McGOWAN, Circuit Judge:
This direct review proceeding presents a classic case of what Judge Friendly has aptly termed "a new form of uneasy partnership" between agency and court that results whenever Congress delegates decision making of a legislative character to the one, subject to review by the other. Associated Industries v. United States Dept. of Labor, 487 F.2d 342, 354 (2nd Cir. 1973). The angularity of this relationship is only sharpened when, as here, Congress—with no apparent awareness of anomaly—has explicitly combined an informal agency procedure with a standard of review traditionally conceived of as suited to formal adjudication or rulemaking. The federal courts, hard pressed as they are by the flood of new tasks imposed upon them by Congress, surely have some claim to be spared additional burdens deriving from the illogic of legislative compromise. At the least, it would have been helpful if there had been some recognition by Congress that the quick answer it gave to a legislative stalemate posed serious problems for a reviewing court, and that there would inevitably have to be some latitude accorded it to
The petition before us seeks review of standards promulgated by the Secretary of Labor under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., (hereinafter OSHA). The standards in question regulate the atmospheric concentrations of asbestos dust in industrial workplaces. Petitioners are unions whose members are affected by the health hazards of asbestos dust. They challenge the timetable established by the standards for the achievement of permissible levels of concentration, and object to portions of the standards concerning methods of compliance, monitoring intervals and techniques, cautionary labels and notices, and medical examinations and records. We remand two of such issues to the Secretary for further consideration. In all other respects, the petition is denied.
A. The Occupational Safety and Health Act
Technological progress in industry appears not to have been accompanied uniformly by corresponding reductions in the health hazards of industrial working conditions. More than 2.2 million persons are disabled on the job each year, and in 1967 the Surgeon General estimated that approximately 400,000 new cases of occupational disease would occur in each succeeding year.
Foreword, Legislative History of the Occupational Safety and Health Act of 1970 (hereinafter Legis.Hist.).
OSHA, the first comprehensive attempt by Congress to deal with these problems,
OSHA specifies the procedure to be followed in the promulgation of standards, and provides for the establishment of a research institute and the appointment of advisory committees to assist the Secretary.
Asbestos is a generic term applicable to a number of fibrous, inorganic, silicate minerals that are incombustible in air. Its commercial value is high, and its uses are many and varied. Asbestos can be woven into cloth, used in powder form, or incorporated into materials of various shapes and consistencies. Almost one million tons of asbestos are used in this country annually; and, for many purposes, it cannot easily be replaced with other substances.
Unfortunately, asbestos is as hazardous to health as it is useful to industry. During its production and use, tiny asbestos fibers are released as a dust in the air, and, over the course of this century, thousands of workers have been killed or disabled by the effects of inhaling these fibers. There are no precise figures concerning the number of workers involved, but it is estimated that three to five million workers are exposed to some extent to asbestos fibers in the building construction and shipyard industries alone.
C. Proceedings before the Secretary
Within a few months of the effective date of OSHA, petitioners requested the Secretary to establish an emergency standard to control concentrations of asbestos dust.
Petitioners allege no procedural errors in the promulgation of these standards, but they characterize them as inadequate to protect the health of employees as required by the Act. They attack the Secretary's interpretation of OSHA in certain particulars, as well as the enforcement measures he has selected.
OSHA is a self-contained statute in the sense that it does not depend upon reference to the Administrative Procedure Act for specification of the procedures to be followed. It prescribes that the process of promulgating a standard is to be initiated by the publication of a proposed rule. Interested persons are given a period of 30 days thereafter within which to submit written data or comments. Within this period any interested person may submit written objections, and may request a public hearing thereon. In such event, the Secretary shall publish a notice specifying the particular standard involved and stating the time and place of the hearing. Within 60 days after the completion of such hearing, the Secretary shall make his decision. Judicial review by the courts of appeals is provided.
This procedure is characteristic of the informal rulemaking contemplated by Section 4 of the APA, 5 U.S.C. § 553, and it was so understood by the Congress. By regulation, however, the Secretary, although describing it as "legislative in type," has provided that the oral hearing called for in the statute shall contain some elements normally associated with the adjudicatory or formal rule-making model. As indicated in the text of the regulations, set forth in the margin,
The substantial evidence test has customarily been directed to adjudicatory proceedings or formal rulemaking.
