 U.S. Page 611]
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| [11] | MR. JUSTICE STEVENS announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE and MR. JUSTICE STEWART joined and in Parts I, II, III-A, III-B, III-C, and III-E of which MR. JUSTICE POWELL joined.
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| [12] | The Occupational Safety and Health Act of 1970 (Act), 84 Stat. 1590, 29 U. S. C. § 651 et seq., was enacted for the purpose of ensuring safe and healthful working conditions for every working man and woman in the Nation. This litigation concerns a standard promulgated by the Secretary of Labor to regulate occupational exposure to benzene, a substance which has been shown to cause cancer at high exposure levels. The principal question is whether such a showing is a sufficient basis for a standard that places the most stringent limitation on exposure to benzene that is technologically and economically possible.
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| [13] | The Act delegates broad authority to the Secretary to promulgate different kinds of standards. The basic definition
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[ 448 U.S. Page 612]
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| | of an "occupational safety and health standard" is found in § 3 (8), which provides:
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| [14] | "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." 84 Stat. 1591, 29 U. S. C. § 652 (8).
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| [15] | Where toxic materials or harmful physical agents are concerned, a standard must also comply with § 6 (b)(5), which provides:
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| [16] | "The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under 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. Development of standards under this subsection shall be based upon research, demonstrations, experiments, and such other information as may be appropriate. 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." 84 Stat. 1594, 29 U. S. C. § 655 (b)(5).*fn1
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[ 448 U.S. Page 613]
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| | Wherever the toxic material to be regulated is a carcinogen, the Secretary has taken the position that no safe exposure level can be determined and that § 6 (b)(5) requires him to set an exposure limit at the lowest technologically feasible level that will not impair the viability of the industries regulated. In this case, after having determined that there is a causal connection between benzene and leukemia (a cancer of the white blood cells), the Secretary set an exposure limit on airborne concentrations of benzene of one part benzene per million parts of air (1 ppm), regulated dermal and eye contact with solutions containing benzene, and imposed complex monitoring and medical testing requirements on employers whose workplaces contain 0.5 ppm or more of benzene. 29 CFR §§ 1910.1028 (c), (e) (1979).
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| [17] | On pre-enforcement review pursuant to 29 U. S. C. § 655 (f), the United States Court of Appeals for the Fifth Circuit held the regulation invalid. American Petroleum Institute v. OSHA, 581 F.2d 493 (1978). The court concluded that the Occupational Safety and Health Administration (OSHA)*fn2 had exceeded its standard-setting authority because it had not shown that the new benzene exposure limit was "reasonably necessary or appropriate to provide safe or healthful employment" as required by § 3 (8),*fn3 and because § 6 (b)(5)
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[ 448 U.S. Page 614]
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| | does "not give OSHA the unbridled discretion to adopt standards designed to create absolutely risk-free workplaces regardless of costs."*fn4 Reading the two provisions together, the Fifth Circuit held that the Secretary was under a duty to determine whether the benefits expected from the new standard bore a reasonable relationship to the costs that it imposed. Id., at 503. The court noted that OSHA had made an estimate of the costs of compliance, but that the record lacked substantial evidence of any discernible benefits.*fn5
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| [18] | We agree with the Fifth Circuit's holding that § 3 (8) requires the Secretary to find, as a threshold matter, that the
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[ 448 U.S. Page 615]
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| | toxic substance in question poses a significant health risk in the workplace and that a new, lower standard is therefore "reasonably necessary or appropriate to provide safe or healthful employment and places of employment." Unless and until such a finding is made, it is not necessary to address the further question whether the Court of Appeals correctly held that there must be a reasonable correlation between costs and benefits, or whether, as the federal parties argue, the Secretary is then required by § 6 (b)(5) to promulgate a standard that goes as far as technologically and economically possible to eliminate the risk.
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| [19] | Because these are unusually important cases of first impression, we have reviewed the record with special care. In this opinion, we (1) describe the benzene standard, (2) analyze the Agency's rationale for imposing a 1 ppm exposure limit, (3) discuss the controlling legal issues, and (4) comment briefly on the dermal contact limitation.
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| [20] | I
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| [21] | Benzene is a familiar and important commodity. It is a colorless, aromatic liquid that evaporates rapidly under ordinary atmospheric conditions. Approximately 11 billion pounds of benzene were produced in the United States in 1976. Ninety-four percent of that total was produced by the petroleum and petrochemical industries, with the remainder produced by the steel industry as a byproduct of coking operations. Benzene is used in manufacturing a variety of products including motor fuels (which may contain as much as 2% benzene), solvents, detergents, pesticides, and other organic chemicals. 43 Fed. Reg. 5918 (1978).
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| [22] | The entire population of the United States is exposed to small quantities of benzene, ranging from a few parts per billion to 0.5 ppm, in the ambient air. Tr. 1029-1032. Over one million workers are subject to additional low-level exposures as a consequence of their employment. The majority of these employees work in gasoline service stations, benzene
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[ 448 U.S. Page 616]
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| | production (petroleum refineries and coking operations), chemical processing, benzene transportation, rubber manufacturing, and laboratory operations.*fn6
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| [23] | Benzene is a toxic substance. Although it could conceivably cause harm to a person who swallowed or touched it, the principal risk of harm comes from inhalation of benzene vapors. When these vapors are inhaled, the benzene diffuses through the lungs and is quickly absorbed into the blood.
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[ 448 U.S. Page 617]
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| | Exposure to high concentrations produces an almost immediate effect on the central nervous system. Inhalation of concentrations of 20,000 ppm can be fatal within minutes; exposures in the range of 250 to 500 ppm can cause vertigo, nausea, and other symptoms of mild poisoning. 43 Fed. Reg. 5921 (1978). Persistent exposures at levels above 25-40 ppm may lead to blood deficiencies and diseases of the blood-forming organs, including aplastic anemia, which is generally fatal.
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| [24] | Industrial health experts have long been aware that exposure to benzene may lead to various types of nonmalignant diseases. By 1948 the evidence connecting high levels of benzene to serious blood disorders had become so strong that the Commonwealth of Massachusetts imposed a 35 ppm limitation on workplaces within its jurisdiction. In 1969 the American National Standards Institute (ANSI) adopted a national consensus standard of 10 ppm averaged over an 8-hour period with a ceiling concentration of 25 ppm for 10-minute periods or a maximum peak concentration of 50 ppm. Id., at 5919. In 1971, after the Occupational Safety and Health Act was passed, the Secretary adopted this consensus standard as the federal standard, pursuant to 29 U. S. C. § 655 (a).*fn7
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[ 448 U.S. Page 618]
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| | As early as 1928, some health experts theorized that there might also be a connection between benzene in the workplace and leukemia.*fn8 In the late 1960's and early 1970's a number of epidemiological studies were published indicating that workers exposed to high concentrations of benzene were subject to a significantly increased risk of leukemia.*fn9 In a 1974 report recommending a permanent standard for benzene, the National Institute for Occupational Safety and Health
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[ 448 U.S. Page 619]
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| | (NIOSH), OSHA's research arm,*fn10 noted that these studies raised the "distinct possibility" that benzene caused leukemia. But, in light of the fact that all known cases had occurred at very high exposure levels, NIOSH declined to recommend a change in the 10 ppm standard, which it considered sufficient to protect against nonmalignant diseases. NIOSH suggested that further studies were necessary to determine conclusively whether there was a link between benzene and leukemia and, if so, what exposure levels were dangerous.*fn11
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| [25] | Between 1974 and 1976 additional studies were published which tended to confirm the view that benzene can cause leukemia, at least when exposure levels are high.*fn12 In an
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[ 448 U.S. Page 620]
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| | August 1976 revision of its earlier recommendation, NIOSH stated that these studies provided "conclusive" proof of a causal connection between benzene and leukemia. 1 Record, Ex. 2-5, p. 100. Although it acknowledged that none of the intervening studies had provided the dose-response data it had found lacking two years earlier, id., at 9, NIOSH nevertheless recommended that the exposure limit be set as low as possible. As a result of this recommendation, OSHA contracted with a consulting firm to do a study on the costs to industry of complying with the 10 ppm standard then in effect or, alternatively, with whatever standard would be the lowest feasible. Tr. 505-506.
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| [26] | In October 1976, NIOSH sent another memorandum to OSHA, seeking acceleration of the rulemaking process and "strongly" recommending the issuance of an emergency temporary standard pursuant to § 6 (c) of the Act, 29 U. S. C. § 655 (c),*fn13 for benzene and two other chemicals believed to
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[ 448 U.S. Page 621]
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| | be carcinogens. NIOSH recommended that a 1 ppm exposure limit be imposed for benzene.*fn14 1 Record, Ex. 2-6. Apparently because of the NIOSH recommendation, OSHA asked its consultant to determine the cost of complying with a 1 ppm standard instead of with the "minimum feasible" standard. Tr. 506-507. It also issued voluntary guidelines for benzene, recommending that exposure levels be limited to 1 ppm on an 8-hour time-weighted average basis wherever possible. 2 Record, Ex. 2-44.
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| [27] | In the spring of 1976, NIOSH had selected two Pliofilm plants in St. Marys and Akron, Ohio, for an epidemiological study of the link between leukemia and benzene exposure. In April 1977, NIOSH forwarded an interim report to OSHA indicating at least a fivefold increase in the expected incidence of leukemia for workers who had been exposed to benzene
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[ 448 U.S. Page 622]
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| | at the two plants from 1940 to 1949.*fn15 The report submitted to OSHA erroneously suggested that exposures in the two plants had generally been between zero and 15 ppm during the period in question.*fn16 As a result of this new evidence
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[ 448 U.S. Page 623]
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| | and the continued prodding of NIOSH, 1 Record, Ex. 2-7, OSHA did issue an emergency standard, effective May 21, 1977, reducing the benzene exposure limit from 10 ppm to 1 ppm, the ceiling for exposures of up to 10 minutes from 25 ppm to 5 ppm, and eliminating the authority for peak concentrations of 50 ppm. 42 Fed. Reg. 22516 (1977). In its explanation accompanying the emergency standard, OSHA stated that benzene had been shown to cause leukemia at exposures below 25 ppm and that, in light of its consultant's report, it was feasible to reduce the exposure limit to 1 ppm. Id., at 22517, 22521.
