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North America's Building Trades Unions v. Occupational Safety & Health Administration

United States Court of Appeals, District of Columbia Circuit

December 22, 2017

North America's Building Trades Unions, Petitioner
Occupational Safety & Health Administration and United States Department of Labor, Respondents Chamber of Commerce of the United States of America, et al., Intervenors

          Argued September 26, 2017

         On Petitions for Review of a Final Rule of the Occupational Safety & Health Administration

          William L. Wehrum and Bradford T. Hammock argued the cause for the Industry Petitioners. Susan F. Wiltsie, David Craig Landin, Tressi L. Cordaro, Michael B. Schon and Linda E. Kelly were with them on brief. Elizabeth C. Chandler Clements entered an appearance.

          J. Michael Connolly argued the cause for the Petitioners-Intervenors Chamber of Commerce of the United States, et al. William S. Consovoy, Steven P. Lehotsky and Sheldon B. Gilbert were with him on brief.

          Jeremiah A. Collins and Victoria L. Bor argued the cause for the Union Petitioners. Randy S. Rabinowitz, Lynn K. Rhinehart, Richard J. Brean and Ava Barbour were with them on brief. Stephen A. Yokich entered an appearance.

          Kristen M. Lindberg and Lauren S. Goodman, Senior Attorneys, and Louise McGauley Betts, Attorney, United States Department of Labor, argued the cause for the Respondents. On brief were Nicholas C. Geale, Acting Solicitor of Labor, Heather R. Phillips, Counsel for Appellate Litigation, Nathaniel I. Spiller, Counsel for Health Standards, and Anne R. Godoy and Allison G. Kramer, Senior Attorneys.

          Victoria L. Bor argued the cause for the Respondents-Intervenors. Jeremiah A. Collins, Randy S. Rabinowitz, Lynn K. Rhinehart, Richard J. Brean and Ava Barbour were with her on brief.

          William L. Wehrum, Susan F. Wiltsie, David Craig Landin, Bradford T. Hammock, Tressi L. Cordaro and Linda E. Kelly were on brief for the Industry Respondent-Intervenors.

          Lisa W. Jordan was on brief for the amici curiae The American Thoracic Society, et al. in support of the respondent. Adam Babich entered an appearance.

          Before: Garland, Chief Judge, and Henderson and Tatel, Circuit Judges.

          Per Curiam.

         Respirable crystalline forms of silica, [1] a compound made of silicon and oxygen, are commonly found in workplaces with rock, sand, gravel, concrete, and brick. Exposure to silica is one of the oldest known occupational hazards. And the health effects of exposure to silica-most commonly silicosis, a progressive and irreversible lung disease caused by the inflammatory effects of silica-are not a thing of the past. "Currently, silicosis is the most prevalent chronic occupational disease in the world." Robbins & Cotran, Pathologic Basis of Disease 690 (9th ed. 2015).

         In the United States, more than two million workers are currently exposed to some level of silica. In 2016, the Occupational Safety and Health Administration (OSHA), an agency within the United States Department of Labor, published a final rule regulating workplace exposure to silica. Occupational Exposure to Respirable Crystalline Silica, 81 Fed. Reg. 16, 285 (Mar. 25, 2016) (codified at 29 C.F.R. Pts. 1910, 1915, and 1926) (Silica Rule or Rule). Petitions to review the Rule came from both sides; a collection of industry petitioners (Industry) believes OSHA impermissibly made the Rule too stringent and several union petitioners (Unions) believe OSHA improperly failed to make the Rule stringent enough.

         Industry petitioned for review of five issues: (1) whether substantial evidence supports OSHA's finding that limiting workers' silica exposure to the level set by the Rule reduces a significant risk of material health impairment; (2) whether substantial evidence supports OSHA's finding that the Rule is technologically feasible for the foundry, hydraulic fracturing, and construction industries; (3) whether substantial evidence supports OSHA's finding that the Rule is economically feasible for the foundry, hydraulic fracturing, and construction industries; (4) whether OSHA violated the Administrative Procedure Act (APA) in promulgating the Rule; and (5) whether substantial evidence supports two ancillary provisions of the Rule-one that allows workers who undergo medical examinations to keep the results confidential from their employers and one that prohibits employers from using dry cleaning methods unless doing so is infeasible. We reject all of Industry's challenges.

