United States Court of Appeals,
Fifth Circuit.
No. 94-41097.
ASBESTOS INFORMATION ASSOCIATION/NORTH AMERICA, Petitioner,
v.
Robert B. REICH, Secretary of Labor, Respondent.
July 24, 1997.
On Petition for Review of a Final Rule Promulgated by the
Occupational Safety and Health Administration.
Before WIENER and PARKER, Circuit Judges, and LITTLE, District
Judge.*
ROBERT M. PARKER, Circuit Judge:
Petitioner Asbestos Information Association/North America
("AIA/NA") petitioned this court for review of a final rule
promulgated by the Occupational Safety and Health Administration
("OSHA" or "the Agency"). We grant review and vacate the Agency's
shipyard and construction standards insofar as they regulate
asphalt roof coatings and sealants which contain asbestos.
FACTS AND PROCEEDINGS BELOW
a. Background of litigation and regulation
In 1986, OSHA issued a rule regulating occupational exposure
to asbestos. The D.C. Circuit upheld part of the rule and remanded
other parts to OSHA for further action. Building & Const. Trades
Dept., AFL-CIO v. Brock, 838 F.2d 1258 (D.C.Cir.1988). In 1994,
pursuant to the remand and after notice-and-comment, OSHA published
*
District Judge of the Western District of Louisiana, sitting
by designation.
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a final rule. 59 Fed.Reg. 40964 (August 10, 1994). After
additional challenges, OSHA made modifications to the final rule.
60 Fed.Reg. 50411 (Sept. 29, 1995).
Once again, challenges were filed. This case presents the
last petition that remains unsettled: AIA/NA's challenge to the
1994 Rule.
b. Facts relevant to AIA/NA's claims.
AIA/NA represents asbestos miners and manufacturers of
asbestos-containing products. Among the few remaining asbestos
products manufactured in the United States are roofing sealants and
coatings which are asphalt mixtures containing asbestos fibers.
During the manufacturing process solid asphalt is liquefied by
dissolving it in paint thinner, resulting in a thin black syrup.
Enough chrysotile or powdered asbestos is mixed into the syrup to
make a stiff paste that can be used, for example, to seal the crack
around a chimney. When the solvent evaporates, the asphalt becomes
a tough leather-like film that shuts out water. Roof coatings are
manufactured in the same way, except that they have a thinner
consistency so that they can be applied with a brush. AIA/NA takes
the position that the manufacturing process encapsulates the fibers
in asphalt so that the asbestos cannot become airborne and workers
cannot inhale or swallow the fibers inadvertently. There is no
evidence in the record that these products have ever been found to
cause any worker exposure to asbestos. AIA/NA therefore objects to
OSHA's regulations requiring warning labels on the products,1
1
29 C.F.R. § 1926.1101(k)(8)(iii) & (vi)(A) (1995).
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notification to building owners when the products are installed,2
and work practice requirements that increase the cost of removal.3
STANDING
The party seeking to invoke federal jurisdiction has the
burden of establishing standing. Lujan v. Defenders of Wildlife,
504 U.S. 555, 561, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992).
The Secretary challenges AIA/NA's standing alleging (1) AIA/NA can
establish no injury in fact—that is, the challenged regulations do
not impose compliance duties on AIA members or induce users to shy
away from asbestos containing products; and (2) the interest
AIA/NA asserts is not within the "zone of interest" the OSH Act
seeks to protect.
The Secretary's first contention is meritless. AIA/NA
challenges the regulation imposing hazard communication
requirements directly on AIA/NA members. Further, AIA/NA relies on
OSHA's own economic analysis which recognized that even when
asbestos-based products are cheaper than non-asbestos based
products, demand is shifting away from asbestos-based products due
to market response to liability and regulatory concerns. 59
Fed.Reg. 40964, 41051, col. 1 (1994). That is sufficient to
sustain AIA's burden of establishing that the challenged
regulations impair product marketability. We find that AIA/NA has
met its burden of establishing that it has sustained an injury in
fact.
