American Iron and Steel Institute v. Occupational Safety and Health Administration

To expedite the establishment of safety and health standards for the workplace, § 6(a) of the Occupational Safety and Health Act of 1970 (act) authorized the Occupational Safety and Health Administration (OSHA) (defendant) to adopt national consensus standards as federal standards without notice-and-comment rulemaking. The following year, pursuant to § 6(a), OSHA promulgated an initial respiratory-protection standard, part of which came to be known as the hierarchy-of-controls policy. The hierarchy-of-controls policy prioritized engineering controls that would eliminate or stop airborne contaminants at the source over the use of respirators in the workplace. The policy allowed respirators to be used only if effective engineering controls were not feasible or if engineering controls were also being instituted. OSHA’s authority under § 6(a) to adopt national consensus standards as federally mandated expired in 1973, but the hierarchy-of-controls policy remained in effect. In 1998, OSHA promulgated, through notice-and-comment rulemaking, a new respiratory-protection standard that comprehensively revised the 1971 manner-and-conditions rules for respirator use. The new standard focused on appropriate measures for employers to take with respect to respirator use. OSHA did not reconsider or accept comment on the hierarchy-of-controls policy. The American Iron and Steel Institute (industry) (plaintiff) sought judicial review of the new standard. The litigation was consolidated with cases brought by other industry and labor organizations challenging different aspects of the standard. Because the hierarchy-of-controls policy was adopted as part of a § 6(a) standard and was not subjected to the scrutiny of notice-and-comment procedures, the industry argued that OSHA should not be allowed to exclude that policy from its comprehensive review of the original standard. The industry also contended that factual circumstances had changed since 1971 and that modern respirators were potentially as effective as engineering controls.