*District Judge of the Western District of Louisiana, sitting

by designation. 

1

United States Court of Appeals,

Fifth Circuit.

No. 94-41097.

ASBESTOS INFORMATION ASSOCIATION/NORTH AMERICA, Petitioner,

v.

Robert B. REICH, Secretary of Labor, Respondent.

July 24, 1997.

On Petition for Review of a Final Rule Promulgated by the

Occupational Safety and Health Administration.

Before WIENER and PARKER, Circuit Judges, and LITTLE, District

Judge.*

ROBERT M. PARKER, Circuit Judge:

Petitioner Asbestos Information Association/North America

("AIA/NA") petitioned this court for review of a final rule

promulgated by the Occupational Safety and Health Administration

("OSHA" or "the Agency"). We grant review and vacate the Agency's

shipyard and construction standards insofar as they regulate

asphalt roof coatings and sealants which contain asbestos.

FACTS AND PROCEEDINGS BELOW

a. Background of litigation and regulation

In 1986, OSHA issued a rule regulating occupational exposure

to asbestos. The D.C. Circuit upheld part of the rule and remanded

other parts to OSHA for further action. Building & Const. Trades

Dept., AFL-CIO v. Brock, 838 F.2d 1258 (D.C.Cir.1988). In 1994,

pursuant to the remand and after notice-and-comment, OSHA published
 

129 C.F.R. § 1926.1101(k)(8)(iii) & (vi)(A) (1995). 

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a final rule. 59 Fed.Reg. 40964 (August 10, 1994). After

additional challenges, OSHA made modifications to the final rule.

60 Fed.Reg. 50411 (Sept. 29, 1995).

Once again, challenges were filed. This case presents the

last petition that remains unsettled: AIA/NA's challenge to the

1994 Rule.

b. Facts relevant to AIA/NA's claims.

AIA/NA represents asbestos miners and manufacturers of

asbestos-containing products. Among the few remaining asbestos

products manufactured in the United States are roofing sealants and

coatings which are asphalt mixtures containing asbestos fibers.

During the manufacturing process solid asphalt is liquefied by

dissolving it in paint thinner, resulting in a thin black syrup.

Enough chrysotile or powdered asbestos is mixed into the syrup to

make a stiff paste that can be used, for example, to seal the crack

around a chimney. When the solvent evaporates, the asphalt becomes

a tough leather-like film that shuts out water. Roof coatings are

manufactured in the same way, except that they have a thinner

consistency so that they can be applied with a brush. AIA/NA takes

the position that the manufacturing process encapsulates the fibers

in asphalt so that the asbestos cannot become airborne and workers

cannot inhale or swallow the fibers inadvertently. There is no

evidence in the record that these products have ever been found to

cause any worker exposure to asbestos. AIA/NA therefore objects to

OSHA's regulations requiring warning labels on the products,1
 

229 C.F.R. § 1926.1101(g)(11)(v) (1995). 

 

329 C.F.R. § 1926.1101(g)(8)(ii) & (g)(11) (1995). 

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notification to building owners when the products are installed,2

and work practice requirements that increase the cost of removal.3

STANDING

The party seeking to invoke federal jurisdiction has the

burden of establishing standing. Lujan v. Defenders of Wildlife,

504 U.S. 555, 561, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992).

The Secretary challenges AIA/NA's standing alleging (1) AIA/NA can

establish no injury in fact—that is, the challenged regulations do

not impose compliance duties on AIA members or induce users to shy

away from asbestos containing products; and (2) the interest

AIA/NA asserts is not within the "zone of interest" the OSH Act

seeks to protect.