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| [28] | On May 19, 1977, the Court of Appeals for the Fifth Circuit entered a temporary restraining order preventing the emergency standard from taking effect. Thereafter, OSHA abandoned its efforts to make the emergency standard effective and instead issued a proposal for a permanent standard patterned almost entirely after the aborted emergency standard. Id., at 27452.
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| [29] | In its published statement giving notice of the proposed permanent standard, OSHA did not ask for comments as to whether or not benzene presented a significant health risk at exposures of 10 ppm or less. Rather, it asked for comments as to whether 1 ppm was the minimum feasible exposure limit.*fn17 Ibid. As OSHA's Deputy Director of Health Standards, Grover Wrenn, testified at the hearing, this formulation
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[ 448 U.S. Page 624]
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| | of the issue to be considered by the Agency was consistent with OSHA's general policy with respect to carcinogens.*fn18 Whenever a carcinogen is involved, OSHA will presume that no safe level of exposure exists in the absence of clear proof establishing such a level and will accordingly set the exposure limit at the lowest level feasible.*fn19 The proposed 1 ppm exposure
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[ 448 U.S. Page 625]
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| | limit in this case thus was established not on the basis of a proven hazard at 10 ppm, but rather on the basis of "OSHA's best judgment at the time of the proposal of the feasibility of compliance with the proposed standard by the [affected] industries." Tr. 30. Given OSHA's cancer policy, it was in fact irrelevant whether there was any evidence at all of a leukemia risk at 10 ppm. The important point was that there was no evidence that there was not some risk, however small, at that level. The fact that OSHA did not ask for comments on whether there was a safe level of exposure for benzene was indicative of its further view that a demonstration of such absolute safety simply could not be made.*fn20
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| [30] | Public hearings were held on the proposed standard, commencing on July 19, 1977. The final standard was issued on February 10, 1978. 29 CFR § 1910.1028 (1979).*fn21 In its final form, the benzene standard is designed to protect workers from whatever hazards are associated with low-level benzene
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[ 448 U.S. Page 626]
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| | exposures by requiring employers to monitor workplaces to determine the level of exposure, to provide medical examinations when the level rises above 0.5 ppm, and to institute whatever engineering or other controls are necessary to keep exposures at or below 1 ppm.
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| [31] | In the standard as originally proposed by OSHA, the employer's duty to monitor, keep records, and provide medical examinations arose whenever any benzene was present in a workplace covered by the rule.*fn22 Because benzene is omnipresent in small quantities, NIOSH and the President's Council on Wage and Price Stability recommended the use of an "action level" to trigger monitoring and medical examination requirements. Tr. 1030-1032; App. 121-133. OSHA accepted this recommendation, providing under the final standard that, if initial monitoring discloses benzene concentrations below 0.5 ppm averaged over an 8-hour work day, no further action is required unless there is a change in the company's practices.*fn23 If exposures are above the action
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[ 448 U.S. Page 627]
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| | level, but below the 1 ppm exposure limit, employers are required to monitor exposure levels on a quarterly basis and to provide semiannual medical examinations for their exposed employees. Neither the concept of an action level, nor the specific level selected by OSHA, is challenged in this proceeding.
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| [32] | Whenever initial monitoring indicates that employees are subject to airborne concentrations of benzene above 1 ppm averaged over an 8-hour workday, with a ceiling of 5 ppm for any 15-minute period, employers are required to modify their plants or institute work practice controls to reduce exposures within permissible limits. Consistent with OSHA's general policy, the regulation does not allow respirators to be used if engineering modifications are technologically feasible.*fn24 Employers in this category are also required to perform monthly monitoring so long as their workplaces remain above 1 ppm, provide semiannual medical examinations to exposed workers, post signs in and restrict access to "regulated areas" where the permissible exposure limit is exceeded, and conduct employee training programs where necessary.
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| [33] | The standard also places strict limits on exposure to liquid
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[ 448 U.S. Page 628]
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| | benzene. As originally framed, the standard totally prohibited any skin or eye contact with any liquid containing any benzene. Ultimately, after the standard was challenged, OSHA modified this prohibition by excluding liquids containing less than 0.5% benzene. After three years, that exclusion will be narrowed to liquids containing less than 0.1% benzene.
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| [34] | The permanent standard is expressly inapplicable to the storage, transportation, distribution, sale, or use of gasoline or other fuels subsequent to discharge from bulk terminals.*fn25 This exception is particularly significant in light of the fact that over 795,000 gas station employees, who are exposed to an average of 102,700 gallons of gasoline (containing up to 2% benzene) annually, are thus excluded from the protection of the standard.*fn26
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| [35] | As presently formulated, the benzene standard is an expensive way of providing some additional protection for a relatively small number of employees. According to OSHA's figures, the standard will require capital investments in engineering controls of approximately $266 million, first-year operating costs (for monitoring, medical testing, employee training, and respirators) of $187 million to $205 million and
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[ 448 U.S. Page 629]
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| | recurring annual costs of approximately $34 million.*fn27 43 Fed. Reg. 5934 (1978). The figures outlined in OSHA's explanation of the costs of compliance to various industries indicate that only 35,000 employees would gain any benefit from the regulation in terms of a reduction in their exposure to benzene.*fn28 Over two-thirds of these workers (24,450) are employed in the rubber-manufacturing industry. Compliance costs in that industry are estimated to be rather low with no capital costs and initial operating expenses estimated at only $34 million ($1,390 per employee); recurring annual costs would also be rather low, totaling less than $1 million. By contrast, the segment of the petroleum refining industry that produces benzene would be required to incur $24 million in capital costs and $600,000 in first-year operating expenses to provide additional protection for 300 workers ($82,000 per employee), while the petrochemical industry would be required to incur $20.9 million in capital costs and $1 million in initial operating expenses for the benefit of 552 employees ($39,675 per employee).*fn29 Id., at 5936-5938.
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[ 448 U.S. Page 630]
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| | Although OSHA did not quantify the benefits to each category of worker in terms of decreased exposure to benzene, it appears from the economic impact study done at OSHA's direction that those benefits may be relatively small. Thus, although the current exposure limit is 10 ppm, the actual exposures outlined in that study are often considerably lower. For example, for the period 1970-1975 the petrochemical industry reported that, out of a total of 496 employees exposed to benzene, only 53 were exposed to levels between 1 and 5 ppm and only 7 (all at the same plant) were exposed to between 5 and 10 ppm. 1 Economic Impact Statement, p. 4-6, Table 4-2, 11 Record, Ex. 5A, p. 4-6, Table 4-2. See also id., Tables 4.3-4.8 (indicating sample exposure levels in various industries).
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| [36] | II
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| [37] | The critical issue at this point in the litigation is whether the Court of Appeals was correct in refusing to enforce the 1 ppm exposure limit on the ground that it was not supported by appropriate findings.*fn30
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[ 448 U.S. Page 631]
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| | Any discussion of the 1 ppm exposure limit must, of course, begin with the Agency's rationale for imposing that limit.*fn31 The written explanation of the standard fills 184 pages of the printed appendix. Much of it is devoted to a discussion of the voluminous evidence of the adverse effects of exposure to benzene at levels of concentration well above 10 ppm. This discussion demonstrates that there is ample justification for regulating occupational exposure to benzene and that the prior limit of 10 ppm, with a ceiling of 25 ppm (or a peak of 50 ppm) was reasonable. It does not, however, provide direct support for the Agency's conclusion that the limit should be reduced from 10 ppm to 1 ppm.
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| [38] | The evidence in the administrative record of adverse effects of benzene exposure at 10 ppm is sketchy at best. OSHA noted that there was "no dispute" that certain nonmalignant blood disorders, evidenced by a reduction in the level of red or white cells or platelets in the blood, could result from exposures of 25-40 ppm. It then stated that several studies had indicated that relatively slight changes in normal blood values could result from exposures below 25 ppm and perhaps below 10 ppm. OSHA did not attempt to make any estimate based on these studies of how significant the risk of nonmalignant disease would be at exposures of 10 ppm or less.*fn32 Rather, it stated that because of the lack of data concerning the linkage between low-level exposures and blood abnormalities, it was impossible to construct a dose-response
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[ 448 U.S. Page 632]
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| | curve at this time.*fn33 OSHA did conclude, however, that the studies demonstrated that the current 10 ppm exposure limit was inadequate to ensure that no single worker would suffer a nonmalignant blood disorder as a result of benzene exposure. Noting that it is "customary" to set a permissible exposure limit by applying a safety factor of 10-100 to the lowest level at which adverse effects had been observed, the Agency stated that the evidence supported the conclusion that the limit should be set at a point "substantially less than 10 ppm" even if benzene's leukemic effects were not considered. 43 Fed. Reg. 5924-5925 (1978). OSHA did not state, however, that the nonmalignant effects of benzene exposure justified a reduction in the permissible exposure limit to 1 ppm.*fn34
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| [39] | OSHA also noted some studies indicating an increase in chromosomal aberrations in workers chronically exposed to
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[ 448 U.S. Page 633]
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| | concentrations of benzene "probably less than 25 ppm."*fn35 However, the Agency took no definitive position as to what these aberrations meant in terms of demonstrable health effects and stated that no quantitative dose-response relationship had yet been established. Under these circumstances, chromosomal effects were categorized by OSHA as an "adverse biological event of serious concern which may pose or reflect a potential health risk and as such, must be considered in the larger purview of adverse health effects associated with benzene. Id., at 5932-5934.