         The Unions petitioned for review of two parts of the Rule: (1) the requirement that medical surveillance for construction workers be provided only if the employee has to wear a respirator for 30 days for one employer in a one-year period; and (2) the absence of medical removal protections. We reject the Unions' challenge to the construction standard's 30-day trigger for medical surveillance. We conclude that OSHA failed to adequately explain its decision to omit medical removal protections from the Rule and remand for further consideration of the issue.

         I. BACKGROUND

         The Occupational Safety and Health Act (OSH Act) authorizes the Secretary of Labor (Secretary) to "promulgate, modify, or revoke any occupational safety or health standard, " 29 U.S.C. § 655(b), by requiring conditions or the adoption of practices, means, or methods "reasonably necessary or appropriate to provide safe or healthful employment and places of employment, " id. § 652(8). If the standard applies to toxic materials or harmful physical agents, the Secretary "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" regulated by the standard "for the period of his working life." Id. § 655(b)(5). The Secretary has delegated his authority to OSHA. See 72 Fed. Reg. 31, 160 (June 5, 2007).

         In 1971, OSHA adopted a standard regulating exposure to a variety of substances, including silica. Occupational Safety and Health Standards; National Consensus Standards and Established Federal Standards, 36 Fed. Reg. 10, 466 (May 29, 1971). The 1971 rule established a permissible exposure limit (PEL)-a time-weighted average of a worker's exposure during a workday-of 100 micrograms per cubic meter (µg/m3) in general industry[2] and 250 µg/m3 in the construction industry. See 81 Fed. Reg. at 16, 294. In the 1990s, OSHA studied the efficacy of the 1971 rule regarding silica-related health effects in the workplace and concluded a new rule was needed. See id. at 16, 295.

         In 2016, OSHA promulgated its final Silica Rule. 81 Fed. Reg. 16, 285. The Rule lowers the PEL to 50 µg/m3 for all covered industries, including as particularly relevant here, the foundry, hydraulic fracturing, brick, and construction industries. See 29 C.F.R. §§ 1910.1053(c), 1926.1153(d)(1). Employers must assess silica exposure levels in the workplace (or, for certain construction industry tasks, adopt specific "safe-harbor" practices) and, if necessary, must implement engineering and work practice controls to keep exposures below the PEL. Id. §§ 1910.1053(f)(1), 1926.1153(c)(1), 1926.1153(d)(3)(i). If engineering and work practice controls cannot reduce exposures to the PEL, the employer must use controls to the extent feasible and provide supplementary respirator protections. Id.

         The Silica Rule also establishes various ancillary provisions including, again, as relevant here, housekeeping requirements and medical surveillance requirements. Under the challenged housekeeping provision, employers are prohibited from using dry sweeping methods to clean worksites if doing so could contribute to employee exposure to silica unless wet cleaning methods are infeasible. Id. §§ 1910.1053(h)(1), 1926.1153(f)(1). Under the challenged medical surveillance provisions, employers must provide medical screening to silica-exposed workers if certain conditions are met. Most of the information from the medical examinations, including medical professionals' recommendations limiting the employee's exposure to silica, are confidential and cannot be released to the employer unless the employee authorizes disclosure. Id. §§ 1910.1053(i)(6), 1926.1153(h)(6). Finally, the Rule provides no medical removal protections to workers whose doctors recommend either permanent or temporary removal from silica exposure on the job.

         Different compliance dates were established for each industry: June 23, 2017 for the construction industry, id. § 1926.1153(k); June 23, 2018 for the foundry industry, id. § 1910.1053(l); and June 23, 2021 for the hydraulic fracturing industry, id.

         II. ANALYSIS

         We first decide Industry's challenges. In order, we address OSHA's significant risk findings, its technological feasibility findings, its economic feasibility findings, the procedural regularity of the Rule, and the challenged ancillary provisions. The substantive issues are governed by the "substantial evidence" standard, 29 U.S.C. § 655(f), under which we require OSHA to "identify relevant factual evidence, to explain the logic and the policies underlying any legislative choice, to state candidly any assumptions on which it relies, and to present its reasons for rejecting significant contrary evidence and argument, " United Steelworkers of America v. Marshall (Lead I), 647 F.2d 1189, 1207 (D.C. Cir. 1980). The APA governs the procedural challenge to ensure the Rule is not promulgated "without observance of procedure required by law." 5 U.S.C. § 706(2)(D).

