PETITION FOR REVIEW OF A STANDARD OF THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION.
Rosenn and Higginbotham, Circuit Judges, and VanArtsdalen, District Judge.*fn*
These consolidated cases present petitions for review*fn1 of a new health standard governing employee exposure to coke oven emissions promulgated by the Secretary of Labor ("Secretary") on October 19, 1976, pursuant to the Occupational Safety and Health Act ("the Act"), 29 U.S.C. § 651 et seq.*fn2 In summary, the standard prescribes particular controls and procedures to reduce coke oven employees' exposure in specified regulated areas to toxic emissions in concentrations no greater than 0.15 mg. of the benzene-soluble fraction of total particulate matter (BSFTPM) per cubic meter of air (0.15 mg/m3) present during the production of coke averaged over an eight-hour period. Additionally, the standard provides that if the prescribed controls do not reduce emission concentrations to the permissible exposure limit, employers would be required to provide respirators and to take additional steps to curtail excess emissions by conducting independent research and development.
Petitioners, coke manufacturers and their trade associations, make three principal claims: (1) the exposure limit of 0.15 mg/m3 (miligrams per cubic meter of air) is invalid under the statute because there is no substantial evidence of health need for the prescribed exposure limit, and there is no evidence to support the feasibility of that limit; (2) the Secretary has exceeded his statutory power by combining a performance standard with specific required engineering and work practice controls and by requiring the coke manufacturers to conduct open-ended research to develop additional control technology, if necessary, to achieve the permissible exposure limit; (3) there is no substantial evidence to support the need for the specified various mandated controls and procedures*fn3 such as quarterly monitoring of employee exposure, prescribed protective clothing and hygiene facilities, the extent of the area to be regulated, engineering controls, and work practices.
Coke is utilized primarily by steel producing companies as a fuel in blast furnaces and foundries. It is the product of the destructive distillation of coal usually produced by heating coal in an inert atmosphere in a coke oven battery.
A coke oven battery is a huge rectangular structure, typically 200 or more feet long, 40 to 60 feet wide, and up to 50 feet in height. The battery is subdivided by refractory brick walls into a series of narrow ovens, approximately 18 inches wide and 13 to 20 feet high extending the full width of the battery. Between each oven are heating flues that burn gas derived from the coal to maintain high temperatures. This heating process causes the carbonization of the coal, resulting in the formation of the coke, a porous cellular substance, and various volatile gases. Each oven is provided with three or four charging holes in its roof through which coal is dropped into the oven, and two doors, one at each end of the oven, which are removed at the end of the coking cycle so that the incandescent coke can be pushed from the oven into the quench car. As the coal is coked, a considerable amount of gas generates. Almost all of it is captured and burned in the heating flues of the coke oven battery. This gas is removed from each oven through one or two vertical ducts, called stand pipes or ascension pipes, which are connected by horizontal ducts, called goosenecks, to one or two collector mains. In brief, coke production consists of three distinct operations: "charging," "coking," and "pushing."
The charging process begins by loading coal into a larry car which operates on a rail on top ("topside") of the battery. There are three or four coal hoppers or bins on the larry car for transferring coal from a coal bunker to the charging hold. After the coal is unloaded into the oven, it is levelled to create a space between the coal and the oven so the gas evolved during the coking process can collect. To minimize escape of these gases, a process called "charging on the main" has been developed. The gases are forced out of the oven by "steam jet aspiration" through a stand pipe and into a "gooseneck" for transmittal to the collecting main. During the trip through the gooseneck, the gases are sprayed with condensation, "flushing liquor," from the collecting main. Prior to charging, a lid man removes the lids on the charging holes of the empty oven. The larry car operator then positions the car over the empty oven and he and the lid man then let the coal out of a hopper into the oven.
The second operation in the coking process is the heating of the ovens. The ovens are heated from 14 to 36 hours at temperatures of 2000 degrees F. or more. After the heating is completed at the end of the coking cycle, the coke is ready for the third operation, the removal ("pushing") from the oven. A pusher machine on which is mounted a mechanical ram for pushing the coal from the oven is stationed in front of the oven's "push side door." The door is removed as is the door on the oven's opposite side, the "coke side door." The ram forces the coke out of the oven through the coke side door into a railroad car, the "quench car." The quench car carries the hot coke to the "quench tower" where it is cooled with water and then dumped onto the "coke wharf." Finally, it is conveyed to the screening stations for sizing. It is then ready for use.
The hazards to coke oven employees stem from the escape of volatile gas byproducts, a danger present at all three stages of the coking process. The composition of the gas from the coke oven varies with the type of coal, its moisture content, and the extent to which the coal has been coked. The gas contains numerous hydrocarbons and at varying times also includes particulate matter and tars. Emissions can leak out into the work place areas immediately adjacent to the ovens through the charging hole during the charging process. Because coke oven batteries are operated at extremely high temperatures and are subject to considerable thermal stress which often produces minute cracks in coke ovens, gas can leak from the ovens during the coking process. Emissions also can leak through the oven doors during the push, and from the quench car while the coke is carried to the quench tower. Finally, if for some reason the coal has not been thoroughly coked by the time it is pushed, the uncoked coal will precipitate a "green push" generating substantial gas emissions and characterized by flames shooting out of the coke mass with dense black smoke enveloping the entire area of the battery.