One question generated by this anomalous combination is whether the determinations in question here are of the kind to which substantial evidence review can appropriately be applied. The Government in its argument suggested that a proper accommodation could be effected by construing the statute to require substantial evidence review of factual determinations, while weighing the inferences of policy drawn from those facts in terms of their freedom from arbitrariness or irrationality. We do not believe this approach would affect the rigorousness of our review to the extent the Government seems to suppose, or that petitioners purport to fear.
Faced with the fact that his determinations were commanded by Congress to be reviewed under a substantial evidence standard, the Secretary did voluntarily move his procedures significantly towards the formal model. He directed that (1) a qualified hearing examiner should preside over the oral hearing, (2) cross-examination should be permitted, and (3) a verbatim transcript made. The total record in this case was in part created under the conditions that obtain in a formal proceeding. In substantial remaining part, however, it consists of a melange of written statements, letters, reports, and similar materials received outside the bounds of the oral hearing and untested by anything approaching the adversary process.
Thus, in some degree the record approaches the form of one customarily conceived of as appropriate for substantial evidence review. In other respects, it does not. On a record of this mixed nature, when the facts underlying the Secretary's determinations are susceptible of being found in the usual sense, that must be done, and the reviewing court will weigh them by the substantial evidence standard. But, in a statute like OSHA where the decision making vested in the Secretary is legislative in character, there are areas where explicit factual findings are not possible, and the act of decision is essentially a prediction based upon pure legislative judgment, as when a Congressman decides to vote for or against a particular bill.
OSHA sets forth general policy objectives and establishes the basic procedural framework for the promulgation of standards, but the formulation of specific substantive provisions is left largely to the Secretary.
From extensive and often conflicting evidence, the Secretary in this case made numerous factual determinations. With respect to some of those questions, the evidence was such that the task consisted primarily of evaluating the data and drawing conclusions from it. The court can review that data in the record and determine whether it reflects substantial support for the Secretary's findings. But some of the questions involved in the promulgation of these standards are on the frontiers of scientific knowledge, and consequently as to them insufficient data is presently available to make a fully informed factual determination. Decision making must in that circumstance depend to a greater extent upon policy judgments and less upon purely factual analysis.
For example, in this case the evidence indicated that reliable data is not currently available with respect to the precisely predictable health effects of various levels of exposure to asbestos dust; nevertheless, the Secretary was obligated to establish some specific level as the maximum permissible exposure. After considering all the conflicting evidence, the Secretary explained his decision to adopt, over strong employer objection, a relatively low limit in terms of the severe health consequences which could result from over-exposure. Inasmuch as the protection of the health of employees is the overriding concern of OSHA, this choice is doubtless sound, but it rests in the final analysis on an essentially legislative policy judgment, rather than a factual determination, concerning the relative risks of underprotection as compared to overprotection.
Regardless of the manner in which the task of judicial review is articulated, policy choices of this sort are not susceptible to the same type of verification or refutation by reference to the record as are some factual questions. Consequently, the court's approach must necessarily be different no matter how the standards of review are labeled. That does not mean that such decisions escape exacting scrutiny, for, as this court has stated in a similar context:
Automotive Parts & Accessories Ass'n v. Boyd, 132 U.S.App.D.C. 200, 407 F.2d 330, 338 (1968).
We do not understand Congress to have in this instance nullified this approach for all purposes by directing substantial evidence review. As noted above, that provision is important as an indication of how we should approach certain kinds of questions and what kind of record we should demand of the Secretary. But it is surely not to be taken as a direction by Congress that we treat the Secretary's decision making under OSHA as something different from what it is, namely, the exercise of delegated power to make within certain limits decisions that Congress normally makes itself, and by processes, as the courts have long recognized and accepted, peculiar to itself. A due respect for the boundaries between the legislative and the judicial function dictates that we approach our reviewing task with a flexibility informed and shaped by sensitivity to the diverse origins of the determinations that enter into a legislative judgment.
What we are entitled to at all events is a careful identification by the Secretary, when his proposed standards are challenged, of the reasons why he chooses to follow one course rather than another. Where that choice purports to be based on the existence of certain determinable facts, the Secretary must, in
Judge Friendly concluded his ruminations in Associated Industries with an expression of doubt as to "whether judicial review of legislative standards resulting from informal rule-making will ultimately prove to be feasible."
Before addressing the specific challenges made to the Secretary's action, we examine two further problems raised by petitioners involving statutory construction. One has to do with the weight to be accorded by the Secretary to the NIOSH recommendations. The other relates to whether the Secretary may take economic considerations into account.
