United States Court of Appeals,
Eleventh Circuit.
No. 94-3065.
ALABAMA POWER COMPANY, Georgia Power Company, Gulf Power Company,
Mississippi Power Company, Savannah Electric and Power Company,
Petitioners,
v.
OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, United States
Department of Labor, Respondents,
International Brotherhood of Electrical Workers, AFL-CIO, Utility
Workers of America, AFL-CIO, National Rural Electric Cooperative
Assoc., Intervenors.
July 26, 1996.
Petition for Review of an Order of the Occupational Safety and
Health Review Commission.
Before CARNES, Circuit Judge, and FAY and GIBSON *, Senior Circuit
Judges.
FAY, Senior Circuit Judge:
This action arises from the passage of a standard by the
Occupational Safety and Health Administration (OSHA) governing
Electric Power Generation, Transmission and Distribution;
Electrical Protective Equipment. 59 Fed.Reg. 4320-4476 (1994)
(codified at 29 C.F.R. § 1910.269) (the "Standard"). Specifically,
petitioners challenge a single provision of the Standard, namely 29
C.F.R. § 1910.269(1)(6)(iii) (the "apparel provision") which
addresses clothing requirements for those employees who may be
exposed to the hazards of flames or electric arcs. We find that
OSHA provided adequate notice and opportunity for comment with
regard to the apparel provision and that the inclusion of the
*
Honorable John R. Gibson, Senior U.S. Circuit Judge for the
Eighth Circuit, sitting by designation.
apparel provision within the text of the Standard was supported by
substantial evidence. Accordingly, the petition for review is
DENIED.
I. BACKGROUND
The Standard at issue arose as a result of a cooperative
initiative between the Edison Electric Institute (EEI), a major
trade association of investor-owned electric utilities, and the
International Brotherhood of Electrical Workers (IBEW), a major
union representing electric utility workers. 59 Fed.Reg. 4322.
EEI and IBEW presented OSHA with their versions of a draft standard
providing for comprehensive regulation of the electric utility
industry. Id. OSHA utilized the drafts submitted by EEI and IBEW
as one of the bases for the development of a proposed standard
regulating the industry. Id. On January 31, 1989, OSHA published
a draft of the Standard with a Notice of Proposed Rulemaking. 54
Fed.Reg. 4974.
The initial draft standard did not contain a provision
regarding apparel. However, the January 31, 1989 notice contained
a statement that OSHA was requesting comments on the desirability
of adopting requirements regarding the types of clothing fabrics
worn by electric utility workers due to the fact that certain
fabrics are easily ignited and can cause severe burns. 54 Fed.Reg.
4990. Further, OSHA requested comments on the costs and benefits
of any suggested provisions regarding apparel. Id.
Interested parties were given until May 1, 1989, and then
again until June 1, 1989 to comment on the proposed Standard. On
July 20, 1989, OSHA issued a Notice of Hearing on the Standard. 54
Fed.Reg. 30401. In it OSHA noted that it was considering a
prohibition of any clothing fabrics that would substantially
increase the severity of an employee's injury from arcing
electrical equipment, and requested additional comment on flammable
fabrics. Id. at 30404. Eleven days of public hearings were held
and the submission of post-hearing briefs and comments were
permitted until March 1, 1991.
On January 31, 1994, OSHA issued the final Standard. The
apparel provision provides in part:
The employer shall ensure that each employee who is exposed to
the hazards of flames or electric arcs does not wear clothing
that, when exposed to flames or electric arcs, could increase
the extent of injury that would be sustained by the employee.
59 Fed.Reg. 4445. A note further provides that acetate, nylon,
polyester, and rayon, either alone or in blends, are prohibited
unless the employer can demonstrate that the fabric has either been
treated to withstand possible conditions or worn in a manner which
eliminates the hazard involved. Id.
In its preamble explanation of the Standard's apparel
provision, OSHA noted that "[n]atural fabrics, such as 100 percent
cotton or wool, and synthetic materials that are flame resistant or
flame retardant are acceptable under the final rule." 59 Fed.Reg.
4389. OSHA also acknowledged that a videotape produced by the Duke
Power Company in Charlotte, NC, which reported on tests performed
on various clothing materials, was a predominant basis upon which
the apparel provision was promulgated. Specifically, OSHA stated
that "[t]he requirement is intended to prohibit the types of
fabrics shown in the [video] to be expected to cause more severe
injuries than would otherwise be anticipated." Id.