         We then turn to the Unions' challenges and address the 30-day medical surveillance trigger in the construction standard and the lack of medical removal protections in the general industry standard. Where the Unions have failed to identify evidence that their proposals would be feasible and generate more than a de minimis benefit to worker health, we reject them. See Building & Construction Trades Department, AFL-CIO v. Brock (Asbestos), 838 F.2d 1258, 1271 (D.C. Cir. 1988). Where the Unions have met this initial burden, we ask whether OSHA has supported its decision with substantial evidence and otherwise engaged in reasoned decisionmaking.

         A. Significant Risk

         Before OSHA promulgates any permanent health or safety standard, it must make a "threshold finding" that "it is at least more likely than not that long-term exposure" to the regulated substance at current exposure levels "presents a significant risk of material impairment" that "can be eliminated or lessened by a change in practices." Industrial Union Department, AFL-CIO v. American Petroleum Institute (Benzene), 448 U.S. 607, 642, 653 (1980) (plurality).[3] The Supreme Court has provided the guidepost that OSHA follows: a one-in-a-thousand risk that exposure to the regulated substance will be fatal can reasonably be considered significant but a one-in-a-billion risk is likely not significant. Id. at 655-56.

         OSHA must support its significant risk finding with substantial evidence. Id. at 653. Although it must rely on a "body of reputable scientific thought" when assessing risk, id. at 656, OSHA does not have to "calculate the exact probability of harm" or support its finding "with anything approaching scientific certainty, " id. at 655-56. OSHA is entitled to "some leeway" when its "findings must be made on the frontiers of scientific knowledge." Id. at 656. We "do not reweigh the evidence and come to our own conclusion[s]; rather, we assess the reasonableness of OSHA's conclusion." Public Citizen Health Research Group v. Tyson (Ethylene Oxide), 796 F.2d 1479, 1495 (D.C. Cir. 1986).

         In promulgating the Silica Rule, OSHA conducted a Quantitative Risk Assessment in which it reviewed toxicological, epidemiological, and experimental studies about the adverse health effects of silica exposure. 81 Fed. Reg. at 16, 380. OSHA quantified the excess risk[4] of silica-related health effects assuming exposure over a working life (45 years) to various levels of silica, including the original general industry PEL of 100 µg/m3, the original construction PEL of 250 µg/m3, and the new PEL of 50 µg/m3. Id. at 16, 300. OSHA concluded that silica exposure significantly "increases the risk of" four adverse health effects: silicosis and other non-malignant respiratory disease (NMRD) mortality, lung cancer mortality, silicosis morbidity, and renal disease mortality. Id. at 16, 300, 16, 386-87. OSHA also concluded that the risks at 50 µg/m3-the new PEL-are lower than the risks at the original PELs of 100 µg/m3 and 250 µg/m3. Id. at 16, 300. In total, OSHA estimated that the Silica Rule will prevent 642 deaths and 918 cases of silica-related disease each year. Id. at 16, 399.[5]

         Industry challenges OSHA's significant risk findings in three ways. First, Industry attacks two parts of OSHA's risk-assessment methodology. Second, it challenges OSHA's findings on each of the four individual health risks. Finally, Industry challenges OSHA's decision to include the brick industry within the scope of the Rule. We reject each challenge.

         1. OSHA's Methodology

         Industry challenges two components of OSHA's risk-assessment methodology: its no-threshold assumption and its failure to account for a dose-rate effect. We uphold OSHA's decisions on both.

         First, Industry challenges OSHA's use of no-threshold exposure-response models in its risk assessments for silicosis and lung cancer. 81 Fed. Reg. at 16, 351. The no-threshold concept means there is no exposure level below which workers would not be expected to develop adverse health effects. Id. OSHA did not definitively find that no threshold exists. Instead, it found that if a threshold exists it does so below the PEL, which justified its use of a no-threshold model. OSHA supported its selection of the PEL with studies showing that risks of lung cancer exist at 36 µg/m3 and 10 µg/m3, levels lower than the PEL. Id. at 16, 351, 16, 356. To OSHA, the studies showing risks below the PEL support its conclusion that any threshold, if it exists, does so below the PEL. See id. at 16, 351 ("As 36 µg/m3 is well below the previous industry PEL of 100 µg/m3 and below the final PEL of 50 µg/m3, the . . . study showed no evidence of an exposure-response threshold high enough to impact OSHA's choice of PEL."). Industry, in contrast, points to studies it claims not only show a threshold exists but also show a threshold exists above the PEL. OSHA rejected Industry's argument because the contrary studies used non-reactive and poorly soluble particles-which silica is not-and therefore the "findings regarding" the particles "[cannot] be extrapolated to crystalline silica." Id. at 16, 349. OSHA acknowledged "there is considerable uncertainty" about whether a threshold exists but found that "the weight of evidence supports the view that, if there is a threshold, " it is "likely lower than the" PEL. Id. at 16, 351.