With respect to the former, the statute directs NIOSH to develop criteria documents that describe safe levels of exposure, and the Secretary is to promulgate standards that insure that employees are protected. The language employed by Congress in these two mandates is essentially identical except that the Secretary must consider elements of feasibility.
The Act merely says that the Director of NIOSH shall immediately forward recommended standards to the Secretary
The Act, or so it seems to us, must be taken as contemplating that the Secretary may consider all of this information as well as that received from NIOSH. Petitioners' argument would restrict the advisory committees and interested parties to comments relating solely to feasibility, a role petitioners themselves clearly—and, we think, legitimately—exceeded at the hearing and in their arguments before this court. The NIOSH recommendation was undoubtedly important in the eyes of Congress as an aid to the Secretary, but we cannot see that it was intended as more than that.
In connection with the second issue, we note that the statutory authority for the promulgation of standards reads in relevant part:
29 U.S.C. § 655(b)(5) (emphasis supplied).
The standards as promulgated retain the concentration level specified by the temporary emergency standard until 1976 when a lower permanent standard becomes effective. The Secretary explained his decision to delay, two years longer than the period suggested by NIOSH, implementation of the tougher standard as "necessary to allow employers to make the needed changes for coming into compliance," and petitioners argue that the Secretary improperly considered economic factors in reaching this conclusion. We conclude that the factors entering into the Secretary's conclusion could properly include problems of economic feasibility.
There can be no question that OSHA represents a decision to require safeguards for the health of employees even if such measures substantially increase production costs. This is not, however, the same thing as saying that Congress intended to require immediate implementation of all protective measures technologically achievable without regard for their economic impact. To the contrary, it would comport with common usage to say that a standard that is prohibitively expensive is not "feasible."
S.Rep.No.91-1282, 91st Cong., 2d Sess., at 58; Legis.Hist. at 197.
The thrust of these remarks would seem to be that practical considerations can
This qualification is not intended to provide a route by which recalcitrant employers or industries may avoid the reforms contemplated by the Act. Standards may be economically feasible even though, from the standpoint of employers, they are financially burdensome and affect profit margins adversely. Nor does the concept of economic feasibility necessarily guarantee the continued existence of individual employers. It would appear to be consistent with the purposes of the Act to envisage the economic demise of an employer who has lagged behind the rest of the industry in protecting the health and safety of employees and is consequently financially unable to comply with new standards as quickly as other employers.
With the aid of the foregoing analytic background of the procedural and substantive provisions of the Act, we turn to the specific objections raised by petitioners to the standards.
1. Effective Date for the Two Fiber Standard
The most important aspect of setting the standards was the determination of an acceptable dust concentration level. Under the emergency standards, the eight hour time-weighted average airborne concentration of asbestos dust had been limited to five fibers greater than five microns in length per milliliter of air (hereinafter "the five fiber standard"). 36 F.R. 23207, 23208.
Industry representatives testified that they simply could not reduce concentrations to the two fiber level in the foreseeable future. In the course of formulating its proposal, NIOSH had undertaken a limited analysis of industry's capacity to comply and had recommended delaying the effective date of the two fiber standard for two years, i. e., July 1, 1974. The Secretary decided to retain the five fiber standard for approximately four years (July 1, 1976) before requiring the reduction to two fibers, in order to give employers time to prepare for the lower limit. Petitioners assert that the four year delay permitted by the Secretary is too long because (1) the health of employees is endangered thereby, and (2) employers do not need that much time.
a. Health Hazards Occasioned by the Delay
The Secretary solicited the views of several experts on the question of the predictable health effects of maintaining a five fiber standard until 1976. The experts differed sharply in some of their opinions, but their responses are generally cautious and reflect deficiencies in available data concerning the relationship between exposure to absestos dust and the likelihood of disease. The record indicates that no precise prediction of increased harm can be made at this time.
The Secretary must establish those standards that most adequately insure that no employee will suffer material impairment of health. We cannot say, on the basis of the conflicting testimony in the record, that the Secretary erred in his prediction of the health effect of the four year delay,
b. Industrial Compliance Capability
The evidence indicates that significant inter-industry, as well as intra-industry, differences exist concerning the time needed by employers to meet a two fiber standard. Within particular industries the concentration levels at some
Despite this recommendation and the evidence of these differences, the Secretary issued a single uniform effective date for all employers in all industries. He explained this decision as follows:
We cannot say on this record that an attempt to assign differing effective dates to employers within an industry based on the time needed by each employer to alter his plant would be practicable. However, insofar as inter-industry differences are concerned, those reasons of practical administration are neither explained nor readily apparent.
