448 U.S. 607, 686–87 (1980)
The Occupational Safety and Health Act of 1970 directed the Secretary of Labor to develop standards ensuring safe and healthful working conditions for every working man and woman.1 Benzene, a colorless aromatic liquid produced in quantities of approximately 11 billion pounds in 1976, was used in motor fuels, solvents, detergents, and other organic chemicals.2 Over one million workers faced additional low-level exposures through employment in petroleum refining, petrochemical processing, rubber manufacturing, and gasoline service stations.3
In 1971 the Secretary adopted a national consensus standard limiting airborne benzene to 10 parts per million as an eight-hour time-weighted average with a 25 ppm ceiling for ten-minute periods.4 Between 1974 and 1977 additional epidemiological studies linked benzene to leukemia.5 NIOSH conducted an interim study of two Pliofilm plants in Ohio that reported at least a fivefold increase in expected leukemia incidence among workers exposed from 1940 to 1949.6 Other studies, including one by Dow Chemical, identified leukemia deaths among workers whose exposures had not exceeded 2 to 9 ppm.7
In October 1976 NIOSH recommended an emergency temporary standard of 1 ppm.8 The Fifth Circuit temporarily restrained the emergency standard.9 OSHA then proposed and, after hearings that began in July 1977, promulgated a permanent standard in February 1978.10 The permanent standard reduced the permissible exposure limit to 1 ppm, imposed a 5 ppm ceiling for any fifteen-minute period, required initial monitoring and semiannual medical examinations when exposures exceeded 0.5 ppm, mandated engineering controls rather than respirators where feasible, and prohibited skin or eye contact with liquids containing more than 0.5 percent benzene after a three-year phase-in.11
The standard exempted storage, transportation, distribution, sale, or use of gasoline after discharge from bulk terminals.12 OSHA estimated capital costs of approximately $266 million, first-year operating costs of $187 million to $205 million, and recurring annual costs of $34 million, with the largest per-employee expenditures falling on the petroleum refining and petrochemical segments.13 On pre-enforcement review under 29 U.S.C. § 655(f), the United States Court of Appeals for the Fifth Circuit held the regulation invalid in 1978.14 The Supreme Court reviewed the Fifth Circuit judgment.15
Whether the Secretary of Labor must determine as a threshold matter that a toxic substance poses a significant health risk in the workplace before promulgating a standard that lowers the permissible exposure limit?16
Section 3(8) of the Occupational Safety and Health Act defines an occupational safety and health standard as one that is reasonably necessary or appropriate to provide safe or healthful employment and places of employment.17 This definition requires the Secretary to make a threshold finding that significant risks are present and can be eliminated or lessened by a change in practices before issuing any permanent standard, including those under section 6(b)(5).18
Yes. The Secretary failed to make the required threshold finding that benzene at 10 ppm presented a significant risk of material health impairment.19 The administrative record contained only sketchy evidence of adverse effects at that level.20 OSHA instead relied on its general carcinogen policy that any exposure above zero presents some risk.21
The Fifth Circuit correctly held that this approach exceeded the statutory authority because the Agency never determined that the workplaces were unsafe in the sense of presenting significant risks that the 1 ppm limit would address.22
The Secretary exceeded his authority under the Act by promulgating the benzene standard without the threshold finding of significant risk required by section 3(8).23
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Chief Justice Burger concurred that the Secretary must bear the burden of finding a significant risk quantified sufficiently to characterize it as such.24 He emphasized that the mandated findings were not made here.25 Burger stressed the differing functions of courts and agencies in health and safety regulation.26
He noted that the Secretary exercises legislative prerogatives when making policy judgments on risk significance.27 Burger warned against extravagant regulation of minimal risks.28 In his view, when the administrative record reveals only scant or minimal risk of material health impairment, responsible administration calls for avoidance of expansive regulation.