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| [40] | With respect to leukemia, evidence of an increased risk (i. e., a risk greater than that borne by the general population) due to benzene exposures at or below 10 ppm was even sketchier. Once OSHA acknowledged that the NIOSH study it had relied upon in promulgating the emergency standard did not support its earlier view that benzene had been shown to cause leukemia at concentrations below 25 ppm, see n. 12, supra, there was only one study that provided any evidence of such an increased risk. That study, conducted by the Dow Chemical Co., uncovered three leukemia deaths, versus 0.2 expected deaths, out of a population of 594 workers; it appeared that the three workers had never been exposed to more than 2 to 9 ppm of benzene. The authors of the study, however, concluded that it could not be viewed as proof of a relationship between low-level benzene exposure and leukemia because all three workers had probably been occupationally exposed to a number of other potentially carcinogenic chemicals at other points in their careers and because no leukemia deaths had been uncovered among workers who had been exposed to much higher levels of benzene. In its explanation of the permanent standard, OSHA stated that the possibility that these three leukemias had been caused by benzene exposure could not be
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[ 448 U.S. Page 634]
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| | ruled out and that the study, although not evidence of an increased risk of leukemia at 10 ppm, was therefore "consistent with the findings of many studies that there is an excess leukemia risk among benzene exposed employees." 43 Fed. Reg. 5928 (1978). The Agency made no finding that the Dow study, any other empirical evidence, or any opinion testimony demonstrated that exposure to benzene at or below the 10 ppm level had ever in fact caused leukemia. See 581 F.2d, at 503, where the Court of Appeals noted that OSHA was "unable to point to any empirical evidence documenting a leukemia risk at 10 ppm. . . ."
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| [41] | In the end OSHA's rationale for lowering the permissible exposure limit to 1 ppm was based, not on any finding that leukemia has ever been caused by exposure to 10 ppm of benzene and that it will not be caused by exposure to 1 ppm, but rather on a series of assumptions indicating that some leukemias might result from exposure to 10 ppm and that the number of cases might be reduced by reducing the exposure level to 1 ppm. In reaching that result, the Agency first unequivocally concluded that benzene is a human carcinogen.*fn36 Second, it concluded that industry had failed to prove that there is a safe threshold level of exposure to benzene below which no excess leukemia cases would occur. In reaching this conclusion OSHA rejected industry contentions that certain epidemiological studies indicating no excess risk of leukemia among workers exposed at levels below 10 ppm were sufficient to establish that the threshold level of safe exposure was at or above
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[ 448 U.S. Page 63510]
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| | ppm.*fn37 It also rejected an industry witness' testimony that a dose-response curve could be constructed on the basis of the reported epidemiological studies and that this curve indicated that reducing the permissible exposure limit from 10 to 1 ppm would prevent at most one leukemia and one other cancer death every six years.*fn38
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| [42] | Third, the Agency applied its standard policy with respect to carcinogens,*fn39 concluding that, in the absence of definitive
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[ 448 U.S. Page 636]
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| | proof of a safe level, it must be assumed that any level above zero presents some increased risk of cancer.*fn40 As the federal parties point out in their brief, there are a number of scientists and public health specialists who subscribe to this view, theorizing that a susceptible person may contract cancer from the absorption of even one molecule of a carcinogen like benzene. Brief for Federal Parties 18-19.*fn41
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[ 448 U.S. Page 637]
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| | Fourth, the Agency reiterated its view of the Act, stating that it was required by § 6 (b)(5) to set the standard either at the level that has been demonstrated to be safe or at the lowest level feasible, whichever is higher. If no safe level is established, as in this case, the Secretary's interpretation of the statute automatically leads to the selection of an exposure limit that is the lowest feasible.*fn42 Because of benzene's importance to the economy, no one has ever suggested that it would be feasible to eliminate its use entirely, or to try to limit exposures to the small amounts that are omnipresent. Rather, the Agency selected 1 ppm as a workable exposure level, see n. 14, supra, and then determined that compliance with that level was technologically feasible and that "the economic impact of . . . [compliance] will not be such as to threaten the financial welfare of the affected firms or the general economy." 43 Fed. Reg. 5939 (1978). It therefore held that 1 ppm was the minimum feasible exposure level within the meaning of § 6 (b)(5) of the Act.
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| [43] | Finally, although the Agency did not refer in its discussion of the pertinent legal authority to any duty to identify the anticipated benefits of the new standard, it did conclude that some benefits were likely to result from reducing the exposure limit from 10 ppm to 1 ppm. This conclusion was based, again, not on evidence, but rather on the assumption that the risk of leukemia will decrease as exposure levels decrease. Although the Agency had found it impossible to construct a dose-response curve that would predict with any accuracy the
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[ 448 U.S. Page 638]
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| | number of leukemias that could be expected to result from exposures at 10 ppm, at 1 ppm, or at any intermediate level, it nevertheless "determined that the benefits of the proposed standard are likely to be appreciable."*fn43 43 Fed. Reg. 5941 (1978). In light of the Agency's disavowal of any ability to determine the numbers of employees likely to be adversely affected by exposures of 10 ppm, the Court of Appeals held this finding to be unsupported by the record. 581 F.2d, at 503.*fn44
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| [44] | It is noteworthy that at no point in its lengthy explanation did the Agency quote or even cite § 3 (8) of the Act. It made no finding that any of the provisions of the new standard were "reasonably necessary or appropriate to provide safe or healthful employment and places of employment." Nor did it allude to the possibility that any such finding might have been appropriate.
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[ 448 U.S. Page 639]
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| | III
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| [45] | Our resolution of the issues in these cases turns, to a large extent, on the meaning of and the relationship between § 3 (8), which defines a health and safety standard as a standard that is "reasonably necessary and appropriate to provide safe or healthful employment," and § 6 (b)(5), which directs the Secretary in promulgating a health and safety standard for toxic materials to "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. . . ."
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| [46] | In the Government's view, § 3 (8)'s definition of the term "standard" has no legal significance or at best merely requires that a standard not be totally irrational. It takes the position that § 6 (b)(5) is controlling and that it requires OSHA to promulgate a standard that either gives an absolute assurance of safety for each and every worker or reduces exposures to the lowest level feasible. The Government interprets "feasible" as meaning technologically achievable at a cost that would not impair the viability of the industries subject to the regulation. The respondent industry representatives, on the other hand, argue that the Court of Appeals was correct in holding that the "reasonably necessary and appropriate" language of § 3 (8), along with the feasibility requirement of § 6 (b)(5), requires the Agency to quantify both the costs and the benefits of a proposed rule and to conclude that they are roughly commensurate.
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| [47] | In our view, it is not necessary to decide whether either the Government or industry is entirely correct. For we think it is clear that § 3 (8) does apply to all permanent standards promulgated under the Act and that it requires the Secretary, before issuing any standard, to determine that it is reasonably necessary and appropriate to remedy a significant risk of material health impairment. Only after the Secretary has made the threshold determination that such a risk exists
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[ 448 U.S. Page 640]
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| | with respect to a toxic substance, would it be necessary to decide whether § 6 (b)(5) requires him to select the most protective standard he can consistent with economic and technological feasibility, or whether, as respondents argue, the benefits of the regulation must be commensurate with the costs of its implementation. Because the Secretary did not make the required threshold finding in these cases, we have no occasion to determine whether costs must be weighed against benefits in an appropriate case.
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| [48] | A
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| [49] | Under the Government's view, § 3 (8), if it has any substantive content at all,*fn45 merely requires OSHA to issue standards
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[ 448 U.S. Page 641]
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| | that are reasonably calculated to produce a safer or more healthy work environment. Tr. of Oral Arg. 18, 20. Apart from this minimal requirement of rationality, the Government argues that § 3 (8) imposes no limits on the Agency's power, and thus would not prevent it from requiring employers to do whatever would be "reasonably necessary" to eliminate all risks of any harm from their workplaces.*fn46 With respect to toxic substances and harmful physical agents, the Government takes an even more extreme position. Relying on § 6 (b)(5)'s direction to set a standard "which most adequately assures . . . that no employee will suffer material impairment of health or functional capacity," the Government contends that the Secretary is required to impose standards that either guarantee workplaces that are free from any risk of material health impairment, however small, or that come as close as possible to doing so without ruining entire industries.
|
| [50] | If the purpose of the statute were to eliminate completely and with absolute certainty any risk of serious harm, we would agree that it would be proper for the Secretary to interpret §§ 3 (8) and 6 (b)(5) in this fashion. But we think it is clear that the statute was not designed to require employers to provide absolutely risk-free workplaces whenever it is technologically feasible to do so, so long as the cost is not great enough to destroy an entire industry. Rather, both the language and structure of the Act, as well as its legislative history, indicate that it was intended to require the elimination, as far as feasible, of significant risks of harm.
|
[ 448 U.S. Page 642]
|
| | B
|
| [51] | By empowering the Secretary to promulgate standards that are "reasonably necessary or appropriate to provide safe or healthful employment and places of employment," the Act implies that, before promulgating any standard, the Secretary must make a finding that the workplaces in question are not safe. But "safe" is not the equivalent of "risk-free." There are many activities that we engage in every day -- such as driving a car or even breathing city air -- that entail some risk of accident or material health impairment; nevertheless, few people would consider these activities "unsafe." Similarly, a workplace can hardly be considered "unsafe" unless it threatens the workers with a significant risk of harm.
|
| [52] | Therefore, before he can promulgate any permanent health or safety standard, the Secretary is required to make a threshold finding that a place of employment is unsafe -- in the sense that significant risks are present and can be eliminated or lessened by a change in practices. This requirement applies to permanent standards promulgated pursuant to § 6 (b)(5), as well as to other types of permanent standards. For there is no reason why § 3 (8)'s definition of a standard should not be deemed incorporated by reference into § 6 (b)(5). The standards promulgated pursuant to § 6 (b)(5) are just one species of the genus of standards governed by the basic requirement. That section repeatedly uses the term "standard" without suggesting any exception from, or qualification of, the general definition; on the contrary, it directs the Secretary to select "the standard" -- that is to say, one of various possible alternatives that satisfy the basic definition in § 3 (8) -- that is most protective.*fn47 Moreover, requiring the
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[ 448 U.S. Page 643]
|
| | Secretary to make a threshold finding of significant risk is consistent with the scope of the regulatory power granted to him by § 6 (b)(5), which empowers the Secretary to promulgate standards, not for chemicals and physical agents generally, but for "toxic materials" and "harmful physical agents."*fn48
|
| [53] | This interpretation of §§ 3 (8) and 6 (b)(5) is supported by the other provisions of the Act. Thus, for example, § 6 (g) provides in part that
|
| [54] | "[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,
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[ 448 U.S. Page 644]
|
| | crafts, occupations, businesses, workplaces or work environments."
|
| [55] | The Government has expressly acknowledged that this section requires the Secretary to undertake some cost-benefit analysis before he promulgates any standard, requiring the elimination of the most serious hazards first.*fn49 If such an analysis must precede the promulgation of any standard, it seems manifest that Congress intended, at a bare minimum, that the Secretary find a significant risk of harm and therefore a probability of significant benefits before establishing a new standard.
