dissenting:
I respectfully dissent. Doubtless the majority is correct in asserting that the Occupational Safety and Health Act only authorizes regulation of unsafe conditions of the workplace, but I believe that the majority affords insufficient deference to the Secretary’s conclusion that the hearing loss regulated by the Hearing Conservation Amendment is employment-related.
The Hearing Conservation Amendment proposes to regulate by detecting industrially-produced hearing loss and then arresting further deterioration by requiring the use of protective devices, employee training, and the posting of warning signs. The majority opinion obviated discussion of the details of the regulation by holding that the entire regulation exceeded OSHA’s authority. I, therefore, confine this discussion to the majority decision. In my opinion there is more than substantial evidence to support the factual findings which form the basis of the Secretary’s conclusion that the Hearing Conservation Amendment is “reasonably necessary or appropriate to provide safe or healthful employment,” 29 U.S.C. § 652(8) (1982); Industrial Union Dep’t v. American Petroleum Institute, 448 U.S. 607, 630-35, 642, 100 S.Ct. 2844, 2858-60, 2864, 65 L.Ed.2d 1010 (1980), and is therefore a valid exercise of his authority to promulgate occupational safety and health standards.
OSHA made factual determinations of the extent of the danger posed by workplace noise before issuing this interim regulation. It found that there are 2.2 million workers in American production industries exposed to an eight-hour TWA between 85-90 db. Ten to fifteen percent of the workers exposed to an eight-hour TWA of 85 db will suffer material hearing impairment, as will twenty-one to twenty-nine percent of employees exposed to an eight-hour TWA of 90 db. These figures represent a composite of studies done by the Environmental Protection Agency, the National Institute for Occupational Safety and Health, the International Organization for Standardization, and Dr. W. Baughn of the General Motors Corporation. On the basis of these figures, OSHA identified the risk of hearing loss to these 2.2 million workers as a serious public health problem requiring regulation.
Besides determining from several objective sources the magnitude of the risk to workers, OSHA also considered two scientific studies of the projected benefits of the Hearing Conservation Amendment. Bolt, Beranek, and Newman, Inc., a consulting firm under contract to OSHA, concluded that over a twenty-year exposure period the amendment would save a maximum of 324,000 workers from occupationally-caused material hearing impairment. A closely related study by the Center for Policy Alternatives, under contract to the Environmental Protection Agency, concluded that if noise exposure were reduced from 90 db to 85 db, over a forty-year exposure period, 580,000 employees would be spared occupationally-caused material hearing impairment. OSHA carefully reviewed both studies and relied on them in preparing its own benefit analysis. After making what it considered to be appropriate adjustments for changes in size of the exposed work force, for the OSHA definition of material impairment, and for the protective ability of various devices, OSHA estimated that the total number of workers spared material impairment would be 212,-000 in the tenth year, 477,000 in the twentieth year, 696,000 in the thirtieth year, 799,-*216000 in the fortieth year, and 898,000 in the seventieth year.
Regulation of the industrial cause and effect of hearing loss obviously is not as simple as regulation of most mechanical hazards. Dangers inherent in the operation of moving machinery such as a table saw are easily perceived, and their causal relation to mutilated human limbs or eyes are readily understood and frustrated. Prevention of more subtle hazards requires more sophisticated solutions. OSHA resorted to scientific institutions to define the problem relating to industrially-caused hearing loss and relied on that information in designing its proposal. The court must apply the substantial evidence test deferentially, particularly when the Secretary’s factual findings are based upon complex scientific and factual data or involve speculative projections. Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 103 S.Ct. 2246, 2256, 76 L.Ed.2d 437 (1983); United Steelworkers of America v. Marshall, 647 F.2d 1189, 1206-07 (D.C.Cir.1980), cert. denied sub nom. National Ass’n of Recycling Industries, Inc. v. Secretary of Labor, 453 U.S. 913, 101 S.Ct. 3149, 69 L.Ed.2d 997 (1981). In these circumstances, the Agency’s finding must only be within a “zone of reasonableness.” United Steelworkers, 647 F.2d at 1207.
The Secretary’s Hearing Conservation Amendment is clearly within the zone of reasonableness. In the first place, the amendment covers only those industries with a noise level that has been scientifically demonstrated to be a high risk factor to hearing health. Secondly, a threshold test is administered in those high risk industries, and hearing loss is measured after continued exposure to that high risk noise level.
To be sure, some hearing loss, occurs as a part of the aging process and can vary according to non-occupational noises to which employees are exposed. The Hearing Conservation Amendment, however, is concerned with occupational noises — a hazard of the workplace. The hazard is identified as sustained noise of great intensity— 85 db and above. Non-occupational noise of that intensity sustained over a period of eight hours each day is hard to imagine.
The amendment provides that non-oecu-pationally caused hearing loss be excluded from its regulation. Assuming, however, that some loss caused by aging or smaller amounts of noise sustained for shorter periods also aggravates the hearing loss incurred by an individual employed in a high noise-producing industry, that is scant reason to characterize the primary risk factor as non-occupational. Breathing automobile exhaust and general air pollution, for example, is not healing to a wounded lung. That hardly justifies failure to regulate noxious workplace fumes that inflicted the primary wound. Nor would there be logic to characterizing regulation of the fumes as non-occupational because the condition inflicted is aggravated by outside irritants.
OSHA found that the amendment’s cost to the regulated industries would average $41.00 annually per employee, and that it was economically feasible. Believing that the facts found by OSHA are supported by substantial evidence, and that the Secretary acted within his statutory authority and adequately explained the logic and policies underlying his regulation, United Steelworkers, 647 F.2d at 1207, I would affirm.