Under the Occupational Safety and Health Act (29 USCS 651 et seq.), the Secretary of Labor, in carrying out his authority to promulgate occupational safety and health standards dealing with toxic materials or harmful agents under 6(b)(5) of the Act (29 USCS 655(b)(5)), which requires the Secretary 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," is not prohibited from taking regulatory action where a health risk that he addresses cannot be quantified on the basis of known methods or current techniques.
The Occupational Safety and Health Act of 1970 (Act) delegates broad authority to the Secretary of Labor (Secretary) to promulgate standards to ensure safe and healthful working conditions for the Nation's workers (the Occupational Safety and Health Administration (OSHA) as the agency responsible for carrying out this authority. Acting on the stipulations of certain provisions of the Act, the Secretary promulgated a standard reducing the permissible exposure limit on airborne concentrations of benzene from the consensus standard of 10 parts benzene per million parts of air (10 ppm) to 1 ppm, and prohibiting dermal contact with solutions containing benzene after having determined that there is a causal connection between benzene (a toxic substance used in manufacturing such products as motor fuels, solvents, detergents, and pesticides) and leukemia (a cancer of the white blood cells). On pre-enforcement review, the Court of Appeals held the standard invalid because it was based on findings unsupported by the administrative record. The court concluded that OSHA had exceeded its standard-setting authority because it had not been shown that the 1 ppm exposure limit was "reasonably necessary or appropriate to provide safe and healthful employment" as required by § 3 (8), and that § 6 (b)(5) did not give OSHA the unbridled discretion to adopt standards designed to create absolutely risk-free workplaces regardless of cost.
Did the Court of Appeals err in holding that the standard promulgated by the Secretary of Labor was invalid?
The Court affirmed the decision of the court of appeals remanding the petition for review to the Secretary of Labor for further proceedings. The Court held that it was clear that 29 U.S.C.S. § 652(8) required application to all permanent standards promulgated under the Occupational Safety and Health Act of 1970 and that it required the Secretary, before issuing any standard, to determine that it was reasonably necessary and appropriate to remedy a significant risk of material health impairment. Because the Secretary did not make the required threshold finding, the Court had no occasion to determine whether costs had to be weighed against benefits in an appropriate case. According to the Court, the record made 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 and, in doing so, the Secretary exceeded his power.