On June 30, 1994, in response to certain industry
representative's questions concerning the preamble's clarity with
regard to those natural fabrics which would be deemed acceptable
under the apparel provision, OSHA published what it considered to
be a "Correction of the Preamble", which was intended to clarify
the January 31 preamble. This "correction" provides, inter alia:
Natural fabrics, such as 100 percent cotton or wool, are
acceptable under the final rule, provided they are of such
weight and construction as not to ignite under the conditions
to which an employee might be exposed. (For example, cotton
fabrics of 11 ounces or [more] generally will not ignite when
exposed to an arc the energy of which is approximated by a
3800-ampere, 12-inch arc lasting for 10 cycles ...).
Synthetic materials that are flame resistant or flame
retardant are acceptable under the final rule.
59 Fed.Reg. 33661. In its explanation of the "correction" OSHA
noted that the clarification did not revise either the January 31,
1994 rule with regard to apparel, nor the note following it which
specified the prohibited fabrics. 59 Fed.Reg. 33659. Shortly
thereafter, with regard to the apparel provision, petitioners filed
a Petition for Review before this court.
II. STANDARD OF REVIEW
The burden of proving the validity of an occupational safety
and health standard rests with OSHA. Industrial Union Dept., AFL-
CIO v. American Petroleum Inst., 448 U.S. 607, 653, 100 S.Ct. 2844,
2869-70, 65 L.Ed.2d 1010 (1980); AFL-CIO v. OSHA, 965 F.2d 962,
973 (11th Cir.1992). Determinations made by OSHA shall be
conclusive if supported by substantial evidence based on the entire
record. 29 U.S.C. 655(f). " "Substantial evidence' as "such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.' " AFL-CIO v. OSHA, 965 F.2d at 970 (quoting
American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 522,
101 S.Ct. 2478, 2497, 69 L.Ed.2d 185 (1981)). A "harder look' at
OSHA's action is required than if we were reviewing it under the
arbitrary and capricious standard which is the more deferential
standard applicable to agencies regulated by the Administrative
Procedure Act. AFL-CIO v. OSHA, 965 F.2d at 970. In considering
the record as a whole, reviewing courts must consider both
supportive and countervailing evidence. Id. Nevertheless, the
court "must uphold [OSHA's] "choice between two fairly conflicting
views, even though the court would justifiably have made a
different choice had the matter been before it de novo.' " AFL-CIO
v. OSHA, 965 F.2d at 970 (quoting AFL-CIO v. Marshall, 617 F.2d
636, 649, n. 44 (D.C.Cir.1979). "OSHA's policy decisions must be:
(1) consistent with the language of and purpose of the OSH Act, and
(2) reasonable under the rulemaking record." AFL-CIO v. OSHA, 965
F.2d at 970. In addition, the " "validity of an agency's
determination must be judged on the basis of the agency's stated
reasons for making that determination.' " AFL-CIO v. OSHA, 965
F.2d at 970. (quoting AFL-CIO v. American Petroleum Inst., 448
U.S. at 631, n. 31, 100 S.Ct. at 2858, n. 31).
III. ANALYSIS
The Occupational Safety and Health Act of 1970, 29 U.S.C. §§
651-678, was enacted in order "to assure so far as possible every
working man and woman in the Nation safe and healthful work
conditions ..." 29 U.S.C. § 651(b). To achieve this purpose, the
Secretary of Labor (OSHA) is authorized to "promulgate, modify, or
revoke any occupational safety or health standard.... and shall
afford interested persons a period of thirty days after publication
to submit written data or comments." 29 U.S.C. § 655(b); see AFL-
CIO v. OSHA, 965 F.2d at 968-969.
A. Notice and Opportunity to Comment
Petitioners challenge the Standard at issue on both
procedural and substantive grounds.1 Petitioners first argue that
OSHA failed to provide notice and an adequate opportunity for
comment with regard to the June 30, 1994 "revision" of the apparel
provision.2 Apparently, Petitioners contend that the apparel
provision, as originally issued, permitted all natural fabrics,
regardless of weight, whereas the "correction" was in effect a
"modification" because it did not permit all natural fabrics, but
rather specified only certain weights of natural fabrics it deemed
acceptable.