Efforts to reduce employee exposure to coke oven emissions began officially in 1969. The Secretary of Labor, acting under the authority of the Walsh-Healey Act, 41 U.S.C. §§ 35-45 (1970), adopted a 1967 recommendation of the American Conference of Governmental Industrial Hygienists that occupational exposures to "coal tar pitch volatiles" ("CTPV") be limited to 0.2 mg/m3 on an eight hour day.*fn4 In 1971, the Secretary adopted that standard as an "established federal standard" pursuant to section 6(a) of the Act, 29 U.S.C. § 655(a) (1970). Later that same year, the American Iron and Steel Institute ("AISI") petitioned the Secretary to develop a standard designed specifically for coking operations, while the United Steelworkers of America petitioned the Secretary to formulate a more stringent performance standard. The petitions were both denied, pending expedited research conducted by the National Institute for Occupational Safety and Health ("NIOSH") in the development of criteria for an appropriate standard.
The NIOSH report was issued in February 1973 and, in essence, concluded that: (1) because existing data was inadequate to determine safe coke oven emission levels, the existing.2 mg/m3 coal tar pitch volatile standard should be retained; (2) application of feasible engineering controls and work practices were the most efficient means to control emission leakage.
In August 1974, the Secretary established a Standards Advisory Committee on Coke Oven Emissions to review the NIOSH criteria report and to prepare recommendations for a new standard protecting employees from exposure to coke oven emissions - as distinct from other material falling within the broad coal tar pitch volatile category. Members of the committee, experts in their respective fields, included among their number an epidemiologist, a public health expert, industrial hygienists representing the employers, and union members. After lengthy hearings, on-site inspections, and review of documents, the Advisory Committee submitted a majority and dissenting 3500 page report in May 1975. Drawing upon the various studies before him, the Secretary published on July 24, 1975, his own "Proposed Standard" for coke oven emissions. He set the proposed exposure limit at 0.3 mg of respirable particulate matter ("RPM") per cubic meter of air. The area to be regulated included any coke plant area where the permissible exposure limit was exceeded. Furthermore, the proposed standard identified various engineering controls and work practices which seemed effective in curtailing emissions exposure although such controls and procedures were not mandated under the proposed standard. OSHA conducted hearings on the proposed standard between November 1975 and May 1976 with respect to all issues.
The final standard was promulgated in October 1976. As we noted earlier, it establishes a permissible exposure limit to the benzene-soluble fraction of total particulate matter (BSFTPM) of 0.15 mg/m3. The regulated area covers the coke oven batteries, topside, push side, and coke side, with their attendant machinery, the battery ends, the quenching tower, wharf and screening station. Quarterly monitoring of exposure levels for each shift in each job classification in the regulated area is also provided. To reach the permissible limits, an extensive list of engineering and work practices to be implemented at each battery is ordered. Finally, the standard provides that if the permissible exposure limit has not been met after implementing all the specified controls, the employers must provide respiratory equipment and they must undertake open-ended research and development until they have developed technologies which will achieve compliance.
In December 1976 petitioners AISI and American Coke and Chemical Institute ("ACCI") applied to the Secretary for a stay of the effective date of certain of the standard's provisions or for alternative relief. The Secretary denied that petition in January 1977. Petitioners then moved this court for a stay. The court granted an interim stay pending decision on the motion, denied the motion on February 18, 1977, and vacated the interim stay. This petition for review, for which we have jurisdiction under section 6(f) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 655(f) (1970), followed.
We affirm the standard but vacate the sections pertaining to research and development requirements and the requirement of a qualitative fit test for respirators.
Our standard of review in this case is statutorily mandated by section 6(f) of the Act, 29 U.S.C. § 655(f), which provides in pertinent part:
The determination of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole.
In Synthetic Organic Chemical Manufacturers v. Brennan, 503 F.2d 1155 (3d Cir.) cert. denied, 420 U.S. 973, 95 S. Ct. 1396, 43 L. Ed. 2d 653 (1970) (" SOCMA I "), this court set forth a five-step process for reviewing the Secretary's safety standard under section 6(f):
(1) determine whether the Secretary's notice of proposed rulemaking adequately informs interested persons of the action taken;
(2) determine whether the Secretary's promulgation adequately sets forth reasons for his action;
(3) determine whether the statement of reasons reflects consideration of factors relevant under the statute;
(4) determine whether presently available alternatives were at least considered; and
(5) determine whether substantial evidence in the record as a whole supports the Secretary's determination, if it is based in whole or in part on factual ...