         OSHA's no-threshold assumption is supported by substantial evidence. Although Industry claims OSHA's position is inconsistent with common sense and "mounting judicial skepticism" of no-threshold models, citing to several district court and state court cases disapproving a no-threshold approach, Industry Br. at 28-29, OSHA's position is in line with our precedent. In Ethylene Oxide, we upheld a no- threshold model based on OSHA's having found evidence of adverse health effects at levels of exposure to ethylene oxide below the established PEL, then extrapolating that evidence to assume no threshold of ethylene oxide exposure existed below which risks did not exist and rejecting two contrary comments that purportedly showed a threshold did exist. 796 F.2d at 1500. As in Ethylene Oxide, Industry presents, and urges us to adopt, "one side of the debate." Id. But OSHA has explained why it rejected Industry's side of the debate, presented the other side of the debate, and supported it with evidence from which a reasonable conclusion could be made, as OSHA did here, that no threshold of safe exposure to silica exists. We cannot "choose a particular side as the 'right' one" in a scientific dispute. Id. Accordingly, OSHA's no-threshold assumption satisfies our substantial evidence test.

         Second, Industry challenges OSHA's decision not to include a dose-rate effect in the model, which means OSHA assessed health risks based on the cumulative amount of silica exposure without accounting for the intensity of exposures. 81 Fed. Reg. at 16, 375. OSHA took its position "because each of the key . . . studies" OSHA relied on used cumulative exposure as the only metric. Id. at 16, 374-75. Multiple commenters supported the notion that "cumulative exposure is a reasonable and practical choice" and that cumulative exposure "is often the best predictor of chronic disease." Id. at 16, 375. Competing commenters argued that OSHA's risk assessment should account for the intensity of exposures. Id. Industry relied on studies showing that not accounting for a dose-rate effect "could overestimate risk at lower concentrations." Id. The studies supporting Industry's position, however, largely observed an intensity-based effect at 500 µg/m3 and 2, 000 µg/m3, exposure levels so "far above the previous PEL, " id. at 16, 395, that OSHA determined the studies were of little use to the "exposure range of interest"- 25 to 500 µg/m3, id. at 16, 376.

         In Ethylene Oxide, we upheld OSHA's decision not to include a dose-rate effect in its model when faced with "competing technical opinions" about whether the amount or the intensity of ethylene oxide exposure mattered more. Ethylene Oxide, 796 F.2d at 1504. OSHA did the same in its Silica Rule: it took competing evidence, favored one side, and explained the reasons for its decision. We "cannot expect OSHA to [locate and use] absolutely conclusive studies on these difficult medical issues" and we must uphold OSHA's choice, even in the face of "controverted" evidence, if it falls within a "zone of reasonableness." Lead I, 647 F.2d at 1253 (quoting Hercules, Inc. v. EPA, 598 F.2d 91, 107 (D.C. Cir. 1978)). We believe OSHA's conclusions on handling the purported dose-rate effect are reasonable. "[C]ourts cannot interfere with reasonable interpretations of equivocal evidence, " Ethylene Oxide, 796 F.2d at 1505, and therefore we do not interfere here.

         2. Adverse Health Effects

         As noted earlier, OSHA concluded that long-term silica exposure above the PEL presents a significant risk of four discrete adverse health effects: (1) silicosis and NMRD mortality; (2) lung cancer mortality; (3) silicosis morbidity; and (4) renal disease mortality. 81 Fed. Reg. at 16, 300, 16, 386- 87. Industry challenges OSHA's findings as to all four. Industry acknowledged at oral argument that, to prevail, it would have to show none of the discrete findings is supported by substantial evidence. We address each in turn. We conclude OSHA's significant risk findings as to the first three adverse health effects are supported by substantial evidence, which supports OSHA's overall finding of a significant risk.