Justice Powell joined the plurality on the threshold requirement.29 He agreed that the regulation is invalid to the extent it rests on the assumption that exposure to known carcinogens always should be reduced to the lowest feasible level.30
Powell stressed that the Secretary must make a threshold finding that proposed occupational health standards are reasonably necessary to provide safe workspaces.31
Whether section 3(8) of the Occupational Safety and Health Act requires the Secretary to find that a proposed standard is reasonably necessary or appropriate to provide safe or healthful employment before it may be issued under section 6(b)(5)?32
Section 3(8) applies to all permanent standards, including those promulgated under section 6(b)(5) for toxic materials.33 The definition of a standard is incorporated by reference. There is no exception or qualification in section 6(b)(5).34 The Secretary must therefore determine that the standard is reasonably necessary or appropriate before selecting the most protective feasible option.35
Yes. Section 6(b)(5) repeatedly uses the term standard without suggesting any exception from the general definition in section 3(8).36 The requirement of a threshold finding of significant risk is consistent with the scope of regulatory power granted for toxic materials and harmful physical agents.37 OSHA's explanation of the permanent benzene standard never quoted or cited section 3(8).38
It made no finding that the provisions were reasonably necessary or appropriate.39 Instead it proceeded directly to the lowest feasible level under its carcinogen policy.40
Section 3(8) applies to standards under section 6(b)(5) and requires the threshold finding of significant risk before the Secretary may issue a permanent standard.41
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Justice Powell agreed that sections 6(b)(5) and 3(8) must be read together.42 They require OSHA to make a threshold finding that proposed occupational health standards are reasonably necessary to provide safe workspaces.43 When OSHA acts to reduce existing national consensus standards, it must find that currently permissible exposure levels create a significant risk of material health impairment and that a reduction would significantly reduce the hazard.44
Powell joined the plurality on the threshold requirement and stressed the need for the Agency to support its conclusions with substantial evidence.45
Whether the Secretary may set an exposure limit for benzene at the lowest technologically and economically feasible level without first establishing that the benefits of the reduction bear a reasonable relationship to the costs?46
The Secretary did not make the threshold finding of significant risk required by section 3(8).47 It is therefore unnecessary to decide whether section 6(b)(5) requires the Secretary to select the most protective standard consistent with feasibility or whether benefits must be commensurate with costs.48
No. The Court expressly declined to resolve whether costs must be weighed against benefits because the absence of the threshold significant-risk finding made that question premature.49 OSHA had estimated capital costs of $266 million and recurring costs of $34 million.50 It had not shown that the reduction from 10 ppm to 1 ppm addressed a significant risk.51 Any cost-benefit discussion was therefore unnecessary at this stage.52
The Court does not reach the question of cost-benefit balancing because the Secretary failed to make the required threshold finding of significant risk.53
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Justice Rehnquist concurred in the judgment on the ground that section 6(b)(5) constitutes an invalid delegation of legislative authority.54 The feasibility language provides no intelligible principle to guide the Secretary's choice between statistical lives and industrial resources when no safe level is known.55 Rehnquist concluded that Congress had improperly delegated a fundamental policy choice to the Secretary and derivatively to the Court.56
He emphasized that the decision whether the law of diminishing returns should have any place in the regulation of toxic substances is quintessentially one of legislative policy.57
Whether the Secretary may promulgate a permanent standard for a known carcinogen on the assumption that any exposure above zero presents some increased risk when existing studies provide no dose-response data at the levels being regulated?58
The Secretary bears the burden of showing on the basis of substantial evidence that it is more likely than not that long-term exposure at the current level presents a significant risk of material health impairment.59 The Agency may not shift that burden to industry by assuming no safe level exists and regulating to the lowest feasible exposure without first establishing the significance of the risk at the levels being regulated.
No. OSHA rejected industry testimony attempting to construct a dose-response curve showing at most two leukemia deaths every six years at current levels.60 It instead applied its policy that any exposure above zero presents some risk for carcinogens.61 It did so without making findings that the risk at 10 ppm was significant or that the 1 ppm limit would produce appreciable benefits.62 The NIOSH and Dow studies provided evidence only at higher exposures.63
The Agency acknowledged it could not quantify the number of lives saved, yet proceeded on the assumption that benefits were likely to be appreciable.64
The Secretary may not promulgate the standard on the basis of the no-safe-level assumption without first establishing a significant risk at the regulated levels.65
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Joined by Justices Brennan, White, And Blackmun
Justice Marshall dissented on the ground that the Act requires the Secretary to set the standard that most adequately assures no employee will suffer material impairment to the extent feasible on the best available evidence.66 The Secretary's conclusion that benefits may be appreciable satisfied that mandate even without precise quantification because the risk at issue was not shown to be insignificant.67 Marshall argued that the plurality's threshold finding requirement has no basis in the Act and places the burden of uncertainty on workers.68
He stressed that the existing evidence may frequently be inadequate to enable the Secretary to make the threshold finding of significance that the Court requires today.69