Government counsel suggested at oral argument that the Secretary possessed insufficient information at the time of formulation of the standards to differentiate among industries. That may be true, but it is unclear whether the lack of information is a cause or result of the Secretary's approach. When the Secretary sought opinions concerning compliance capabilities, the responses suggested that some industries could comply almost immediately, some could comply within two years, and some might require longer. The lack of more specific information may be partially attributable to the Secretary's failure to seek it. The record reflects little, if any, effort to cross-examine industry witnesses on this point, and, notwithstanding their insistence that a two fiber standard was not practicable, such questioning might have elicited some information pertinent to inter-industry distinctions.
Separate standards for different industries would not appear to create opportunities for employers in one industry to challenge their standards on the grounds that standards for another industry were less demanding. The only relevant question would be whether the time schedule established for each industry was feasible for that industry;
It may be that the task of devising categories and classifying employers by industry would be unmanageable in view of the many diverse uses of asbestos. However, there is no evidence to that effect in the record, and it is not for the court to guess at the Secretary's reasoning or to supply justifications for his action. We have noted his cryptic reference to "reasons of practical administration," but, insofar as inter-industry distinctions are concerned, those reasons are not self-evident. Therefore, we remand this aspect of the standards to the Secretary for clarification or reconsideration.
2. Monitoring Requirements
Within six months of publication of the standards, all employers are required to monitor workplaces to determine whether the concentrations of asbestos dust are within the allowable limits; thereafter, monitoring must in all cases be of such pattern and frequency as to identify accurately the levels of exposure. Monitoring must occur no less frequently than once every six months where the concentrations may reasonably be foreseen to exceed the standards. Petitioners object that these provisions are inadequate to protect the health of employees.
The monitoring provisions are especially important because the results of that process often determine when and what protective measures are required.
Periodic monitoring is important to insure that concentration levels have not been allowed to increase since the initial monitoring. Further, monitoring techniques may not be entirely uniform,
Some jobs pose particularly difficult monitoring problems, and petitioners argue that monitoring once every six months is inadequate to control such situations effectively.
Petitioners seem to fear that, because of the imprecise language of this requirement, the six months maximum interval between monitoring samples will in practice become the minimum as well, and they consider that inappropriate. The imprecision is perhaps unavoidable, however, in view of the multitude of diverse industrial situations involved. The most effective manner in which to deal with problems of this sort would appear to be to invoke the procedures for detecting and correcting violations in particular workplaces.
3. Methods of Compliance—Scope of Applicability
The Act specifies particular methods of compliance that must be employed in order to meet concentration levels, but there is some ambiguity as to the situations in which those provisions are operative. Part of this uncertainty stems from the following sentence quoted from the initial monitoring requirement:
29 C.F.R. 1910.93a(f)(1).
Petitioners fear, and the Government brief seems to suggest, that this language restricts applicability of the provisions concerning methods of compliance to those situations in which the initial monitoring reflected a violation. Those provisions are not by their terms so restricted, nor does an examination of this language suggest that they were meant to be. They state broadly, for example, that engineering controls "shall be used to meet the exposure limits . . . ." The provision dealing with particular tools states:
29 C.F.R. 1910.93a(c)(1)(iii) (emphasis supplied).
The modifying clause italicized above would hardly seem necessary if this provision applied only to those workplaces where a violation has already been
Specific control measures can be used not only to correct violations that have been discovered but also as a supplement to the monitoring procedure. Whether monitoring detects impermissible concentrations of asbestos dust in a particular workplace may depend upon when and how the sample is taken. The danger that hazardous conditions will consequently exist undetected and unremedied can be reduced by requiring that certain objective control measures be employed as well. Whereas monitoring requires skilled technicians, anyone, including a labor union representative, could determine whether exhaust fans or wet handling methods were being employed.
For these reasons, we do not construe the methods of compliance provisions as being applicable only in those instances in which a violation has already been detected. Although the terms of those provisions are often sufficiently broad to allow considerable flexibility in the choice of methods, they are generally applicable to all workplaces covered by the asbestos standards.
