Alabama Power Co. v. Occupational Safety & Health Administration

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.