Natl Assoc Mftr v. OSHA

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 28, 2007 Decided May 11, 2007

No. 06-1122

NATIONAL ASSOCIATION OF MANUFACTURERS, ET AL.,
PETITIONERS

v.

OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION AND
ELAINE L. CHAO, SECRETARY OF THE UNITED STATES
DEPARTMENT OF LABOR,
RESPONDENTS

UNITED STATES CHAMBER OF COMMERCE,
INTERVENOR FOR PETITIONER

On Petition for Review of an Order of the
Occupational Safety and Health Administration

Douglas J. Behr argued the cause for petitioners and
intervenor in support of petitioners. With him on the brief was
Lawrence P. Halprin.

Edward D. Sieger, Senior Appellate Attorney, U.S.
Department of Labor, argued the cause for respondent. With
him on the brief were Joseph M. Woodward, Associate Solicitor,
and Ann S. Rosenthal, Deputy Associate Solicitor.
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Before: SENTELLE, HENDERSON, and TATEL, Circuit
Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: Under the Occupational Safety and
Health Act (“the Act”), parties adversely affected by an
occupational safety or health standard may file a petition for
review “at any time prior to the sixtieth day after such standard
is promulgated.” 29 U.S.C. § 655(f). In the 1980s, the
Department of Labor issued a standard prescribing hazard
disclosure requirements for the chemical industry. Among other
things, the standard imposes obligations based on the “latest
edition” of a list of dangerous chemicals published by a private
group of industrial hygienists. When the hygienists added
several chemicals to the list in 2006, industry groups filed this
petition for review, arguing that publication of the privately
created list effectively amended the standard without notice and
comment. Because the references to the “latest edition” of the
hygienists’ list have been part of the regulations for some twenty
years, we dismiss the petition as untimely.

I.

In order to “assure so far as possible every working man
and woman in the Nation safe and healthful working
conditions,” 29 U.S.C. § 651(b), Congress enacted the
Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-
78, giving “[p]rimary responsibility for the implementation of
the Act . . . [to] the Secretary of Labor.” Gen. Carbon Co. v.
OSHRC, 860 F.2d 479, 480 (D.C. Cir. 1988) (citing 29 U.S.C.
§ 655). In 1983, acting pursuant to this authority, the
Department, through the Occupational Safety and Health
Administration (OSHA), promulgated the Hazard
Communication Standard (HCS), which “imposed various
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requirements on manufacturers aimed at ensuring that their
employees were informed of the potential hazards posed by
chemicals found at their workplace.” Dole v. United
Steelworkers, 494 U.S. 26, 29 (1990). Critically for present
purposes, the HCS requires chemical manufacturers and
importers to provide employees and customers with safety
information—via labels and material safety data sheets
(MSDSs)—about the hazardous chemicals they make or import.
29 C.F.R. § 1910.1200 (d)–(g).

This case primarily concerns how particular chemicals are
classified as hazardous. Rather than attempting to identify every
hazardous chemical, the HCS “places primary responsibility for
determining which products are hazardous on the chemical
manufacturer or importer.” United Steelworkers v. Auchter, 763
F.2d 728, 739 (3d Cir. 1985). Thus, the HCS defines a chemical
as hazardous if “there is statistically significant evidence based
on at least one study conducted in accordance with established
scientific principles that acute or chronic health effects may
occur in exposed employees,” 29 C.F.R. § 1910.1200(c), and
requires that companies “evaluate chemicals produced in their
workplaces or imported by them to determine if they are
hazardous,” id. § 1910.1200(d)(1). Under this “one-study” rule,
a company that manufactures a particular chemical is free to
decide that a scientific study about that chemical is either
unreliable or inapplicable, in which case it need not treat the
chemical as hazardous. Companies choosing this option risk
enforcement proceedings if OSHA disagrees with their
assessment. See 29 U.S.C. § 658 (authorizing the Secretary of
Labor or her designee to issue citations for violations of
occupational safety or health standards).

