Saturday, January 18, 2014

The Benzene Case [Industrial Un. Dept., AFL-CIO v. Am. Petroleum Inst.] case brief

The Benzene Case [Industrial Un. Dept., AFL-CIO v. Am. Petroleum Inst.] case brief summary
U.S. (1980)

FACTS
  • OSHA lowered the allowed limit of benzene in the workplace from 10 ppm to 1 ppm. 
  • There was some evidence that risk existed between 1 and 10 ppm, though it wasn’t systematic. 
  • OSHA shifted burden to industry and required them to prove that anything about 1 was safe. 
  • OSHA has a generic policy where “carcinogens” are considered no-threshold substances where no safe exposure level can be determined and the substances must be regulated at the lowest technologically-feasible level that will not cripple the industry. 
  • It went to 1 ppm because they believed that was the lowest feasible solution that would not destroy the industry. 
RULES
Statute: OSH Act:
  • § 3(8) – “occupational safety and health standard’ means a standard which requires conditions ... reasonably necessary or appropriate to provide safe or healthful employment and places of employment.”
  • § 6(b)(5) – “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. . . .” 
DISPOSITION
Remanded back to OSHA.

ANALYSIS
  • OSHA provided no indication that it made a finding, based upon scientific evidence, that an exposure level above 1ppm posed a “significant risk.” (no dose-response evaluation). 
  • Finding a significant risk is a threshold determination which needs to be made in order to proceed to application of § 6(b)(5). 
NOTES
  • The plurality relied upon § 3(8), however the dissent relied upon § 6(b)(5). Section 3(8) is a definitional section and more generic, while § 6(b)(5) is a substantive standard related to the particular type of substance at issue. 
  • Judge Rehnquist concurred, holding the statute unconstitutional on non-delegation grounds. If this position were taken seriously, most environmental regulation would be unconstitutional. \
  • No precedential effect since plurality and not majority. However, cases after Benzene were able to survive Court scrutiny because OSHA quantified the risk with a dose-response evaluation. For example, a similar regulation was upheld in Public Citizen Health Research Group v. Tyson, 796 F.2d 1479 (D.C. Cir. 1986), p78, because OSHA used a dose-response curve to make its decision.
  • Although the Court required a seemingly-scientific rationale for Agency action, many policy decisions affect the risk assessment.

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