|
| [56] | Section 6 (b)(8) lends additional support to this analysis. That subsection requires that, when the Secretary substantially alters an existing consensus standard, he must explain how the new rule will "better effectuate" the purposes of the Act.*fn50 If this requirement was intended to be more than a meaningless formality, it must be read to impose upon the Secretary the duty to find that an existing national consensus standard is not adequate to protect workers from a continuing and significant risk of harm. Thus, in this case, the Secretary was required to find that exposures at the current permissible
|
[ 448 U.S. Page 645]
|
| | exposure level of 10 ppm present a significant risk of harm in the workplace.
|
| [57] | In the absence of a clear mandate in the Act, it is unreasonable to assume that Congress intended to give the Secretary the unprecedented power over American industry that would result from the Government's view of §§ 3 (8) and 6 (b)(5), coupled with OSHA's cancer policy. Expert testimony that a substance is probably a human carcinogen -- either because it has caused cancer in animals or because individuals have contracted cancer following extremely high exposures -- would justify the conclusion that the substance poses some risk of serious harm no matter how minute the exposure and no matter how many experts testified that they regarded the risk as insignificant. That conclusion would in turn justify pervasive regulation limited only by the constraint of feasibility. In light of the fact that there are literally thousands of substances used in the workplace that have been identified as carcinogens or suspect carcinogens, the Government's theory would give OSHA power to impose enormous costs that might produce little, if any, discernible benefit.*fn51
|
[ 448 U.S. Page 646]
|
| | If the Government were correct in arguing that neither § 3 (8) nor § 6 (b)(5) requires that the risk from a toxic substance be quantified sufficiently to enable the Secretary to characterize it as significant in an understandable way, the statute would make such a "sweeping delegation of legislative power" that it might be unconstitutional under the Court's reasoning in A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 539, and Panama Refining Co. v. Ryan, 293 U.S. 388. A construction of the statute that avoids this kind of open-ended grant should certainly be favored.
|
| [58] | C
|
| [59] | The legislative history also supports the conclusion that Congress was concerned, not with absolute safety, but with the elimination of significant harm. The examples of industrial hazards referred to in the Committee hearings and debates all involved situations in which the risk was unquestionably significant. For example, the Senate Committee on Labor and Public Welfare noted that byssinosis, a disabling lung disease caused by breathing cotton dust, affected as many as 30% of the workers in carding or spinning rooms in some American cotton mills and that as many as 100,000 active or retired workers were then suffering from the disease. It also noted that statistics indicated that 20,000 out of 50,000 workers who had performed insulation work were likely to die of asbestosis, lung cancer, or mesothelyioma as a result of breathing asbestos fibers. Another example given of an occupational health hazard that would be controlled by the Act was betanaphthylamine, a "chemical so toxic that any exposure at all is likely to cause the development of bladder cancer over a period of years." S. Rep. No. 91-1282, pp. 3-4 (1970); Legislative History of the Occupational Safety and Health Act of 1970 (Committee Print compiled for the Senate Committee on Labor and Public Welfare), pp. 143-144 (1971) (hereafter Leg. Hist.).
|
| [60] | Moreover, Congress specifically amended § 6 (b)(5) to make
|
[ 448 U.S. Page 647]
|
| | it perfectly clear that it does not require the Secretary to promulgate standards that would assure an absolutely risk-free workplace. Section 6 (b)(5) of the initial Committee bill provided that
|
| [61] | "[the] Secretary, in promulgating standards under this subsection, shall set the standard which most adequately and feasibly assures, on the basis of the best available evidence, that no employee will suffer any impairment of health or functional capacity, or diminished life expectancy even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life." (Emphasis supplied.) S. 2193, 91st Cong., 2d Sess., p. 39 (1970), Leg. Hist. 242.
|
| [62] | On the floor of the Senate, Senator Dominick questioned the wisdom of this provision, stating:
|
| [63] | "How in the world are we ever going to live up to that? What are we going to do about a place in Florida where mosquitoes are getting at the employee -- perish the thought that there may be mosquitoes in Florida? But there are black flies in Minnesota and Wisconsin. Are we going to say that if employees get bitten by those for the rest of their lives they will not have been done any harm at all? Probably they will not be, but do we know?" 116 Cong. Rec. 36522 (1970), Leg. Hist. 345.
|
| [64] | He then offered an amendment deleting the entire subsection.*fn52
|
[ 448 U.S. Page 648]
|
| | After discussions with the sponsors of the Committee bill, Senator Dominick revised his amendment. Instead of deleting the first sentence of § 6 (b)(5) entirely, his new amendment limited the application of that subsection to toxic materials and harmful physical agents and changed "any" impairment of health to "material" impairment.*fn53 In discussing this change, Senator Dominick noted that the Committee's bill read as if a standard had to "assure that, no matter what anybody was doing, the standard would protect him for the rest of his life against any foreseeable hazard." Such an "unrealistic standard," he stated, had not been intended by the sponsors of the bill. Rather, he explained that the intention of the bill, as implemented by the amendment, was to require the Secretary
|
| [65] | "to use his best efforts to promulgate the best available standards, and in so doing, . . . he should take into account that anyone working in toxic agents and physical
|
[ 448 U.S. Page 649]
|
| | agents which might be harmful may be subjected to such conditions for the rest of his working life, so that we can get at something which might not be toxic now, if he works in it a short time, but if he works in it the rest of his life might be very dangerous; and we want to make sure that such things are taken into consideration in establishing standards." 116 Cong. Rec., at 37622-37623, Leg. Hist. 502-503.*fn54
|
| [66] | Senator Williams, one of the sponsors of the Committee bill, agreed with the interpretation, and the amendment was adopted.
|
| [67] | In their reply brief the federal parties argue that the Dominick amendment simply means that the Secretary is not required to eliminate threats of insignificant harm; they argue that § 6 (b)(5) still requires the Secretary to set standards that ensure that not even one employee will be subject to any risk of serious harm -- no matter how small that risk may be.*fn55
|
[ 448 U.S. Page 650]
|
| | This interpretation is at odds with Congress' express recognition of the futility of trying to make all workplaces totally risk-free. Moreover, not even OSHA follows this interpretation of § 6 (b)(5) to its logical conclusion. Thus, if OSHA is correct that the only no-risk level for leukemia due to benzene exposure is zero and if its interpretation of § 6 (b)(5) is correct, OSHA should have set the exposure limit as close to zero as feasible. But OSHA did not go about its task in that way. Rather, it began with a 1 ppm level, selected at least in part to ensure that employers would not be required to eliminate benzene concentrations that were little greater than the so-called "background" exposures experienced by the population at large. See n. 14, supra. Then, despite suggestions by some labor unions that it was feasible for at least some industries to reduce exposures to well below 1 ppm,*fn56 OSHA decided to apply the same limit to all, largely as a matter of administrative convenience. 43 Fed. Reg. 5947 (1978).
|
| [68] | OSHA also deviated from its own interpretation of § 6 (b)(5) in adopting an action level of 0.5 ppm below which monitoring and medical examinations are not required. In light of OSHA's cancer policy, it must have assumed that some employees would be at risk because of exposures below 0.5 ppm. These employees would thus presumably benefit from medical examinations, which might uncover any benzene-related problems. OSHA's consultant advised the Agency that it was technologically and economically feasible to require that such examinations be provided. Nevertheless, OSHA adopted an action level, largely because the insignificant benefits
|
[ 448 U.S. Page 651]
|
| | of giving such examinations and performing the necessary monitoring did not justify the substantial cost.*fn57
|
| [69] | OSHA's concessions to practicality in beginning with a 1 ppm exposure limit and using an action level concept implicitly adopt an interpretation of the statute as not requiring regulation of insignificant risks.*fn58 It is entirely consistent with this interpretation to hold that the Act also requires the Agency to limit its endeavors in the standard-setting area to eliminating significant risks of harm.
|
| [70] | Finally, with respect to the legislative history, it is important to note that Congress repeatedly expressed its concern about allowing the Secretary to have too much power over American industry. Thus, Congress refused to give the Secretary the power to shut down plants unilaterally because of an imminent danger, see Whirlpool Corp. v. Marshall, 445 U.S. 1, and narrowly circumscribed the Secretary's power to issue temporary emergency standards.*fn59 This effort by
|
[ 448 U.S. Page 652]
|
| | Congress to limit the Secretary's power is not consistent with a view that the mere possibility that some employee somewhere in the country may confront some risk of cancer is a sufficient basis for the exercise of the Secretary's power to require the expenditure of hundreds of millions of dollars to minimize that risk.
|
| [71] | D
|
| [72] | Given the conclusion that the Act empowers the Secretary to promulgate health and safety standards only where a significant risk of harm exists, the critical issue becomes how to define and allocate the burden of proving the significance of the risk in a case such as this, where scientific knowledge is imperfect and the precise quantification of risks is therefore impossible. The Agency's position is that there is substantial evidence in the record to support its conclusion that there is no absolutely safe level for a carcinogen and that, therefore, the burden is properly on industry to prove, apparently beyond a shadow of a doubt, that there is a safe level for benzene exposure. The Agency argues that, because of the uncertainties in this area, any other approach would render it helpless, forcing it to wait for the leukemia deaths that it believes are likely to occur*fn60 before taking any regulatory action.
|
[ 448 U.S. Page 653]
|
| | We disagree. As we read the statute, the burden was on the Agency to show, on the basis of substantial evidence, that it is at least more likely than not that long-term exposure to 10 ppm of benzene presents a significant risk of material health impairment. Ordinarily, it is the proponent of a rule or order who has the burden of proof in administrative proceedings. See 5 U. S. C. § 556 (d). In some cases involving toxic substances, Congress has shifted the burden of proving that a particular substance is safe onto the party opposing the proposed rule.*fn61 The fact that Congress did not follow this course in enacting the Occupational Safety and Health Act indicates that it intended the Agency to bear the normal burden of establishing the need for a proposed standard.
