(dissenting) .
In 1970, the Occupational Health and Safety legislation became law. The Congress of the United States declared it to be their purpose and policy to assure, so far as possible, every working man and woman in the nation safe and healthful working conditions. To achieve this goal, Congress empowered the United States Secretary of Labor to implement regulatory standards.
On May 3, 1973, pursuant to the congressional mandate set forth in the Occupational Safety and Health Act, 29 U. S.C. §§ 651-678 (the Act), the Secretary of Labor promulgated an Emergency Temporary Standard regulating employee exposure to fourteen (14) substances which the Secretary determined to be carcinogenic (cancer-causing). Several manufacturers and users of two (2) of these substances, dichlorobenze-dine (DCB) and ethyleneimine (El), petitioned this court to vacate the Emergency Temporary Standard in so far as it applied to these substances.
These petitioners contend that there was no substantial evidence in the Secretary’s findings to show that employees are subjected to grave danger from exposure to substances or agents determined to be toxic or physically harmful as required by 29 U.S.C. § 655(c)(1) and that the Secretary’s reasons for issuing the Emergency Temporary Standard were inadequate. The majority opinion agrees with these propositions and thereby vacates the Emergency Temporary Standard’s provisions relative to DCB and El. I must respectfully dissent.
The record before us contains the results of various scientific experiments which stand for the proposition that ingestion of DCB and El may cause cancerous tumors to develop in the anatomical structures of mice and rats. These findings led the Secretary to conclude that DCB and El could possibly produce similar results in the human anatomy and he therefore issued the Emergency Temporary Standard. The Act requires that, upon judicial review of any standard promulgated pursuant to its provisions, “determinations of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole.” 29 U.S.C. § 655(f). Stated another way, there must be substantial evidence in the record to justify setting aside the Standard. Here, the Secretary has taken affirmative action to protect and preserve human life. Petitioners have asked this court to invalidate that action. Obviously the petitioners must bear the burden of proof, i. e. they must be able to show by substantial evidence that their conduct does not jeopardize the health of their workers. They, however, merely assert that since there is inconclusive scientific data proving DCB and El to be carcinogenic in man, the Standard should be set aside. Those assertions cannot be reasonably accepted as substantial evidence and clearly the Standard should remain.
Subsection (c)(1)(A) of Section 655 of the Act provides that “The Secretary shall provide * * * for an emergency temporary standard to take immediate effect upon publication in the Federal Register if he determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful * * The majority takes the position that the phrase “determined to be toxic or physically harmful” requires the Secretary to establish, by substantial evidence, that a substance is potentially harmful and that a showing of some possibility of harm would not justify the issuance of an Emergency Temporary Standard. To decide wheth*110er Congress empowered the Secretary to regulate a substance or agent because it is possibly harmful, probably harmful, or actually harmful is to engage in a futile exercise in semantics. My reading of the Act and its legislative history makes one thing abundantly clear: Congress intended to protect the health and safety of the American worker. Therefore, I would hold that even a scintilla of evidence which tends to prove a substance carcinogenic in man or animal justifies the issuance of an Emergency Temporary Standard.
Subsection (e) of Section 655 of the Act provides that “Whenever the Secretary promulgates any standard * * * under this chapter, he shall include a statement of the reasons for such action, which shall be published in the Federal Register.” The majority would have it that the Secretary’s statement of reasons in the Emergency Temporary Standard published in the May 3, 1973 issue of the Federal Register is inadequate. I cannot possibly agree. The unmistakable intent of subsection (e) is to require the Secretary to inform the public of the reasons for his actions. On May 3, 1973, users and manufacturers of DCB and El were put on notice that their products were to be regulated by the federal government. They were not left to second guess the Secretary’s reasons or motives for taking such action. They were informed on said date that the Secretary had determined the substances to be carcinogenic. Nothing more should be required. If we were to try and force' the Secretary to issue an exhaustive statement explaining and supporting his motives, the Emergency Temporary Standard would become an ineffective mechanism. All of the relevant data utilized by the Secretary in making his determination was available to interested parties upon their request. The petitioners had notice of the Secretary’s reasons for the issuance of the Emergency Temporary Standard and those same petitioners had access to the scientific data which was the foundation for the Secretary’s decision. The Secretary’s action promptly and properly fulfilled the statutory requirement, it should not be disturbed.
For the reasons set forth above, the order of the Assistant Secretary of Labor for Occupational Safety and Health as published in the May 3, 1973 issue of the Federal Register, 38 Fed.Reg. 10929 should be upheld.