ON PETITION FOR REVIEW OF ACTION OF THE ASSISTANT SECRETARY OF LABOR FOR OCCUPATIONAL SAFETY AND HEALTH.
Staley, Gibbons and Weis, Circuit Judges.
This case is before the court upon petition to review an order of the Assistant Secretary of Labor for Occupational Safety and Health, published on January 29, 1974, 39 Fed. Reg. 3756, issuing permanent occupational health standards which regulate, inter alia, employee exposure to solid or liquid mixtures containing one percent or more of ethyleneimine ("EI"). See 29 C.F.R. § 1910.93lc.*fn1 This court has jurisdiction to review and set aside these standards pursuant to § 6(f) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 655(f) ("Act").
The standards in question are part of a group of permanent standards simultaneously issued pursuant of § 6(b) of the Act. 29 U.S.C. § 655(b). They were derived from similar emergency temporary standards issued on May 3, 1973, 38 Fed. Reg. 10929. This court has previously vacated and remanded to the Occupational Safety and Health Administration ("OSHA") the temporary standards in so far as they applied to EI and one other chemical. Dry Color Manufacturers' Association, Inc. v. Department of Labor, 486 F.2d 98 (C.A. 3, 1973). We must now consider the permanent standards relating to EI.
On review the petitioners request that the court set aside OSHA's standards applicable to EI. They challenge the validity of the standards on three principal grounds. They maintain that there is not substantial evidence to show that EI is carcinogenic; that the record does not support the particular EI standards; and that the Secretary failed to make sufficient findings of fact or to provide sufficient statements of reasons for the standards.
We deal first with the petitioners' last contention. Subsection 6(e) of the Act provides:
"Whenever the Secretary promulgates any standard, . . . he shall include a statement of the reasons for such action, which shall be published in the Federal Register." 29 U.S.C. § 655(e).
As this court has previously stated, to satisfy subsection 6(e) the statement of reasons should indicate which data in the record is being relied upon, why that data shows the substances regulated are harmful, and why the particular standards were chosen. Dry Color Manufacturers' Assn., Inc. v. Department of Labor, 486 F.2d at 106. In that case a temporary emergency standard for the control of EI was invalidated by this court because the Secretary, in promulgating it, had not provided an adequate statement of reasons.
In the instant case, the statement of reasons offered by OSHA, published January 29, 1974, 39 Fed. Reg. 3756, consisted in part of the finding that EI was potentially carcinogenic to humans. In addition, according to OSHA, the case for EI's carcinogenicity rested on the extrapolation to humans of the findings of two animal studies. The Secretary justifies such extrapolation on the basis of the April 22, 1970 Report of the Ad Hoc Committee on the Evaluation of Low Levels of Environmental Chemical Carcinogens to the Surgeon General. We have carefully examined the statements as well as those relating to the adopted standards themselves and conclude that they satisfy the requisites of subsection 6(e). We turn now to a consideration of the evidence in the record.
Subsection 6(f) directs courts reviewing a standard that "the 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). See Industrial Union Department, AFL-CIO v. Hodgson, 499 F.2d 467 (C.A.D.C. 1974); Associated Industries of New York State, Inc. v. United States Department of Labor, 487 F.2d 342 (C.A. 2, 1973). We find it extraordinarily difficult to apply this standard in this case. Section 6(a) of the Act directs the Secretary of Labor to promulgate by rule an occupational safety or health "standard which assures the greatest protection of the safety or health of the affected employees." 29 U.S.C. § 655(a). Section 6(b)(5) of the Act, 29 U.S.C. § 655(b)(5) directs that
"The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents . . . shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life."
Because the Dry Color case turned on noncompliance with § 6(e), it did not present us with an occasion to discuss the standard for review of informal rule making by the Secretary under the Act. ...