|
| [73] | In this case OSHA did not even attempt to carry its burden of proof. The closest it came to making a finding that benzene presented a significant risk of harm in the workplace was its statement that the benefits to be derived from lowering the permissible exposure level from 10 to 1 ppm were "likely" to be "appreciable." The Court of Appeals held that this finding was not supported by substantial evidence. Of greater importance, even if it were supported by substantial evidence, such a finding would not be sufficient to satisfy the Agency's obligations under the Act.
|
| [74] | The inadequacy of the Agency's findings can perhaps be
|
[ 448 U.S. Page 654]
|
| | illustrated best by its rejection of industry testimony that a dose-response curve can be formulated on the basis of current epidemiological evidence and that, even under the most conservative extrapolation theory, current exposure levels would cause at most two deaths out of a population of about 30,000 workers every six years. See n. 38, supra. In rejecting this testimony, OSHA made the following statement:
|
| [75] | "In the face of the record evidence of numerous actual deaths attributable to benzene-induced leukemia and other fatal blood diseases, OSHA is unwilling to rely on the hypothesis that at most two cancers every six years would be prevented by the proposed standard. By way of example, the Infante study disclosed seven excess leukemia deaths in a population of about 600 people over a 25-year period. While the Infante study involved higher exposures then those currently encountered, the incidence rates found by Infante, together with the numerous other cases reported in the literature of benzene leukemia and other fatal blood diseases, make it difficult for OSHA to rely on the [witness'] hypothesis to assure the statutorily mandated protection of employees. In any event, due to the fact that there is no safe level of exposure to benzene and that it is impossible to precisely quantify the anticipated benefits, OSHA must select the level of exposure which is most protective of exposed employees." 43 Fed. Reg. 5941 (1978).
|
| [76] | There are three possible interpretations of OSHA's stated reason for rejecting the witness' testimony: (1) OSHA considered it probable that a greater number of lives would be saved by lowering the standard from 10 ppm; (2) OSHA thought that saving two lives every six years in a work force of 30,000 persons is a significant savings that makes it reasonable and appropriate to adopt a new standard; or (3) even if the small number is not significant and even if the savings may be even smaller, the Agency nevertheless believed it had
|
[ 448 U.S. Page 655]
|
| | a statutory duty to select the level of exposure that is most protective of the exposed employees if it is economically and technologically feasible to do so. Even if the Secretary did not intend to rely entirely on this third theory, his construction of the statute would make it proper for him to do so. Moreover, he made no express findings of fact that would support his 1 ppm standard on any less drastic theory. Under these circumstances, we can hardly agree with the Government that OSHA discharged its duty under the Act.
|
| [77] | Contrary to the Government's contentions, imposing a burden on the Agency of demonstrating a significant risk of harm will not strip it of its ability to regulate carcinogens, nor will it require the Agency to wait for deaths to occur before taking any action. First, the requirement that a "significant" risk be identified is not a mathematical straitjacket. It is the Agency's responsibility to determine, in the first instance, what it considers to be a "significant" risk. Some risks are plainly acceptable and others are plainly unacceptable. If, for example, the odds are one in a billion that a person will die from cancer by taking a drink of chlorinated water, the risk clearly could not be considered significant. On the other hand, if the odds are one in a thousand that regular inhalation of gasoline vapors that are 2% benzene will be fatal, a reasonable person might well consider the risk significant and take appropriate steps to decrease or eliminate it. Although the Agency has no duty to calculate the exact probability of harm, it does have an obligation to find that a significant risk is present before it can characterize a place of employment as "unsafe."*fn62
|
[ 448 U.S. Page 656]
|
| | Second, OSHA is not required to support its finding that a significant risk exists with anything approaching scientific certainty. Although the Agency's findings must be supported by substantial evidence, 29 U. S. C. § 655 (f), § 6 (b)(5) specifically allows the Secretary to regulate on the basis of the "best available evidence." As several Courts of Appeals have held, this provision requires a reviewing court to give OSHA some leeway where its findings must be made on the frontiers of scientific knowledge. See Industrial Union Dept., AFL-CIO v. Hodgson, 162 U. S. App. D.C. 331, 340, 499 F.2d 467, 476 (1974); Society of the Plastics Industry, Inc. v. OSHA, 509 F.2d 1301, 1308 (CA2 1975), cert. denied, 421 U.S. 992. Thus, so long as they are supported by a body of reputable scientific thought, the Agency is free to use conservative assumptions in interpreting the data with respect to carcinogens, risking error on the side of overprotection rather than underprotection.*fn63
|
| [78] | Finally, the record in this case and OSHA's own rulings on other carcinogens indicate that there are a number of ways in which the Agency can make a rational judgment about the
|
[ 448 U.S. Page 657]
|
| | relative significance of the risks associated with exposure to a particular carcinogen.*fn64
|
| [79] | It should also be noted that, in setting a permissible exposure level in reliance on less-than-perfect methods, OSHA would have the benefit of a backstop in the form of monitoring
|
[ 448 U.S. Page 658]
|
| | and medical testing. Thus, if OSHA properly determined that the permissible exposure limit should be set at 5 ppm, it could still require monitoring and medical testing for employees exposed to lower levels.*fn65 By doing so, it could keep a constant check on the validity of the assumptions made in developing the permissible exposure limit, giving it a sound evidentiary basis for decreasing the limit if it was initially set too high.*fn66 Moreover, in this way it could ensure that workers who were unusually susceptible to benzene could be removed from exposure before they had suffered any permanent damage.*fn67
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| [80] | E
|
| [81] | Because our review of these cases has involved a more detailed examination of the record than is customary, it must
|
[ 448 U.S. Page 659]
|
| | be emphasized that we have neither made any factual determinations of our own, nor have we rejected any factual findings made by the Secretary. We express no opinion on what factual findings this record might support, either on the basis of empirical evidence or on the basis of expert testimony; nor do we express any opinion on the more difficult question of what factual determinations would warrant a conclusion that significant risks are present which make promulgation of a new standard reasonably necessary or appropriate. The standard must, of course, be supported by the findings actually made by the Secretary, not merely by findings that we believe he might have made.
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| [82] | In this case the record makes it perfectly clear that the Secretary relied squarely on a special policy for carcinogens that imposed the burden on industry of proving the existence of a safe level of exposure, thereby avoiding the Secretary's threshold responsibility of establishing the need for more stringent standards. In so interpreting his statutory authority, the Secretary exceeded his power.
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| [83] | IV
|
| [84] | Throughout the administrative proceedings, the dermal contact issue received relatively little attention. In its proposed rule OSHA recommended a total ban on skin and eye contact with liquid benzene on the basis of its policy that "in dealing with a carcinogen, all potential routes of exposure (i. e., inhalation, ingestion, and skin absorption) [should] be limited to the extent feasible." 43 Fed. Reg. 5948 (1978). There was little opposition to this requirement at the hearing on the proposed rule, apparently because the proposed rule also excluded from both the permissible exposure level and the dermal contact ban work operations involving liquid mixtures containing 1% (and after one year, 0.1%) or less benzene.
|
| [85] | In its final standard, however, OSHA eliminated the percentage exclusion for liquid benzene, on the ground that there was no predictable correlation between the percentage of benzene
|
[ 448 U.S. Page 660]
|
| | in a liquid and the airborne exposure arising from it. See n. 22, supra. Although the extent to which liquid benzene is absorbed through the skin is concededly unknown, OSHA also refused to exempt any liquids, no matter how little benzene they contained, from the ban on dermal contact. In support of this position it stated that there was no evidence to "suggest that the absorption rate depends on the amount of benzene present in the liquid." 43 Fed. Reg. 5948-5949 (1978).
|
| [86] | After the permanent standard was promulgated, OSHA received a number of requests from various industries that the percentage exclusion for liquids containing small amounts of benzene be reinstated. Those concerned with airborne exposures argued that they should not be required to monitor workplaces simply because they handled petroleum-based products in which benzene is an unavoidable contaminant. Others concerned with the dermal contact ban made similar arguments. In particular, tire manufacturers argued that it was impossible for them to comply with the ban because gloves cannot be worn during certain tire-building operations in which solvents are used and solvents containing absolutely no benzene are not commercially available.
|
| [87] | Because of these requests, OSHA held a new series of hearings and promulgated an amendment to the rule, reinstating the percentage exclusion, but lowering it from the proposed 1% to 0.5%. The Agency did, however, provide for a 3-year grace period before the exclusion dropped to 0.1%, rather than the one year that had originally been proposed. In explaining its amendment, OSHA reiterated its policy with respect to carcinogens, stating that, because there is no absolutely safe level for any type of exposure, exposures by whatever route must be limited to the extent feasible. For airborne exposures, a zero permissible exposure limit had not been feasible. However, in most industries a ban on any dermal contact was feasible since compliance could be achieved simply by the use of protective clothing, such as impermeable
|
[ 448 U.S. Page 661]
|
| | gloves. The Agency recognized that the dermal contact ban could present a problem for tire manufacturers, but stated that the percentage exclusion would alleviate the problem, because solvents containing 0.5% or less benzene were available in sufficient quantities. Although it noted that solvents containing 0.1% or less benzene were not then available in quantity, the Agency stated that a 3-year grace period would be sufficient to "allow time for increased production of solvents containing lower amounts of benzene and for development and evaluation of alternative methods of compliance with the standard's dermal provision." Id., at 27968-27969.
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| [88] | The Court of Appeals struck down the dermal contact prohibition on two grounds. First, it held that the record did not support a finding that the ban would result in quantifiable benefits in terms of a reduced leukemia risk; therefore, it was not "reasonably necessary" within the meaning of § 3 (8) of the Act. Second, the court held that the Agency's conclusion that benzene may be absorbed through the skin was not based on the best available evidence as required by § 6 (b)(5). 581 F.2d, at 505-506. On the second ground, the court noted that the evidence on the issue of absorption of benzene through the skin was equivocal, with some studies indicating that it could be absorbed and some indicating that it could not. All of these studies were relatively old and the only expert who had testified on the issue stated that a simple test was now available to determine, with a great deal of accuracy, whether and to what extent absorption will result. In light of § 6 (b)(5), which requires the Agency to promulgate standards on the basis of the "best available evidence" and "the latest available scientific data in the field," the court held that where there is uncontradicted testimony that a simple test will resolve the issue, the Agency is required to acquire that information before "promulgating regulations which would require an established industry to change long-followed work processes that are not demonstrably unsafe." 581 F.2d, at 508.
|
[ 448 U.S. Page 662]
|
| | While the court below may have been correct in holding that, under the peculiar circumstances of this case, OSHA was required to obtain more information, there is no need for us to reach that issue. For, in order to justify a ban on dermal contact, the Agency must find that such a ban is "reasonably necessary and appropriate" to remove a significant risk of harm from such contact. The Agency did not make such a finding, but rather acted on the basis of the absolute, no-risk policy that it applies to carcinogens. Indeed, on this issue the Agency's position is even more untenable, inasmuch as it was required to assume not only that benzene in small doses is a carcinogen, but also that it can be absorbed through the skin in sufficient amounts to present a carcinogenic risk. These assumptions are not a proper substitute for the findings of a significant risk of harm required by the Act.