As previously noted, OSHA is required to provide the public an
1
The industry petitioners include Alabama Power Company,
Georgia Power Company, Gulf Power Company, Mississippi Power
Company, and Savannah Electric and Power Company.
2
Petitioners also contend that the Notice of Proposed
Rulemaking and the Notice of Hearing (January 31, 1989, and July
20, 1989 respectively) were not sufficient to put them on notice
that OSHA was even contemplating the regulation of natural
fabrics. We disagree. The January 31, 1989 notice clearly
requested comments regarding whether it should adopt requirements
with regard to clothing fabrics that are easily ignited. 54
Fed.Reg. 4990. In addition, the July 20, 1989 pre-hearing notice
advised interested parties that OSHA was considering a
prohibition on any clothing that could increase the severity of
injury from electric arcs. 54 Fed.Reg. 30404 (emphasis added).
These notices were more than adequate to apprise petitioners of
OSHA's intent to possibly regulate any fabric that could
exacerbate injuries, including synthetics and natural fabrics.
Nothing that was said in these notices can reasonably be
interpreted to suggest that only synthetic fabrics were
concerned. For these reasons, we find that petitioners argument
is without merit.
opportunity to comment with regard to standards that are modified.
29 U.S.C. § 655(b)(2). Nevertheless, "[w]e do not read § 655(b)(2)
to invalidate a clarification of this sort, issued relatively soon
after the issuance of a standard." International Union, UAW v.
OSHA, 938 F.2d 1310, 1325 (D.C.Cir.1991) (technical correction
notice issued 13 months after final rule issued). In commenting on
certain weights of natural fabric OSHA did not change the fact that
natural fabrics are indeed acceptable under the Standard. Rather,
it merely clarified that under certain conditions, heavyweight
natural fabrics are necessary in order to fully protect those
workers exposed to electric arcs.3 OSHA unambiguously noted that
"100 percent cotton or wool will be acceptable if its weight is
appropriate for the flame and electric arc conditions to which an
employee could be exposed." 59 Fed.Reg. 33659. The employer has
discretion to determine whether or not 100 percent cotton or wool
clothing is acceptable under the conditions to which a worker could
be exposed.4 Id. Such statements make it clear that natural
3
Specifically, OSHA stated that cotton fabrics "of less than
11 ounces will not meet the performance criteria given in the
Standard for employees exposed to conditions comparable to those
in the Duke Power [video]." 59 Fed.Reg. 33659. Those conditions
involved an 3800-ampere, approximately 12-inch arc which was 12
inches from the fabric and lasted for 10 cycles. Id. We find
that this statement in no way eliminates the possible use of
lightweight fabrics in conditions that are less severe than those
in the Duke Power video. Furthermore, the video upon which OSHA
primarily based this provision encourages the use of either flame
resistant/flame retardant lightweight natural fabrics, or heavy
weight natural fabrics, thus disposing of any argument that
lightweight natural fabrics have been eliminated altogether from
the list of acceptable fabrics.
4
Petitioners erroneously and inappropriately contend that
all electric utility workers, such as meter readers, would be
required to wear only those fabrics deemed acceptable under the
Standard. The apparel provision by definition is only applicable
fabrics are in no way prohibited altogether, but rather, that
certain conditions to which a worker may be exposed call for either
a heavyweight natural fabric, or a lightweight flame retardant
natural fabric.
The final standard, correction included, "is consistent with
the record evidence and would have constituted a logical outgrowth
of the proposed [standard] if originally promulgated as corrected."
Therefore, OSHA is exempt from the notice requirements applicable
to standard modifications.
B. Finding of Significant Risk
Second, petitioners allege that OSHA has not demonstrated, by
substantial evidence, a significant risk of material harm which is
addressed by the June 30, 1994 "revision" of the apparel provision.
Specifically, petitioners allege that OSHA's determination of the
existence of a significant risk with regard to natural fabrics is
contrary to the record evidence.
Before OSHA can issue a permanent standard pursuant to 29
U.S.C. 655(b) (1988) it must find, as a threshold matter, that a
significant occupational health or safety risk exists. AFL-CIO v.
