IN A DECISION THAT WILL FORCE the revocation of many workplace health standards and the rolling back of others to 1970 levels, a federal appeals court struck down Labor Department regulations limiting workers' exposure to over 400 toxic substances. The three-judge panel of the 11th Circuit Court of Appeals in Atlanta ruled on July 7 that the standards-setting process used by the Labor Department's Occupational Safety and Health Administration (OSHA) to establish limits for the chemicals was so flawed that all the standards must be thrown out.
The court granted OSHA a stay which allows the standards to remain in place until August 27. The Labor Department is reviewing the ruling to decide if it will appeal the decision. OSHA officials have declined to comment on the court decision.
Downgrading the upgrade
The court ruling wipes out air-contamination regulations issued by OSHA in 1989. The regulations cover 428 toxic chemicals ranging from carbon dioxide to wood dust to perchloroethylene, a fluid used to dry-clean clothes. OSHA estimates that the regulations mandated workplace protection from air contaminants for 21 million workers. The court ruling is also likely to affect a follow-on standard proposed in June by OSHA which would expand exposure limits to about 600 additional chemicals used in the construction, maritime and agricultural industries, which had not been covered by the original regulations.
The 1989 set of standards represents OSHA's first attempt to upgrade air toxic exposure limits since the agency was created in 1971. It was also the first time the agency pursued a regulatory approach of considering hazards on a general basis. All other OSHA health and safety standards - for example, standards on coke oven emissions, lead, asbestos and benzene - were issued on a case-by-case basis.
Labor leaders and health and safety advocates have found the case-by-case standard-setting process inadequate. Testifying before the Senate Committee on Labor and Human Resources in October 1991, Thomas Donahue, Secretary-Treasurer of the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO) called the process "frustrating and painfully slow."
Donahue said, "In its 20-year history, OSHA had promulgated just 21 major health standards [now 24] ... Permissible exposure limits for toxic air contaminants have been revised only once. It often takes years for OSHA to even acknowledge petitions or recommendations for standards. Once the agency decides to act, the standard setting process usually takes five years."
OSHA's flaw
OSHA officials viewed the agency's new regulatory approach as a means of addressing some of these problems in standard-setting. However, health and safety advocates complain that the across-the-board approach is also flawed. Peg Seminario, director of the AFL-CIO's Department of Occupational Safety and Health, says OSHA "treated all chemicals the same. It gave each the same emphasis and energy regardless of toxicity, levels of exposure [and] the number of people exposed." Seminario says that the generic approach resulted in many air contaminant standards that were too lenient.
Business groups, especially the dry-cleaning and chemical industries, challenged the standards for being too stringent, however. Both the AFL-CIO and industry groups had brought lawsuits challenging the basis for about 25 standards, with the labor federation charging that the regulations were not strict enough and industry arguing that the standards were so tough as to be economically infeasible.
The AFL-CIO and industry court cases challenged only specific regulations, but the Atlanta court threw out the entire set of standards, ruling that OSHA failed to make the scientific case for each individual standard issued. The court cited OSHA's exposure limits for perchloroethylene as an example of an arbitrarily set standard, arguing that the agency's lack of scientific analysis of the substance's health effects made it impossible for the court to determine if the limit of 25 parts per million was set too high as labor groups claimed, or too low as the dry-cleaning industry insisted.
Seminario says that while the AFL-CIO believed that some standards were improperly based, the labor organization did not endorse scrapping all the regulations. "In some ways the court agreed with us," Seminario says. "The court's reasoning was not incorrect, but the outcome was extreme and unfortunate."
Seminario says the court should have upheld standards for substances that were not controversial. "The decision is disturbing," she says. "It vacated the standard for hundreds of toxic substances whether or not they were of concern." Seminario thinks that the Labor Department should appeal the decision which wipes out regulations across the board, but should still allow for challenges of particular standards. "Let the unchallenged ones stay in effect, let the challenged ones go back to OSHA," she says.
A call for reform
Seminario argues that the court decision highlights the need for legislative reform of the 1970 Occupational Safety and Health Act.
The AFL-CIO supports a bill currently pending in the Senate, introduced by Edward Kennedy, D-Massachusetts, and Howard Metzenbaum, D-Ohio, which would expand workers' rights and strengthen enforcement of health and safety regulations. Among other provisions, the reform bill requires OSHA to upgrade air contaminant exposure standards every three years, based on recommendations by the National Institute of Occupational Safety and Health, an agency of the Department of Health and Human Services. The bill also establishes timeframes for responding to petitions and recommendations and makes OSHA decisions not to act on these recommendations reviewable in court.
The bill, however, does not directly address the issues raised by the court's recent decision. Seminario says that the AFL-CIO is currently trying to decide what sort of legislative reform "makes sense" in light of the unexpected court ruling.