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| [89] | The judgment of the Court of Appeals remanding the petition for review to the Secretary for further proceedings is affirmed.
|
| [90] | It is so ordered.
|
| [91] | Disposition
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| [92] | 581 F.2d 493, affirmed.
|
| [93] | MR. CHIEF JUSTICE BURGER, concurring.
|
| [94] | These cases press upon the Court difficult unanswered questions on the frontiers of science and medicine. The statute and the legislative history give ambiguous signals as to how the Secretary is directed to operate in this area. The opinion by MR. JUSTICE STEVENS takes on a difficult task to decode the message of the statute as to guidelines for administrative action.
|
| [95] | To comply with statutory requirements, the Secretary must bear the burden of "finding" that a proposed health and safety standard is "reasonably necessary or appropriate to provide safe or healthful employment and places of employment." This policy judgment entails the subsidiary finding that the pre-existing standard presents a "significant risk" of material health impairment for a worker who spends his entire employment life in a working environment where exposure
|
[ 448 U.S. Page 663]
|
| | remains at maximum permissible levels. The Secretary's factual finding of "risk" must be "quantified sufficiently to enable the Secretary to characterize it as significant in an understandable way." Ante, at 646. Precisely what this means is difficult to say. But because these mandated findings were not made by the Secretary, I agree that the 1 ppm benzene standard must be invalidated. However, I would stress the differing functions of the courts and the administrative agency with respect to such health and safety regulation.
|
| [96] | The Congress is the ultimate regulator, and the narrow function of the courts is to discern the meaning of the statute and the implementing regulations with the objective of ensuring that in promulgating health and safety standards the Secretary "has given reasoned consideration to each of the pertinent factors" and has complied with statutory commands. Permian Basin Area Rate Cases, 390 U.S. 747, 792 (1968). Our holding that the Secretary must retrace his steps with greater care and consideration is not to be taken in derogation of the scope of legitimate agency discretion. When the facts and arguments have been presented and duly considered, the Secretary must make a policy judgment as to whether a specific risk of health impairment is significant in terms of the policy objectives of the statute. When he acts in this capacity, pursuant to the legislative authority delegated by Congress, he exercises the prerogatives of the legislature -- to focus on only one aspect of a larger problem, or to promulgate regulations that, to some, may appear as imprudent policy or inefficient allocation of resources. The judicial function does not extend to substantive revision of regulatory policy. That function lies elsewhere -- in Congressional and Executive oversight or amendatory legislation -- although to be sure the boundaries are often ill-defined and indistinct.
|
| [97] | Nevertheless, when discharging his duties under the statute, the Secretary is well admonished to remember that a heavy responsibility burdens his authority. Inherent in this statutory scheme is authority to refrain from regulation of
|
[ 448 U.S. Page 664]
|
| | insignificant or de minimis risks. See Alabama Power Co. v. Costle, 204 U. S. App. D.C. 51, 88-89, 636 F.2d 323, 360-361 (1979) (opinion of Leventhal, J.). When the administrative record reveals only scant or minimal risk of material health impairment, responsible administration calls for avoidance of extravagant, comprehensive regulation. Perfect safety is a chimera; regulation must not strangle human activity in the search for the impossible.
|
| [98] | MR. JUSTICE POWELL, concurring in part and concurring in the judgment.
|
| [99] | I join Parts I, II, III-A, III-B, III-C, and III-E of the plurality opinion.*fn1 The Occupational Safety and Health Administration relied in large part on its "carcinogen policy" -- which had not been adopted formally -- in promulgating the benzene exposure and dermal contact regulation at issue in these cases.*fn2 For the reasons stated by the plurality, I agree that §§ 6 (b)(5) and 3 (8) of the Occupational Safety and Health Act of 1970, 29 U. S. C. §§ 655 (b)(5) and 652 (8), must be read together. They require OSHA to make a threshold finding that proposed occupational health standards are reasonably necessary to provide safe workplaces. When OSHA acts to reduce existing national consensus standards,
|
[ 448 U.S. Page 665]
|
| | therefore, it must find that (i) currently permissible exposure levels create a significant risk of material health impairment; and (ii) a reduction of those levels would significantly reduce the hazard.
|
| [100] | Although I would not rule out the possibility that the necessary findings could rest in part on generic policies properly adopted by OSHA, see McGarity, Substantive and Procedural Discretion in Administrative Resolution of Science Policy Questions: Regulating Carcinogens in EPA and OSHA, 67 Geo. L. J. 729, 754-759 (1979), no properly supported agency policies are before us in these cases.*fn3 I therefore agree with the plurality that the regulation is invalid to the extent it rests upon the assumption that exposure to known carcinogens always should be reduced to a level proved to be safe or, if no such level is found, to the lowest level that the affected industry can achieve with available technology.
|
| [101] | I
|
| [102] | If the disputed regulation were based exclusively on this "carcinogen policy," I also would agree that we need not consider whether the Act requires OSHA to determine that the benefits of a proposed standard are reasonably related to the costs of compliance. Ante, at 615. As the Court of Appeals for the Fifth Circuit recognized, however, OSHA takes the "fall-back position" that its regulation is justified by specific findings based upon the voluminous evidentiary record compiled in this case. American Petroleum Institute v. OSHA, 581 F.2d 493, 503. OSHA found, for example, that the number
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[ 448 U.S. Page 666]
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| | of cancers prevented by reducing permissible exposure levels from 10 ppm to 1 ppm "may be appreciable," that "the benefits of the proposed standard are likely to be appreciable," and that the "substantial costs [of the new standard] are justified in light of the hazards." 43 Fed. Reg. 5940-5941 (1978). Thus, OSHA found -- at least generally -- that the hazards of benzene exposure at currently permissible levels are serious enough to justify an expenditure of hundreds of millions of dollars. For me, that finding necessarily subsumes the conclusion that the health risk is "significant." If OSHA's conclusion is supported by substantial evidence, the threshold requirement discussed in the plurality opinion would be satisfied.
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| [103] | As I read its opinion, the plurality does not consider whether the agency's findings are supported by substantial evidence. The Court of Appeals found them insufficient because OSHA failed "to estimate the extent of expected benefits. . . ." 581 F.2d, at 504. That court apparently would have required OSHA to supply a specific numerical estimate of benefits derived through mathematical techniques for "risk quantification" or "cost-effectiveness analysis." Id., at 504, n. 23; see id., at 504-505. I do not agree with the Court of Appeals' conclusion that the statute requires quantification of risk in every case.
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| [104] | The statutory preference for the "best available evidence," 29 U. S. C. § 655 (b)(5), implies that OSHA must use the best known techniques for the accurate estimation of risks and benefits when such techniques are available. But neither the statute nor the legislative history suggests that OSHA's hands are tied when reasonable quantification cannot be accomplished by any known methods. See post, at 693 (MARSHALL, J., dissenting). In this litigation, OSHA found that "it is impossible to precisely quantify the anticipated benefits. . . ." 43 Fed. Reg. 5941 (1978). If this finding is supported by substantial evidence, the statute does not prevent the Secretary from finding a significant health hazard on the
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[ 448 U.S. Page 667]
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| | basis of the weight of expert testimony and opinion. I do not understand the plurality to hold otherwise. See ante, at 662.
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| [105] | For the foregoing reasons, I would not hold that "OSHA did not even attempt to carry its burden of proof" on the threshold question whether exposure to benzene at 10 ppm presents a significant risk to human health. Ante, at 653. In my view, the question is whether OSHA successfully carried its burden on the basis of record evidence. That question in turn reduces to two principal issues. First, is there substantial evidence supporting OSHA's determination that available quantification techniques are too imprecise to permit a reasonable numerical estimate of risks? If not, then OSHA has failed to show that its regulation rests on the "best available evidence." Second, is OSHA's finding of significant risks at current exposure levels supported by substantial evidence? If not, then OSHA has failed to show that the new regulation is reasonably necessary to provide safe and healthful workplaces.
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| [106] | II
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| [107] | Although I regard the question as close, I do not disagree with the plurality's view that OSHA has failed, on this record, to carry its burden of proof on the threshold issues summarized above. But even if one assumes that OSHA properly met this burden, see post, at 697-701, 713-714 (MARSHALL, J., dissenting), I conclude that the statute also requires the agency to determine that the economic effects of its standard bear a reasonable relationship to the expected benefits. An occupational health standard is neither "reasonably necessary" nor "feasible," as required by statute, if it calls for expenditures wholly disproportionate to the expected health and safety benefits.
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| [108] | OSHA contends that § 6 (b)(5) not only permits but actually requires it to promulgate standards that reduce health risks without regard to economic effects, unless those effects
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[ 448 U.S. Page 668]
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| | would cause widespread dislocation throughout an entire industry.*fn4 Under the threshold test adopted by the plurality today, this authority will exist only with respect to "significant" risks. But the plurality does not reject OSHA's claim that it must reduce such risks without considering economic consequences less serious than massive dislocation. In my view, that claim is untenable.
