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Federal Register / Vol. 86, No. 116 / Monday, June 21, 2021 / Rules and Regulations
federal agencies. Chao v. Mallard Bay Drilling, Inc., 534 U.S. 235, 241 2002.
The OSH Act reflects Congresss determination that the costs of compliance with the Act and OSHA
standards are part of the cost of doing business and OSHA may foreclose employers from shifting those costs to employees. See Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 514
1981; Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 123940 9th Cir. 1984;
see also Secy of Labor v. Beverly Healthcare-Hillview, 541 F.3d 193 3d Cir. 2008. Furthermore, the Act and its legislative history both demonstrate unmistakably OSHAs authority to require employers to temporarily remove workers from the workplace to prevent exposure to a health hazard.
United Steelworkers of Am., 647 F.2d at 1230.
The OSH Act states that the Secretary shall issue an emergency temporary standard ETS if he finds that the ETS
is necessary to address a grave danger to workers. See 29 U.S.C. 655c. In particular, the Secretary shall provide, without regard to the requirements of chapter 5, title 5, United States Code, for an emergency temporary standard to take immediate effect upon publication in the Federal Register if he determines that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and that such emergency standard is necessary to protect employees from such danger. 29 U.S.C.
655c1.
A separate section of the OSH Act, section 8c, authorizes the Secretary to prescribe regulations requiring employers to make, keep, and preserve records that are necessary or appropriate for the enforcement of the Act. 29 U.S.C.
657c1. Section 8c also provides that the Secretary shall require employers to keep records of, and report, workrelated deaths and illnesses. 29 U.S.C.
657c2.
The ETS provision, section 6c1, exempts the Secretary from procedural requirements contained in the OSH Act and the Administrative Procedure Act, including those for public notice, comments, and a rulemaking hearing.
See, e.g., 29 U.S.C. 655b3; 5 U.S.C.
552, 553. For that reason, ETSs have been referred to as the most dramatic weapon in OSHAs arsenal. Asbestos Info. Assn/N. Am. v. OSHA, 727 F.2d 415, 426 5th Cir. 1984.
The Secretary must issue an ETS in situations where employees are exposed to a grave danger and immediate action is necessary to protect those employees from such danger. 29 U.S.C.

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655c1; Pub. Citizen Health Research Grp. v. Auchter, 702 F.2d 1150, 1156
D.C. Cir. 1983. The determination of what exact level of risk constitutes a grave danger is a policy consideration that belongs, in the first instance, to the Agency. Asbestos Info.
Assn, 727 F.2d at 425 accepting OSHAs determination that eighty lives at risk over six months was a grave danger; Indus. Union Dept, AFLCIO v.
Am. Petroleum Inst., 448 U.S. 607, 655
n.62 1980. However, a grave danger represents a risk greater than the significant risk that OSHA must show in order to promulgate a permanent standard under section 6b of the OSH
Act, 29 U.S.C. 655b. Intl Union, United Auto., Aerospace, & Agr.
Implement Workers of Am., UAW v.
Donovan, 590 F. Supp. 747, 75556
D.D.C. 1984, adopted, 756 F.2d 162
D.C. Cir. 1985; see also Indus. Union Dept, AFLCIO, 448 U.S. at 640 n.45
noting the distinction between the standard for risk findings in permanent standards and ETSs.
In determining the type of health effects that may constitute a grave danger under the OSH Act, the Fifth Circuit emphasized the danger of incurable, permanent, or fatal consequences to workers, as opposed to easily curable and fleeting effects on their health. Fla. Peach Growers Assn, Inc. v. U.S. Dept of Labor, 489 F.2d 120, 132 5th Cir. 1974. Although the findings of grave danger and necessity must be based on evidence of actual, prevailing industrial conditions, see Intl Union, 590 F. Supp. at 751, OSHA
need not wait for deaths to occur before promulgating an ETS, see Fla. Peach Growers Assn., 489 F.2d at 130. When OSHA determines that exposure to a particular hazard would pose a grave danger to workers, OSHA can assume an exposure to a grave danger wherever that hazard is present in a workplace.
Dry Color Mfrs. Assn, Inc. v.
Department of Labor, 486 F.2d 98, 102
n.3 3d Cir. 1973. In demonstrating that an ETS is necessary, the Fifth Circuit considered whether OSHA had shown that there were no other means of addressing the risk than an ETS.
Asbestos Info. Assn, 727 F.2d at 426
holding that necessity had not been proven where OSHA could have increased enforcement of alreadyexisting standards to address the grave risk to workers from asbestos exposure.
On judicial review of an ETS, OSHA
is entitled to great deference on the determinations of grave danger and necessity required under section 6c1.
See, e.g., Pub. Citizen Health Research Grp., 702 F.2d at 1156; Asbestos Info.
Assn, 727 F.2d at 422 judicial review
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of these legislative determinations requires deference to the agency; cf.
American Dental Assn v. Martin, 984
F.2d 823, 831 7th Cir. 1993 the duty of a reviewing court of generalist judges is merely to patrol the boundary of reasonableness. These determinations are essentially legislative and rooted in inferences from complex scientific and factual data. Pub. Citizen Health Research Grp., 702 F.2d at 1156. The agency is not required to support its conclusions with anything approaching scientific certainty and has the prerogative to choose between conflicting evidence. Indus. Union Dept, AFLCIO, 448 U.S. at 656;
Asbestos Info. Assn, 727 F.2d at 425.
The determinations of the Secretary in issuing standards under section 6 of the OSH Act, including ETSs, must be affirmed if supported by substantial evidence in the record considered as a whole. 29 U.S.C. 655f. The Supreme Court described substantial evidence as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
Am. Textile Mfrs. Inst., 452 U.S. at 522
23 quoting Universal Camera Corp. v.
NLRB, 340 U.S. 474, 477 1951. The Court also noted that the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agencys finding from being supported by substantial evidence. Am. Textile Mfrs. Inst., 452
U.S. at 523 quoting Consolo v. FMC, 383 U.S. 607, 620 1966. The Fifth Circuit, recognizing the size and complexity of the rulemaking record before it in the case of OSHAs ETS for organophosphorus pesticides, stated that a courts function in reviewing an ETS to determine whether it meets the substantial evidence standard is basically to determine whether the Secretary carried out his essentially legislative task in a manner reasonable under the state of the record before him. Fla Peach Growers Assn., 489
F.2d at 129.
Although Congress waived the ordinary rulemaking procedures in the interest of permitting rapid action to meet emergencies, section 6e of the OSH Act, 29 U.S.C. 655e, requires OSHA to include a statement of reasons for its action when it issues any standard. Dry Color Mfrs., 486 F.2d at 10506 finding OSHAs statement of reasons inadequate. By requiring the agency to articulate its reasons for issuing an ETS, the requirement acts as an essential safeguard to emergency temporary standard-setting. Id. at 106.
However, the Third Circuit noted that it did not require justification of every substance, type of use or production
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