The Secretary's first contention is meritless. AIA/NA

challenges the regulation imposing hazard communication

requirements directly on AIA/NA members. Further, AIA/NA relies on

OSHA's own economic analysis which recognized that even when

asbestos-based products are cheaper than non-asbestos based

products, demand is shifting away from asbestos-based products due

to market response to liability and regulatory concerns. 59

Fed.Reg. 40964, 41051, col. 1 (1994). That is sufficient to

sustain AIA's burden of establishing that the challenged

regulations impair product marketability. We find that AIA/NA has

met its burden of establishing that it has sustained an injury in

fact.
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We must next determine whether the interest sought to be

protected by the complainant is "within the zone of interests to be

protected or regulated by the statute[.]" Ass'n of Data Processing

Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct.

827, 829, 25 L.Ed.2d 184 (1970). There is a presumption in favor

of judicial review of agency action, Block v. Community Nutrition

Institute, 467 U.S. 340, 348, 104 S.Ct. 2450, 2455, 81 L.Ed.2d 270

(1984), but at bottom the reviewability question turns on

congressional intent. Clarke v. Securities Industry Ass'n, 479

U.S. 388, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987). The OSH Act

provides for judicial review by "any person who may be adversely

affected by a standard." 29 U.S.C. § 655(f) (1996). Under the

plain language of § 655(f), AIA/NA has standing as a "person who

may be adversely affected."

SUBSTANTIAL EVIDENCE TO SUPPORT THE CHALLENGED REGULATIONS

The burden is on OSHA to show, on the basis of substantial

evidence, the need for the challenged regulation. Industrial Union

Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 653,

100 S.Ct. 2844, 2869-70, 65 L.Ed.2d 1010 (1980). AIA/NA contends

that OSHA's regulations regarding work practice, training, and

hazard communication requirements on roofing sealants that contain

asbestos are not supported by substantial evidence. AIA/NA states,

and our record review confirms, that there is no evidence in the

record that asbestos fibers can ever escape from roofing sealants

and become airborne; in fact, the evidence in the record indicates

that they cannot. Neither the Secretary nor the AFL-CIO,
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intervenor on behalf of the Secretary, seriously disputes this

assertion. Rather, they argue that it is neither practical nor

scientifically possible to distinguish roofing sealants from built

up roofing for purposes of asbestos regulations. Because asbestos

creates significant risk at minuscule levels of exposure and

because there is evidence that other kinds of roofing materials

break down due to weathering and agressive handling, releasing

asbestos, the Secretary contends that OSHA can "rationally

conclude" that sealants will present similar problems.

Specifically, evidence in the record supports the finding that

built up roofing, consisting of layers of asbestos felts coated

with asphalt, can break down and result in asbestos exposure. In

Color Pigments Mfrs. Ass'n, Inc. v. OSHA, 16 F.3d 1157 (11th

Cir.1994), the Eleventh Circuit held that OSHA acted rationally in

subjecting low solubility cadmium compounds to the same standard as

compounds of higher solubility when no definitive study confirmed

or refuted the hypothesis that all cadmium compounds are equally

toxic. The Secretary argues that, similarly, OSHA could rationally

conclude that roofing sealants in question here might break down

and result in exposure. Evidence in the rulemaking record refutes

this position. The potential for fiber release from sealants is

not analogous to the potential for fiber release from asphalt

coated asbestos felting and similar built-up roofing products. It

is clear that built up roofing poses real risks of exposure that

are not present in roofing sealants. Further, OSHA recognized this

difference when it developed separate requirements specifically
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governing roofing sealants.

The Secretary argues that it has discretion to address

asbestos risk through a comprehensive standard, acknowledging its

obligation to defend individual provisions as "reasonably related"

to the purpose of the standard as a whole, citing Forging Indus.

Ass'n v. Secretary of Labor, 773 F.2d 1436, 1447 (4th Cir.1985).

Nothing in this opinion in intended to inhibit such discretion,

should any future rulemaking produce substantial evidence to

support a finding that roofing sealants pose a risk of asbestos

exposure.

CONCLUSION

We hold that, because of the lack of substantial evidence in

the record, the challenged regulations are invalid as to

asbestos-containing asphalt roof coatings and sealants.

Petition for Review GRANTED; Agency's standards VACATED.