4. Use of Moisturization as a Control Method
The standards require that asbestos be moisturized before being handled and worked to avoid creating dust "unless the usefulness of the product would be diminished thereby."
Moisturization is effective and is subject neither to the uncertainties of monitoring nor to the technical problems of malfunction and repairs incident to dust collection and exhaust systems. The Secretary recognized these advantages and required that this method be employed where practicable, but left to the employer the opportunity to seek other methods in some circumstances. This solution seems to accommodate as nearly as possible the interests of safety and efficiency. Petitioners' objection is that flexibility is again achieved by relying on a judgment by the employer. Although we can understand the concern on the part of labor representatives in a matter of this sort, it is too early in the history of this statute to presume that employers will not make a good faith effort to comply.
Further, this aspect of the Secretary's standards is consistent with the general Congressional scheme. OSHA applies to an estimated 4 million employers and 57 million employees, but the Secretary has only about 600 inspectors and 100 industrial hygienists. In this situation some reliance on self-policing by employers is clearly necessary. Although this self-regulatory aspect of the statute would make specific, objective standards desirable, devising standards of this sort that will be generally applicable to thousands
5. Labels and Warnings
In order to insure that employees handle materials likely to produce asbestos dust carefully and to prevent persons from entering areas where they will be exposed to such dust needlessly, cautionary labels and warning signs are required by the Secretary's standards. Petitioners assert that the language selected by the Secretary is not strong enough for these purposes, and they have suggested alternatives that they consider better suited to the task.
6. Medical Examinations
The standards require that all employers provide a medical examination (1) when an employee is first assigned to a job involving exposure to asbestos, (2) when he leaves that job, and (3) annually during his employment in the position. Petitioners do not attack this timetable or the substantive requirements governing the nature of the examination, but they do assert that the examinations should be given by a physician of the employee's choice, and that
Petitioners argue that the standards violate the principle of physician/patient confidentiality because they would allow the physical examinations to be conducted by company doctors and would make the results available to the employer. Confidentiality is necessary, they argue, to avert the possibility that, in hiring and discharging employees, employers will discriminate against those with symptoms of asbestos-related disease or prior histories of exposure to asbestos dust. The Secretary recognized this potential problem, and stated that uses of the records would be scrutinized carefully. However, he did not consider the possibility of such abuse sufficient to outweigh the opposing considerations.
The standards require the employer to take into consideration the result of an employee's most recent physical examination in making assignments to jobs requiring the use of respirators. An employee who cannot safely perform such a job is to be reassigned without loss of seniority or wages. The Secretary reasoned that the salutary purposes of this provision could not be fulfilled if employers were denied access to the medical records.
Since the results are to be made available to the employer, allowing the employer to select the physician has the advantages of both convenience and efficiency. Some employers already maintain an industrial medical staff skilled in dealing with asbestos-related medical problems,
5. The Recordkeeping Requirements
Many of the problems the Secretary faced in establishing standards regarding asbestos dust were directly attributable to the lack of reliable information concerning asbestos-related diseases. The Act attempts to correct this deficiency by requiring that:
29 U.S.C. § 657(c)(1).
Under the standards promulgated by the Secretary to implement this provision of the statute, employers must retain for twenty years records of each employee's required medical examinations. The standards also require that employers
Petitioners challenge both requirements as inadequate to protect the health of employees and to advance the present state of knowledge in this area. They argue that, in view of the long latency period associated with many asbestos-related diseases, all records, beginning with initial exposure and continuing throughout the life of each employee, should be retained. Since the recordkeeping requirements for medical examinations and monitoring differ not only in retention period but also in purpose, we treat each separately and reach different conclusions with regard to the two standards.
a. Medical Records
Records of an employee's prior physical examinations may assist a physician in the detection, diagnosis and treatment of that employee's illnesses. Although completeness would be desirable, it may be that the most critical medical records are the most recent ones, perhaps reflecting the examinations of the past two to five years.
Records of past medical examinations may also be useful in research; for example, they may facilitate the plotting of the longitudinal course of disease or the evaluation of the long-term effects of various levels of exposure to asbestos fibers. These purposes might require a longer retention period than would often be critical for treatment of particular patients; however, even for research, records of some effects of exposure are detectable in the examinations.