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| [109] | Although one might wish that Congress had spoken with greater clarity, the legislative history and purposes of the statute do not support OSHA's interpretation of the Act.*fn5
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[ 448 U.S. Page 669]
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| | It is simply unreasonable to believe that Congress intended OSHA to pursue the desirable goal of risk-free workplaces to the extent that the economic viability of particular industries -- or significant segments thereof -- is threatened. As the plurality observes, OSHA itself has not chosen to carry out such a self-defeating policy in all instances. Ante, at 650. If it did, OSHA regulations would impair the ability of American industries to compete effectively with foreign businesses and to provide employment for American workers.*fn6
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| [110] | I therefore would not lightly assume that Congress intended OSHA to require reduction of health risks found to be significant whenever it also finds that the affected industry
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[ 448 U.S. Page 670]
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| | can bear the costs. See n. 4, supra. Perhaps more significantly, however, OSHA's interpretation of § 6 (b)(5) would force it to regulate in a manner inconsistent with the important health and safety purposes of the legislation we construe today. Thousands of toxic substances present risks that fairly could be characterized as "significant." Cf. ante, at 645, n. 51. Even if OSHA succeeded in selecting the gravest risks for earliest regulation, a standard-setting process that ignored economic considerations would result in a serious misallocation of resources and a lower effective level of safety than could be achieved under standards set with reference to the comparative benefits available at a lower cost.*fn7 I would not attribute such an irrational intention to Congress.
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| [111] | In these cases, OSHA did find that the "substantial costs" of the benzene regulations are justified. See supra, at 665-666. But the record before us contains neither adequate documentation of this conclusion, nor any evidence that OSHA weighed the relevant considerations. The agency simply announced its finding of cost-justification without explaining the method by which it determines that the benefits justify the costs and their economic effects. No rational system of regulation can permit its administrators to make policy judgments without explaining how their decisions effectuate the purposes of the governing law, and nothing in the statute authorizes such laxity in these cases.*fn8 Since neither the airborne
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[ 448 U.S. Page 671]
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| | concentration standard nor the dermal contact standard for exposure to benzene satisfies the requirements of the governing statute, I join the Court's judgment affirming the judgment of the Court of Appeals.
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| [112] | MR. JUSTICE REHNQUIST, concurring in the judgment.
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| [113] | The statutory provision at the center of the present controversy, § 6 (b)(5) of the Occupational Safety and Health Act of 1970, states, in relevant part, that the Secretary of Labor
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| [114] | ". . . in promulgating standards dealing with toxic materials or harmful physical agents . . . 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." 84 Stat. 1594, 29 U. S. C. § 655 (b)(5) (emphasis added).
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| [115] | According to the Secretary, who is one of the petitioners herein, § 6 (b)(5) imposes upon him an absolute duty, in regulating harmful substances like benzene for which no safe level is known, to set the standard for permissible exposure at the lowest level that "can be achieved at bearable cost with available technology." Brief for Federal Parties 57. While the Secretary does not attempt to refine the concept of "bearable cost," he apparently believes that a proposed standard is economically feasible so long as its impact "will not be such as to threaten the financial welfare of the affected firms or the general economy." 43 Fed. Reg. 5939 (1978).
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| [116] | Respondents reply, and the lower court agreed, that § 6 (b)(5) must be read in light of another provision in the
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[ 448 U.S. Page 672]
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| | same Act, § 3 (8), which defines an "occupational health and safety standard" as
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| [117] | ". . . 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." 84 Stat. 1591, 29 U. S. C. § 652 (8).
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| [118] | According to respondents, § 6 (b)(5), as tempered by § 3 (8), requires the Secretary to demonstrate that any particular health standard is justifiable on the basis of a rough balancing of costs and benefits.
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| [119] | In considering these alternative interpretations, my colleagues manifest a good deal of uncertainty, and ultimately divide over whether the Secretary produced sufficient evidence that the proposed standard for benzene will result in any appreciable benefits at all. This uncertainty, I would suggest, is eminently justified, since I believe that this litigation presents the Court with what has to be one of the most difficult issues that could confront a decisionmaker: whether the statistical possibility of future deaths should ever be disregarded in light of the economic costs of preventing those deaths. I would also suggest that the widely varying positions advanced in the briefs of the parties and in the opinions of MR. JUSTICE STEVENS, THE CHIEF JUSTICE, MR. JUSTICE POWELL, and MR. JUSTICE MARSHALL demonstrate, perhaps better than any other fact, that Congress, the governmental body best suited and most obligated to make the choice confronting us in this litigation, has improperly delegated that choice to the Secretary of Labor and, derivatively, to this Court.
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| [120] | I
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| [121] | In his Second Treatise of Civil Government, published in 1690, John Locke wrote that "[the] power of the legislative, being derived from the people by a positive voluntary grant and institution, can be no other than what that positive
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[ 448 U.S. Page 673]
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| | grant conveyed, which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws and place it in other hands."1[a] Two hundred years later, this Court expressly recognized the existence of and the necessity for limits on Congress' ability to delegate its authority to representatives of the Executive Branch: "That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution. " Field v. Clark, 143 U.S. 649, 692 (1892).2[a]
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| [122] | The rule against delegation of legislative power is not, however, so cardinal a principle as to allow for no exception. The Framers of the Constitution were practical statesmen, who saw that the doctrine of separation of powers was a two-sided coin. James Madison, in Federalist Paper No. 48, for example, recognized that while the division of authority among the various branches of government was a useful principle, "the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained." The Federalist No. 48, p. 308 (H. Lodge ed. 1888).
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| [123] | This Court also has recognized that a hermetic sealing-off of the three branches of government from one another could easily frustrate the establishment of a National Government
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[ 448 U.S. Page 674]
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| | capable of effectively exercising the substantive powers granted to the various branches by the Constitution. Mr. Chief Justice Taft, writing for the Court in J. W. Hampton & Co. v. United States, 276 U.S. 394 (1928), noted the practicalities of the balance that has to be struck:
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| [124] | "[The] rule is that in the actual administration of the government Congress or the Legislature should exercise the legislative power, the President or the State executive, the Governor, the executive power, and the Courts or the judiciary the judicial power, and in carrying out that constitutional division into three branches it is a breach of the National fundamental law if Congress gives up its legislative power and transfers it to the President, or to the Judicial branch, or if by law it attempts to invest itself or its members with either executive power or judicial power. This is not to say that the three branches are not co-ordinate parts of one government and that each in the field of its duties may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch. In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental co-ordination." Id., at 406.
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| [125] | During the third and fourth decades of this century, this Court within a relatively short period of time struck down several Acts of Congress on the grounds that they exceeded the authority of Congress under the Commerce Clause or under the non-delegation principle of separation of powers, and at the same time struck down state statutes because they violated "substantive" due process or interfered with interstate commerce. See generally R. Jackson, The Struggle for Judicial Supremacy 48-123 (1949). When many of these decisions were later overruled, the principle that Congress
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[ 448 U.S. Page 675]
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| | could not simply transfer its legislative authority to the Executive fell under a cloud. Yet in my opinion decisions such as Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), suffer from none of the excesses of judicial policymaking that plagued some of the other decisions of that era. The many later decisions that have upheld congressional delegations of authority to the Executive Branch have done so largely on the theory that Congress may wish to exercise its authority in a particular field, but because the field is sufficiently technical, the ground to be covered sufficiently large, and the Members of Congress themselves not necessarily expert in the area in which they choose to legislate, the most that may be asked under the separation-of-powers doctrine is that Congress lay down the general policy and standards that animate the law, leaving the agency to refine those standards, "fill in the blanks," or apply the standards to particular cases. These decisions, to my mind, simply illustrate the above-quoted principle stated more than 50 years ago by Mr. Chief Justice Taft that delegations of legislative authority must be judged "according to common sense and the inherent necessities of the governmental co-ordination."
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| [126] | Viewing the legislation at issue here in light of these principles, I believe that it fails to pass muster. Read literally, the relevant portion of § 6 (b)(5) is completely precatory, admonishing the Secretary to adopt the most protective standard if he can, but excusing him from that duty if he cannot. In the case of a hazardous substance for which a "safe" level is either unknown or impractical, the language of § 6 (b)(5) gives the Secretary absolutely no indication where on the continuum of relative safety he should draw his line. Especially in light of the importance of the interests at stake, I have no doubt that the provision at issue, standing alone, would violate the doctrine against uncanalized delegations of legislative power. For me the remaining question, then, is whether additional standards are ascertainable from the legislative history or statutory context of § 6 (b)(5) or, if not, whether
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[ 448 U.S. Page 676]
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| | such a standardless delegation was justifiable in light of the "inherent necessities" of the situation.
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| [127] | II
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| [128] | One of the primary sources looked to by this Court in adding gloss to an otherwise broad grant of legislative authority is the legislative history of the statute in question. The opinions of MR. JUSTICE STEVENS and MR. JUSTICE MARSHALL, however, give little more than a tip of the hat to the legislative origins of § 6 (b)(5). Such treatment is perhaps understandable, since the legislative history of that section, far from shedding light on what important policy choices Congress was making in the statute, gives one the feeling of viewing the congressional purpose "by the dawn's early light."
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| [129] | The precursor of § 6(b)(5) was placed in the Occupational Safety and Health Act of 1970 while that bill was pending in the House Committee on Education and Labor. At that time, the section read:
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| [130] | "The Secretary, in promulgating standards under this subsection, shall set the standard which most adequately assures, on the basis of the best available professional evidence, that no employee will suffer any impairment of health, or functional capacity, or diminished life expectancy even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life." § 7 (a)(4), H. R. 16785, 91st Cong., 2d Sess., 49 (1970), Legislative History of the Occupational Safety and Health Act of 1970 (Committee Print compiled for the Senate Committee on Labor and Public Welfare), p. 943 (1971) (hereinafter Leg. Hist.).