         We do not reach OSHA's finding with respect to renal disease mortality.

         i. Silicosis or Non-Malignant Respiratory Disease Mortality

         Silicosis is a progressive, irreversible lung disease caused by the inflammatory effects of silica in the lungs. OSHA found that silica exposure at the original PEL of 100 µg/m3 created an excess risk of silicosis mortality for 11 in 1, 000 workers that would be reduced to 7 in 1, 000 workers at the Rule's PEL of 50 µg/m3. 81 Fed. Reg. at 16, 303, 16, 312. Other NMRD caused by silica exposure include emphysema, chronic obstructive pulmonary disease, and chronic bronchitis. Id. at 16, 304. OSHA found that silica exposure at the 100 µg/m3 PEL created an excess risk of NMRD mortality (including silicosis mortality) for 85 in 1, 000 workers that would be reduced to 44 in 1, 000 workers at the Rule's PEL of 50 µg/m3. Id. at 16, 303. Both Industry and the Chambers Intervenors [6] challenge OSHA's findings on silicosis and NMRD mortality.

         To support its findings on silicosis and NMRD mortality, OSHA relied on two studies: the Mannetje study, which showed a statistically significant association between silicosis mortality and cumulative exposure to silica, and the Park study, which quantified the relationship between silica exposure and NMRD mortality. Id. at 16, 317. Industry's objections to OSHA's conclusions primarily attack the reliability of the Park study. Industry claims the Park study (1) focused on workers with cumulative exposure levels far above what workers typically faced under the original PEL and (2) produced results that were likely skewed by smoking because the study had smoking data for only one-half of the studied workers.

         In its rulemaking, OSHA addressed both criticisms. On the first point, OSHA acknowledged "some uncertainty in using models heavily influenced by exposures above the previous PEL" but noted that the average cumulative exposure of the studied workers was "lower than what the final rule would permit over 45 years of exposure." Id. at 16, 318. Accordingly, OSHA "[dis]agree[d] that the Park study should be discounted" and instead concluded that the study was both relevant and appropriate to rely on. Id. On the second point, OSHA acknowledged that "comprehensive smoking data would be ideal" but assessed the Park study's mechanics in detail and concluded that the risk estimates were "not likely to be exaggerated due to [studied workers'] smoking habits." Id.

         Under our substantial evidence standard, OSHA has a duty to "present its reasons for rejecting significant contrary evidence and argument." Lead I, 647 F.2d at 1207. OSHA acknowledged and adequately responded to Industry's criticisms of the Park study. Even if the Park study was "flawed in some way, " OSHA is not precluded from relying on imperfect evidence so long as it "recognize[s] and account[s] for the methodological weaknesses" of the evidence. Ethylene Oxide, 796 F.2d at 1487; see id. at 1495 ("While some of OSHA's evidence suffers from shortcomings, such incomplete proof is inevitable when the Agency regulates on the frontiers of scientific knowledge."). OSHA did recognize and account for the weaknesses of the two studies it relied on here.[7]

         The Chambers, meanwhile, present a record of death certificates and their listed cause of death that shows silicosis-attributed deaths dropped from 1, 065 in 1968 (three years before the 1971 PEL was implemented) to 123 in 2007. The decline, according to the Chambers, shows that the current risks are due not to exposure levels at the 1971 PEL but instead are due to pre-1971 exposures or exposures occurring in violation of the 1971 PEL. Thus, the Chambers argue, the 1971 rule is working and there is no need for a new one.

         But here again, OSHA adequately explained why it rejected this evidence. First, OSHA concluded that the death certificate data underreported risks after one commenter found that silicosis was listed as the cause of death for only 14 percent of people with confirmed silicosis. 81 Fed. Reg. at 16, 328. Second, the death certificate data "d[id] not include information about exposure[]" levels for those who died as a result of silicosis, which made the data "inadequate and inappropriate for" setting a standard regulating silica at particular exposure levels. Id. at 16, 326. Indeed, the agency that compiled and analyzed the death certificate data testified that relying on the death certificates to show no significant risk exists would be a "misuse" of the data. Id.