2
29 C.F.R. § 1926.1101(g)(11)(v) (1995).
3
29 C.F.R. § 1926.1101(g)(8)(ii) & (g)(11) (1995).
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We must next determine whether the interest sought to be
protected by the complainant is "within the zone of interests to be
protected or regulated by the statute[.]" Ass'n of Data Processing
Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct.
827, 829, 25 L.Ed.2d 184 (1970). There is a presumption in favor
of judicial review of agency action, Block v. Community Nutrition
Institute, 467 U.S. 340, 348, 104 S.Ct. 2450, 2455, 81 L.Ed.2d 270
(1984), but at bottom the reviewability question turns on
congressional intent. Clarke v. Securities Industry Ass'n, 479
U.S. 388, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987). The OSH Act
provides for judicial review by "any person who may be adversely
affected by a standard." 29 U.S.C. § 655(f) (1996). Under the
plain language of § 655(f), AIA/NA has standing as a "person who
may be adversely affected."
SUBSTANTIAL EVIDENCE TO SUPPORT THE CHALLENGED REGULATIONS
The burden is on OSHA to show, on the basis of substantial
evidence, the need for the challenged regulation. Industrial Union
Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 653,
100 S.Ct. 2844, 2869-70, 65 L.Ed.2d 1010 (1980). AIA/NA contends
that OSHA's regulations regarding work practice, training, and
hazard communication requirements on roofing sealants that contain
asbestos are not supported by substantial evidence. AIA/NA states,
and our record review confirms, that there is no evidence in the
record that asbestos fibers can ever escape from roofing sealants
and become airborne; in fact, the evidence in the record indicates
that they cannot. Neither the Secretary nor the AFL-CIO,
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intervenor on behalf of the Secretary, seriously disputes this
assertion. Rather, they argue that it is neither practical nor
scientifically possible to distinguish roofing sealants from built
up roofing for purposes of asbestos regulations. Because asbestos
creates significant risk at minuscule levels of exposure and
because there is evidence that other kinds of roofing materials
break down due to weathering and agressive handling, releasing
asbestos, the Secretary contends that OSHA can "rationally
conclude" that sealants will present similar problems.
Specifically, evidence in the record supports the finding that
built up roofing, consisting of layers of asbestos felts coated
with asphalt, can break down and result in asbestos exposure. In
Color Pigments Mfrs. Ass'n, Inc. v. OSHA, 16 F.3d 1157 (11th
Cir.1994), the Eleventh Circuit held that OSHA acted rationally in
subjecting low solubility cadmium compounds to the same standard as
compounds of higher solubility when no definitive study confirmed
or refuted the hypothesis that all cadmium compounds are equally
toxic. The Secretary argues that, similarly, OSHA could rationally
conclude that roofing sealants in question here might break down
and result in exposure. Evidence in the rulemaking record refutes
this position. The potential for fiber release from sealants is
not analogous to the potential for fiber release from asphalt
coated asbestos felting and similar built-up roofing products. It
is clear that built up roofing poses real risks of exposure that
are not present in roofing sealants. Further, OSHA recognized this
difference when it developed separate requirements specifically
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governing roofing sealants.
The Secretary argues that it has discretion to address
asbestos risk through a comprehensive standard, acknowledging its
obligation to defend individual provisions as "reasonably related"
to the purpose of the standard as a whole, citing Forging Indus.
Ass'n v. Secretary of Labor, 773 F.2d 1436, 1447 (4th Cir.1985).
Nothing in this opinion in intended to inhibit such discretion,
should any future rulemaking produce substantial evidence to
support a finding that roofing sealants pose a risk of asbestos
exposure.
CONCLUSION
We hold that, because of the lack of substantial evidence in
the record, the challenged regulations are invalid as to
asbestos-containing asphalt roof coatings and sealants.
Petition for Review GRANTED; Agency's standards VACATED.
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