The HCS, however, takes two categories of hazard
determinations out of company hands. First, it deems hazardous
any substance on OSHA’s list of Toxic and Hazardous
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Substances printed in subpart Z of 29 C.F.R. part 1910. 29
C.F.R. § 1910.1200(d)(3)(i). Second, and central to this case,
the HCS provides that chemicals must be treated as hazardous
if included in the “latest edition” of the “Threshold Limit Values
for Chemical Substances and Physical Agents in the Work
Environment” (“TLV list”), published by the American
Conference of Governmental Industrial Hygienists (ACGIH).
Id. § 1910.1200(d)(3)(ii). ACGIH describes itself as “an
organization devoted to the administrative and technical aspects
of occupational and environmental health. . . . [It] is a
professional society, not a government agency.” 2006 TLV List
at ii. According to a “Statement of Position” printed with the
2006 TLV list, ACGIH’s work reflects “scientific opinion based
on a review of existing peer-reviewed scientific literature by
committees of experts in public health and related sciences . . .
. [of] the level of exposure that the typical worker can
experience without adverse health effects.” Id. at v.

ACGIH published an updated version of the TLV list on
January 31, 2006. According to petitioners, the National
Association of Manufacturers and other industry groups, as well
as intervenor, the United States Chamber of Commerce
(throughout this opinion, we shall refer to all as “NAM”), the
2006 TLV list “added five new substances [three kinds of
calcium sulfate, coumaphos, and monochloroacetic acid] and
their corresponding [threshold limit values] to the ACGIH TLV
list.” Pet’rs’ Br. 12. The 2006 list also “established a [threshold
limit value] for a substance (propylene . . .) previously only
identified as an ‘asphyxiant,’” “lowered the [threshold limit
values] for nine substances already on the TLV list,” and
“changed the substantive notations associated with three
substances already on the TLV list.” Id. at 12-13. NAM’s
members manufacture or use chemicals affected by these
changes.
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Believing that publication of the 2006 TLV list amended the
HCS without opportunity for notice and comment, NAM filed
this petition for review under 29 U.S.C. § 655(f), which
authorizes challenges to occupational safety or health standards
“at any time prior to the sixtieth day after such standard is
promulgated.” Although NAM focuses on the HCS provision
that deems hazardous those chemicals included in the latest TLV
list, it identifies three other references to ACGIH’s publication.
First, the HCS provides that a chemical mixture must be treated
as hazardous if a minor component (less than one percent) of the
mixture could be released in a concentration that would exceed
an ACGIH threshold limit value. 29 C.F.R.
§ 1910.1200(d)(5)(iv). Second, the HCS requires that for any
such chemical mixture, the hazardous component must be
included in the mixture’s MSDS. Id. §
1910.1200(g)(2)(i)(C)(2). Finally, the HCS mandates that an
MSDS include: “The OSHA permissible exposure limit, ACGIH
Threshold Limit Value, and any other exposure limit used or
recommended by the chemical manufacturer, importer, or
employer preparing the material safety data sheet, where
available.” Id. § 1910.1200(g)(2)(vi).

II.

NAM’s argument on the merits is straightforward. The
same statute that authorizes OSHA to promulgate occupational
safety and health standards, 29 U.S.C. § 655, also authorizes it
to modify existing standards, but requires that it first publish
proposed rules in the Federal Register and allow thirty days for
comment. Id. § 655(b)(2). Contending that the HCS
“automatic[ally] incorporat[es]” each new TLV list upon
publication, NAM argues that when the 2006 list was published,
“OSHA . . . effectuated a new standard that imposes both new
and modified compliance obligations on employers . . . and
subjects them to the threat of enforcement actions and sanctions
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for failure to comply with those obligations.” Pet’rs’ Br. 19.
Because OSHA imposed these new obligations without notice
and comment, NAM claims that the agency has violated section
655.