Further, we note that twenty years simply marks the minimum time which records must be maintained by employers. If retention is required for a longer period of time for purposes of research, the research organization can obtain copies of the records from the employer and keep them. The standards require an employer to supply these records to the Government upon request, and the twenty year period appears reasonably adequate for these purposes. This arrangement seems most practical since the records of every employee may not be needed for research. Ordinarily, sampling techniques would be employed to select limited numbers of representative records. After research groups have had a reasonable opportunity to obtain the records, and once the other records have been digested in statistical summaries, the remaining records arguably are of little utility.
b. Records of Exposure Levels Detected by Monitoring
The three year retention period for the monitoring records seems surprisingly short in comparison to the twenty years requirement for medical records— especially in view of their respective functions. Whereas the medical records of primary importance may be those beginning with the first manifestations of a disorder, a complete record of an employee's history of exposure to asbestos prior to the development of disease
37 F.R. 11318.
For this reason, in the proceedings before the Advisory Committee two members of the committee suggested that a twenty year period for exposure records and a five year requirement for medical records would be appropriate.
The Secretary did not explain his decision to require only a three year retention period for exposure records, but the Government has suggested several justifications in its brief. Passing over the problem of considering a rationale advanced by counsel rather than by the Secretary, we have examined those arguments and conclude they do not adequately clarify the Secretary's action.
The Government notes that the Act specifies that citations for violations must be issued within six months of the occurrence of the violation. Thus it would appear that a period of three years is more than adequate for enforcement purposes. This argument is accurate, but it does not speak to the Secretary's obligation under OSHA to require retention of those records necessary to develop information concerning the causes of disease.
The second justification offered is that it is the responsibility of NIOSH, the Secretary, and HEW to collect the exposure data necessary to re-evaluate the standards. 29 U.S.C. §§ 671, 673. Employers must supply records on request,
A single permanent storage center for all these records might well be the best solution. Since employees may change jobs and employers may cease operations, continuity may be best achieved if the agency collects and retains the records.
Brief for Respondents at 50 n. 35.
As noted above, data concerning prior exposure is considered very important in
The Secretary has provided no explanation of the relatively short retention period for monitoring results, and we find no adequate assurance in the record that the requirement as promulgated will provide the data needed for research into the causes and prevention of asbestos related disease. Consequently, we remand the recordkeeping requirements to the Secretary for such modification or clarification as may be necessary to insure that the statutory objectives will be fulfilled.
Except for the remand we order for reexamination of (1) the uniform application of the 1976 effective date for the two fiber standard and (2) the three year retention period for monitoring records, the petition for review is denied. All of the challenged features of the standards appear to partake of an essentially legislative type of decision making by the Secretary in the performance of the broad delegation made to him by Congress. Had any one of these decisions been made in the first instance by Congress itself and embodied in the statute, its vulnerability to judicial scrutiny would have been dubious indeed. In this context, therefore, judicial review inevitably runs the risk of becoming arbitrary supervision and revision of the Secretary's efforts to effectuate the legislative purposes in an area where variant responses might each be legitimate in the sight of Congress.
What, in our view, differentiates the two provisions we have remanded from those we have left untouched is that the record, examined closely in relation to the relevant concerns of the Act, leaves nagging questions—even for the inexpert observer—as to the reason and rationale for the Secretary's particular choices. However the statutory standard for our review may be characterized, we consider that our dispositions fall within it.
Petitioners have not challenged the propriety of this formulation.
In a paper presented to the 1974 Judicial Conference of this Circuit, to be published in due course as part of the proceedings, Professor Roy Schotland, of the Georgetown University Law Center, has emphasized the degree to which the success of the partnership turns on clear thinking about the scope of the review to be afforded by the judicial member. Professor Schotland's useful perceptions are many, but none more so than his reminder that the concept of scope of review defies generalized application, and demands, instead, close attention to the nature of the particular problem faced by the agency.
with 29 U.S.C. § 655(b)(5):
Dr. Key, the Director of NIOSH, did not respond in terms of particular industries, but he did say that some plants could reach a two fiber standard before 1976, and that they should be required to do so.
By listing these responses we do not mean to suggest any opinion as to the accuracy of these predictions. The record at present contains little data from which to draw such a conclusion.
29 C.F.R. § 1910.93(b)(3).
29 U.S.C. § 655(b)(7).
The caution signs required by the standards read:
The language favored by intervenors would use the terms "Danger" and "Warning" and would make specific mention of particular health hazards such as cancer and asbestosis.