OSHA, 965 F.2d at 972-73. This finding must be made in order to
comply with the requirement that all OSHA standards must be
"reasonably necessary or appropriate to provide safe or healthful
employment and places of employment." 29 U.S.C. § 652(8).
to those electrical workers who are exposed to electrical arcs.
Specifically, the provision encourages employers to ensure their
employees wear such clothing "if they will be exposed to the
hazard of flame or electric arc." 59 Fed.Reg. 33659 (emphasis
added). Residential meter readers clearly do not fall within
this category.
OSHA's finding of a safety hazard with respect to synthetics,
and natural fabrics under certain conditions, is based on the
comments and submissions in the rulemaking record made by various
electric utility industry representatives. Based on this
information, OSHA found that a significant risk of harm exists for
those workers exposed to electric arcs while wearing clothing made
of easily ignited fabrics which can increase the extent of injury
caused. What must be ascertained is whether OSHA's determination
of the existence of a significant risk of harm is based on
substantial evidence. Texas Independent Ginners Ass'n. v.
Marshall, 630 F.2d 398, 406 (5th Cir.1980).5
Based on the record as a whole, it is our belief that OSHA has
presented substantial evidence of a significant risk, thus
justifying the inclusion of the "clarification" within the apparel
provision. OSHA primarily relied on the Duke Power Videotape,
which reported on previous tests performed on a variety of treated
and untreated fabrics, and which showed a demonstration
highlighting the alarming effects of exposure to electrical arcs
while wearing synthetics.6 We find that the video was powerful and
substantial evidence that synthetics, as well as lightweight
5
Decisions of the former Fifth Circuit handed down before
October 1, 1981 are binding precedent in this circuit. Bonner v.
City of Prichard, Alabama, 661 F.2d 1206, 1209 (11th Cir.1981)
(en banc).
6
The record reveals at least two major electric utility
groups, the International Brotherhood of Electrical Workers
(IBEW) and the American Society For Testing and Materials (ASTM),
who endorse the Duke Power Video and claim that the data derived
from the tests performed has been exceptionally useful and has
provided accident prevention and life saving data that is of
great importance to the industry.
natural fabrics, do not adequately protect workers from the burning
and possible melting and sticking which can be caused by exposure
to electrical arcs. Comments from some other industry
representatives also suggest that because synthetics are dangerous,
natural fabrics should be worn. All of this is consistent with
OSHA's determination that while all untreated synthetics should be
prohibited, natural fabrics are acceptable so long as they fall
into one of two categories: 1) lightweight natural fabrics that
have been treated and are flame resistant, and 2) heavy weight
natural fabrics.
We find that the record contains substantial evidence
supporting OSHA's determination that wearing synthetics and
untreated lightweight natural fabrics poses a significant risk of
harm to electric utility workers exposed to electric arcs.
C. Reasonably Necessary or Appropriate Standard
Third, petitioners contend that OSHA did not demonstrate, by
substantial evidence, that the June 30, 1994 "revision" of the
apparel provision is "reasonably necessary or appropriate."
Specifically, petitioners contend that OSHA failed to consider the
costs imposed by the provision.
The applicable test is dependant on the type of material
regulated by a standard. OSHA standards regarding toxic materials
or harmful physical agents must be standards which most adequately
assure, "to the extent feasible, ... that no employee will suffer
material impairment of health or functional capacity." 29 U.S.C.
§ 655(b)(5). "The Supreme Court has interpreted this language to
require that the proposed standard be both technologically and
economically "feasible.' " International Union, 938 F.2d at 1313.
Standards imposed under 29 U.S.C. § 655(b), which do not concern
toxic materials or harmful physical agents, must be " "reasonably
necessary or appropriate' to protect employee safety." National
Grain and Feed Association v. OSHA, 866 F.2d 717, 733 (5th
Cir.1989). In addition, "[t]he reasonably necessary or appropriate
limitation requires that OSHA regulations must be reasonably
essential or at least reasonably efficacious in reducing a
significant risk of material harm." Texas Independent Ginners, 630
F.2d at 410. "Although the agency does not have to conduct an
elaborate cost-benefit analysis, it does have to determine whether
the benefits expected from the standard bear a reasonable
relationship to the costs imposed by the standard." American
Petroleum Inst. v. OSHA, 581 F.2d 493, 503 (5th Cir.1978)
(citations omitted).