The government’s response is equally straightforward.
Citing section 655(f)’s requirement that petitions for review of
occupational safety or health standards be brought within sixty
days of promulgation and noting that the HCS provisions
referencing the TLV list were promulgated in 1983 (in the cases
of 29 C.F.R. § 1910.1200(d)(3)(ii), (d)(5)(iv), and (g)(2)(vi))
and 1987 (in the case of 29 C.F.R. § 1910.1200(g)(2)(i)(C)(2)),
OSHA claims that NAM “misse[d] the statutory deadline by
about two decades.” Resp’ts’ Br. 22. Rejecting NAM’s view
that the 2006 TLV list amended the HCS, OSHA contends that
“[t]he [HCS] has always required employers, manufacturers and
importers to treat a substance as hazardous if it is listed in the
latest edition of the ACGIH TLV compilation.” Id. at 24.

The question, then, is whether the 2006 TLV list modified
the HCS. If so, the sixty-day judicial review clock started
running on January 31, 2006—the day the list was
published—and the petition for review would be timely. If not,
then the clock began running in 1987 (at the latest), which
would make the petition twenty years late.

We find the government’s arguments persuasive. The Act
defines an “occupational safety and health standard” as “a
standard which requires conditions, or the adoption or use of one
or more practices, means, methods, operations, or processes,
reasonably necessary or appropriate to provide safe or healthful
employment and places of employment.” 29 U.S.C. § 652(8).
As OSHA points out, the conditions required of regulated parties
changed not at all in 2006. Both before and after publication of
the new TLV list, regulated parties were required to treat as
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hazardous any chemical listed in the then-current version of the
list. Imposed by 29 C.F.R. § 1910.1200(d)(3)(ii), that
requirement has remained unchanged for more than sixty days.
The same is true of the conditions required by the other HCS
provisions referencing the TLV list, the youngest of which dates
from 1987.

NAM asks us to understand the HCS as defining the
conditions required of its members not in terms of a general
obligation to comply with the current TLV list, but more
specifically in terms of the particular chemicals that industry
must treat as hazardous. Yet treating the HCS as prescribing the
particular chemicals for which hazard communications are
required, as opposed to the system for recognizing such
chemicals, would directly contradict the regulatory scheme
OSHA established in 1983. With minor exceptions not relevant
here, the HCS identifies no specific chemicals as hazardous,
instead leaving their evaluation to ACGIH and, in the case of the
one-study rule, to regulated entities themselves. NAM’s
argument for a more specific level of generality would make
sense only if the statutory definition of a “standard” required the
regulation of particular chemicals. But as we noted in Animal
Legal Defense Fund, Inc. v. Glickman, we afford agencies
“broad deference” when “choosing the level of generality at
which to articulate rules.” 204 F.3d 229, 235 (D.C. Cir. 2000).

In sum, because the 2006 amendments to ACGIH’s TLV
list did not modify the HCS and because the HCS has remained
unchanged in relevant respects for approximately twenty years,
NAM’s petition for review is untimely. Cf. Nat’l Tank Truck
Carriers, Inc. v. Fed. Highway Admin., 170 F.3d 203 (D.C. Cir.
1999) (rejecting as untimely petition for review challenging
agency regulation referencing privately created list of
roadworthiness criteria for commercial vehicles). In reaching
this conclusion, we recognize that time limits like the one
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contained in section 655(f) may have no applicability where “the
petitioner lacked a meaningful opportunity to challenge the
agency action during the review period.” Eagle-Picher Indus.,
Inc. v. EPA, 759 F.2d 905, 911 (D.C. Cir. 1985). But given that
NAM failed to argue in its opening brief that it lacked a
meaningful opportunity to challenge the HCS in either 1983 or
1987, we have no need to pass on the applicability of the
exception to this case. At oral argument, NAM did make a stab
at such a claim, but that came too late for us to consider it. See
Power v. Barnhart, 292 F.3d 781, 787 n.5 (D.C. Cir. 2002) (“[I]t
is simply too late to raise [a new argument] for the first time in
oral argument.”). We therefore dismiss the petition for review.

So ordered.