         Moreover, OSHA responded directly to the Chambers' arguments that the death certificate data showed the risks of silica exposure are no longer significant. OSHA acknowledged that silicosis-related deaths have dropped since 1968 but pointed to evidence showing that the decline leveled off at approximately 90 to 180 deaths per year since 2000. Id. at 16, 324. This evidence "suggest[s] that the number of silicosis deaths . . . may be stabilizing, " id., which also suggests that the significant risk of silicosis mortality would not disappear if OSHA simply let the 1971 PEL run its course, as Industry argued, id. at 16, 325. OSHA also pointed to evidence showing that the decline in silicosis-related deaths tracks the decline in high-exposure jobs as much as it tracks improved working conditions, further suggesting that OSHA "still h[as] work to do" to make silica exposure safe. Id. at 16, 325-26. Thus, although OSHA agreed that the death certificate data was "useful for providing context and an illustration of a significant general trend in the reduction of deaths associated with silicosis over the past four to five decades, " the "limited and incomplete" data made reliance on the death certificates "inappropriate." Id. at 16, 330. OSHA "described in some detail [its] reasons for choosing between competing alternatives." Asbestos, 838 F.2d at 1266. Accordingly, OSHA has met its burden to identify the evidence it relied on and explain why it rejected contrary evidence.

         ii. Lung Cancer Mortality

         OSHA found that silica exposure at the 100 µg/m3 PEL created an excess risk of lung cancer mortality equal to 11 to 54 deaths per 1, 000 workers that would be reduced to an excess risk of 5 to 23 deaths per 1, 000 workers at the 50 µg/m3 PEL. 81 Fed. Reg. at 16, 338. Industry argues the conclusion hinges on OSHA's unsupported assumption that silica exposure directly increases the risk of lung cancer in the absence of silicosis. That is, if the risk of lung cancer depends on preexisting silicosis, then silica exposure alone does not create an independent risk of lung cancer.

         Industry points to evidence that asserts the association between silicosis and lung cancer is "more compelling" than the association between silica exposure and lung cancer. Joint Appendix (J.A.) 3027. But the mere suggestion in some evidence that silicosis is a necessary precursor of lung cancer does not bind the agency. See Ethylene Oxide, 796 F.2d at 1504 (noting that suggestive statements "do not amount to a scientific certainty binding on the agency"). Meanwhile, OSHA also cites to numerous studies that show silica exposure can lead directly to lung cancer. 81 Fed. Reg. at 16, 309 (recapping and summarizing findings). As one commenter put it, the literature OSHA relied on shows "silica has been established as a cause of lung cancer." J.A. 7815. We lack the technical expertise to second-guess OSHA's judgment when it "review[ed] all sides of the issue and reasonably resolve[d] the matter." Ethylene Oxide, 796 F.2d at 1500. We do not second-guess OSHA's conclusions here.

         Industry specifically challenges OSHA's decision to give weight to a 2004 Attfield and Costello study, which showed there is an association between silica exposure and lung cancer, instead of a 2011 Vacek study showing there is no such association. 81 Fed. Reg. at 16, 338. Industry provides a laundry list of reasons why it believes the Vacek study is better: it is more recent, covered more workers, covered more years, and used more detailed information. But OSHA explained its reasons for rejecting the Vacek study. Among them: the Vacek study found an unexplained significant excess risk of lung cancer that called into question all of its results and had a low risk estimate for a particular type of worker (channel bar operators) that OSHA concluded had major consequences for the entire exposure analysis. Id. at 16, 335-37. Moreover, OSHA provided affirmative reasons for choosing the Attfield and Costello study. Most importantly, OSHA reasoned, that study accounted for a healthy worker survivor effect-the tendency of healthy workers to remain in the workforce longer than ill workers and therefore face more exposure than ill workers, which "may" make the "risk of disease at higher exposures" improperly "appear to be constant or decrease"- but the Vacek study did not assess the healthy worker survivor effect. Id. at 16, 336. "We have then, at worst, the ordinary situation of controverted evidence, in which we must defer to the reasonable and conscientious interpretations of the agency." Lead I, 647 F.2d at 1258.

         iii. Silicosis Morbidity

         To support its finding of a significant risk of silicosis morbidity, OSHA relied on five studies that showed an excess risk between 60 and 773 cases of silicosis morbidity per 1, 000 workers at a level of 100 µg/m3 that would be reduced to an excess risk between 20 and 170 cases of silicosis morbidity per 1, 000 workers at a level of 50 µg/m3. 81 Fed. Reg. at 16, 317. The variance among studies, according to Industry, "suggests that none of [the studies] is a reliable guide to a correct quantification" of exposures and therefore none of the studies can support a finding of a significant risk of silicosis morbidity. J.A. 3368. OSHA concluded the results of the ...

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