Regardless of whether the feasibility limitation or the
reasonably necessary limitation applies to the instant case, we
find that OSHA's findings and actions based on such fulfill both
standards. In its costs analysis for the Standard, OSHA did not
attribute any cost to the apparel provision because the provision
itself does not require utility employers to supply work clothing
to their employees. R-L-71 at pp. 4-16, 4-34, 4-49, and 4-72.
Although the cost of compliance could therefore be passed on to the
employees, we nevertheless find nothing in the record that leads us
to believe that using heavyweight natural fabric clothing, or flame
retardant treated clothing, would necessarily increase the cost at
all. Indeed, although petitioners claim compliance with this
provision will impose "tremendous" costs upon employees, we find no
evidence in the record which substantiates their claim. In
analyzing the benefits of the Standard, OSHA concluded that
compliance with the Standard will "significantly reduce the number
of fatalities and injuries involving electrical contact, flash
burns, and thermal burns," 59 Fed.Reg. 4431 (emphasis added), and
is expected to prevent 61 fatalities and 1634 injuries annually.
59 Fed.Reg. 4430.
Although OSHA may not have done everything it could to be in
literal compliance with either test annunciated above, we
nevertheless find that OSHA's conclusions are supported by
substantial evidence in the record. As Mr. Wallace Reed of W.H.
Salisbury and Co. so aptly noted with regard to this provision:
"any added measure of protection afforded is justified by the small
difference in cost." R-3-57. In this case, as previously noted,
our thorough search of the record reveals no evidence supporting
petitioners' assumption that compliance will necessarily result in
increased costs.7
D. Stated Reasons for the Apparel Provision
Fourth, petitioners challenge whether or not OSHA adequately
explained its reasons for the June 30, 1994 "correction" of 29
C.F.R. § 1910.269(1)(6)(iii) (apparel provision).
Pursuant to 29 U.S.C. § 655(e), in promulgating any standard
the Secretary of Labor must include a statement of the reasons for
7
Because petitioners did not properly raise their objections
during the rulemaking proceeding, we decline to address any
argument that OSHA failed to consider the issue of heat stress
with regard to this provision. See Taft v. Alabama By-Products
Corporation, 733 F.2d 1518, 1523 (11th Cir.1984).
such action. To that end, "the agency must pinpoint the factual
evidence and the policy considerations upon which it relied." AFL-
CIO v. Marshall, 617 F.2d 636, 651 (D.C.Cir.1979).
Our review of the record leads us to conclude that OSHA
sufficiently articulated the factual evidence and policy
considerations upon which it relied. In its statement of reasons
for its action, OSHA noted evidence which supported a finding that
certain fabrics worn by electric utility workers exposed to
electric arcs could actually increase the extent of injury caused
by contact with arcs. For instance, OSHA found that the testimony
of Mr. James Ozello of the IBEW strongly rebutted the comment made
that electric utility employees are rarely exposed to electric
arcs. Specifically, Mr. Ozello testified that with regard to
accidents involving burns, "[i]f 65 of the employees who were
involved in serious accidents had been wearing natural fiber
clothing or flame retardant clothing, their accidents might not
have been classified as serious accidents."8 59 Fed.Reg. 4388.
OSHA also stated that in promulgating this provision it relied upon
the Duke Power video submitted by the IBEW which "demonstrat[ed]
the effects of different types of clothing upon exposure to
electric arcs." Id. at 4389. In addition, other submissions to
the record were cited by OSHA as evidence upon which it relied.
8
Although Mr. Ozello's testimony appears to advocate the use
of natural fiber clothing, in no way does that contradict the
apparel provision at issue. As previously mentioned, the
provision does not prohibit the use of natural fabrics. In the
notice and explanation of the provision, OSHA places great
emphasis on the Duke Power video which states that workers
exposed to electrical arcs can wear lightweight flame retardant
cotton in the summer and heavyweight cotton in the winter.
See 59 Fed.Reg. 4389. OSHA believed these submissions provided
ample evidence of the fact that certain fabrics increase the extent
of injuries caused by electrical arc exposure.
Consequently, OSHA's comments in the Federal Register are
sufficient to comply with the requirement imposed by 29 U.S.C. §
655(e).
IV. CONCLUSION
For these reasons, we uphold the apparel provision of the
Standard at issue. Therefore, the petition for review is DENIED.