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| [131] | Three aspects of this original proposal are particularly significant. First, and perhaps most importantly, as originally introduced the provision contained no feasibility limitation, providing instead that the Secretary "shall set the standard which most adequately assures" that no employee will suffer
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[ 448 U.S. Page 677]
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| | harm. Second, it would have required the Secretary to protect employees from "any" impairment of health or functional capacity. Third, on its face, although perhaps not in its intent, the provision applied to both health and safety standards promulgated under the Act.3[a]
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| [132] | There can be little doubt that, at this point in its journey through Congress, § 6 (b)(5) would have required the Secretary, in regulating toxic substances, to set the permissible level of exposure at a safe level or, if no safe level was known, at zero. When the Senate Committee on Labor and Public Welfare considered a provision identical in almost all respects to the House version, however, Senator Javits objected that the provision in question "might be interpreted to require absolute health and safety in all cases, regardless of feasibility. . . ." S. Rep. No. 91-1282, p. 58 (1970), Leg. Hist. 197. See also 116 Cong. Rec. 37327 (1970), Leg. Hist. 418. The Committee therefore amended the bill to provide that the Secretary "shall set the standard which most adequately and feasibly" assured that no employee would suffer any impairment of health. S. 2193, 91st Cong., 2d Sess., p. 39 (1970), Leg. Hist. 242 (emphasis added). The only additional explanation for this change appeared in the Senate Report accompanying the bill to the Senate floor. There, the Committee explained:
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| [133] | "[Standards] promulgated under section 6 (b) shall represent feasible requirements, which, where appropriate, shall be based on research, experiments, demonstrations, past experience, and the latest available scientific
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[ 448 U.S. Page 678]
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| | data. Such standards should be directed at assuring, so far as possible, that no employee will suffer impaired health or functional capacity or diminished life expectancy, by reason of exposure to the hazard involved, even though such exposure may be over the period of his entire working life." S. Rep. No. 91-1282, p. 7 (1970), Leg. Hist. 147 (emphasis added).
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| [134] | Despite Senator Javits' inclusion of the words "and feasibly" in the provision, participants in the floor debate immediately characterized § 6 (b)(5) as requiring the Secretary "to establish a utopia free from any hazards" and to "assure that there will not be any risk at all." 116 Cong. Rec. 37614 (1970), Leg. Hist. 480-481 (remarks of Sen. Dominick). Senator Saxbe stated:
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| [135] | "When we come to saying that an employer must guarantee that such an employee is protected from any possible harm, I think it will be one of the most difficult areas we are going to have to ascertain. . . .
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| [136] | "I believe the terms that we are passing back and forth are going to have to be identified." 116 Cong. Rec., at 26522, Leg. Hist. 345.
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| [137] | In response to these concerns, Senator Dominick introduced a substitute for the proposed provision, deleting the sentence at issue here entirely. He explained that his amendment would delete
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| [138] | "the requirement in section 6 (b)(5) that the Secretary will establish occupational safety and health standards which most adequately and feasibly assure to the extent possible that no employee will suffer any impairment of health or functional capacity, or diminished life expectancy even if the employee has regular exposure to the hazard dealt with by the standard for the period of his working life.
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| [139] | "This requirement is inherently confusing and unrealistic. It could be read to require the Secretary to ban all
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[ 448 U.S. Page 679]
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| | occupations in which there remains some risk of injury, impaired health, or life expectancy. In the case of all occupations, it will be impossible to eliminate all risks to safety and health. Thus, the present criteria could, if literally applied, close every business in this nation. In addition, in many cases, the standard which might most 'adequately' and 'feasibly' assure the elimination of the danger would be the prohibition of the occupation itself.
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| [140] | "If the provision is intended as no more than an admonition to the Secretary to do his duty, it seems unnecessary and could, if deemed advisable be included in the legislative history." (Emphasis in original.) 116 Cong. Rec., at 36530, Leg. Hist. 367.
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| [141] | Eventually, Senator Dominick and his supporters settled for the present language of § 6 (b)(5). This agreement resulted in three changes from the original version of the provision as amended by Senator Javits. First, the provision was altered to state explicitly that it applied only to standards for "toxic materials or harmful physical agents," in apparent contrast with safety standards. Second, the Secretary was no longer admonished to protect employees from "any" impairment of their health, but rather only from "material" impairments. Third, and most importantly for our purposes, the phrase "most adequately and feasibly assures" was revamped to read "most adequately assures, to the extent feasible."
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| [142] | We have been presented with a number of different interpretations of this shift. According to the Secretary, Senator Dominick recognized that he could not delete the seemingly absolute requirements of § 6 (b)(5) entirely, and instead agreed to limit its application to toxic materials or harmful physical agents and to specify that the Secretary was only to protect employees from material impairment of their health. Significantly, the Secretary asserts that his mandate to set such standards at the safest level technologically and economically
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[ 448 U.S. Page 680]
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| | achievable remained unchanged by the Dominick amendment. According to the Secretary, the change in language from "most adequately and feasibly assures" to "most adequately assures, to the extent feasible," represented only a slight shift in emphasis, perhaps suggesting "a preference for health protection over cost." App. to Brief for Federal Parties 7a, n. 2. See also Brief for Federal Parties 59.
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| [143] | MR. JUSTICE MARSHALL reads this history quite differently. In his view, the version of § 6 (b)(5) that reached the Senate floor did not "clearly [embody] the feasibility requirement" and thus was soundly criticized as being unrealistic. See post, at 693. It was only as a result of the floor amendments, which replaced "most adequately and feasibly assures" with "most adequately assures, to the extent feasible," that the Secretary clearly was authorized to reject a standard if it proved technologically or economically infeasible. See also post, at 710, and 720-721, n. 34.
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| [144] | Respondents cast yet a third light on these events, focusing upon a few places in the legislative history where the words "feasible" and "reasonable" were used more or less interchangeably. See S. Rep. No. 91-2193, pp. 8-10 (1969), Leg. Hist. 38-40; 115 Cong. Rec. 22517 (1969) (Sen. Javits). It is their contention that, when Congress said "feasible," it meant cost-justified. According to respondents, who agree in this regard with the Secretary, the meaning of the feasibility requirement did not change substantially between the version that left the Senate Committee on Labor and Public Welfare and the version that was ultimately adopted as part of the Act.
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| [145] | To my mind, there are several lessons to be gleaned from this somewhat cryptic legislative history. First, as pointed out by MR. JUSTICE MARSHALL, to the extent that Senator Javits, Senator Dominick, and other Members were worried about imposing upon the Secretary the impossible burden of assuring absolute safety, they did not view § 3 (8) of the Act
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[ 448 U.S. Page 681]
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| | as a limitation on that duty. I therefore find it difficult to accept the conclusion of the lower court, as embellished by respondents, that § 3 (8) acts as a general check upon the Secretary's duty under § 6 (b)(5) to adopt the most protective standard feasible.
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| [146] | Second, and more importantly, I believe that the legislative history demonstrates that the feasibility requirement, as employed in § 6 (b)(5), is a legislative mirage, appearing to some Members but not to others, and assuming any form desired by the beholder. I am unable to accept MR. JUSTICE MARSHALL's argument that, by changing the phrasing of § 6 (b)(5) from "most adequately and feasibly assures" to "most adequately assures, to the extent feasible," the Senate injected into that section something that was not already there.4[a] If I am correct in this regard, then the amendment introduced by Senator Javits to relieve the Secretary of the duty to create a risk-free workplace left Senator Dominick free to object to the amended provision on the same grounds. Perhaps Senator Dominick himself offered the aptest description of the feasibility requirement as "no more than an admonition to the Secretary to do his duty. . . ." 116 Cong. Rec. 36530 (1970); Leg. Hist. 367.
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| [147] | In sum, the legislative history contains nothing to indicate that the language "to the extent feasible" does anything other
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[ 448 U.S. Page 682]
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| | than render what had been a clear, if somewhat unrealistic, standard largely, if not entirely, precatory. There is certainly nothing to indicate that these words, as used in § 6 (b)(5), are limited to technological and economic feasibility. When Congress has wanted to limit the concept of feasibility in this fashion, it has said so, as is evidenced in a statute enacted the same week as the provision at issue here.5[a] I also question whether the Secretary wants to assume the duties such an interpretation would impose upon him. In these cases, for example, the Secretary actually declined to adopt a standard lower than 1 ppm for some industries, not because it was economically or technologically infeasible, but rather because "different levels for different industries would result in serious administrative difficulties." 43 Fed. Reg. 5947 (1978). See also ante, at 650 (plurality opinion). If § 6 (b)(5) authorizes the Secretary to reject a more protective standard in the interest of administrative feasibility, I have little doubt that he could reject such standards for any reason whatsoever, including even political feasibility.
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| [148] | III
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| [149] | In prior cases this Court has looked to sources other than the legislative history to breathe life into otherwise vague delegations of legislative power. In American Power & Light Co. v. SEC, 329 U.S. 90, 104 (1946), for example, this Court concluded that certain seemingly vague delegations "[derived] much meaningful content from the purpose of the Act, its factual background and the statutory context in which they appear." Here, however, there is little or nothing in the
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[ 448 U.S. Page 683]
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| | remaining provisions of the Occupational Safety and Health Act to provide specificity to the feasibility criterion in § 6 (b)(5). It may be true, as suggested by MR. JUSTICE MARSHALL, that the Act as a whole expresses a distinct preference for safety over dollars. But that expression of preference, as I read it, falls far short of the proposition that the Secretary must eliminate marginal or insignificant risks of material harm right down to an industry's breaking point.
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| [150] | Nor are these cases like Lichter v. United States, 334 U.S. 742, 783 (1948), where this Court upheld delegation of authority to recapture "excessive profits" in light of a pre-existing administrative practice. Here, the Secretary's approach to toxic substances like benzene could not have predated the enactment of § 6(b)(5) itself. Moreover, there are indications that the postenactment administrative practice has been less than uniform. For example, the Occupational Safety and Health Review Commission (OSHRC), the body charged with adjudicating citations issued by the Secretary under the Act, apparently does not agree with the definition of "feasibility," advanced in these cases by the Secretary. In Continental Can Co., 4 OSHC 1541, 1976-1977 OSHD para. 21,009 (1976), the Commission reasoned:
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| [151] | "Clearly, employers have finite resources available for use to abate health hazards. And just as clearly if they are to be made to spend without limit for abatement of this hazard their financial ability to abate other hazards, including life threatening hazards, is reduced." Id., at 1547, 1976-1977 OSHD, p. 25,256.
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| [152] | Furthermore, the record in these cases contains at least one indication that the Secretary himself was, at one time, quite uncertain what limits § 6 (b)(5) placed upon him. In announcing the proposed 1 ppm standard and discussing its economic ramifications, the Secretary explained that "[while] the precise meaning of feasibility is not clear from the Act, it is
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[ 448 U.S. Page 684]
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| | OSHA's view that the term may include the economic ramifications of requirements imposed by standards." 43 Fed. Reg. 5934 (1978). This candid and tentative statement falls far short of the Secretary's present position that economic and technological considerati | |