Ergonomics Rule Is Dead, Revised Clean Air Regs Live

Published: April 01, 2001, By Sheila A. Millar, Attorney-at-Law, Keller & Heckman, Washington, DC

Two significant developments occurred in February and March that illustrate the role that Congress and the courts play in dealing with challenges to final rules affecting the converting industry.

In the first-ever use of a bill passed five years ago to provide for Congressional oversight of agency rules, Congress has invoked the Congressional Review Act (CRA) to torpedo the expensive ergonomics rule finalized during the end of the Clinton administration.

On the judicial side, the US Supreme Court handed the Environmental Protection Agency a significant (but not total) victory in February on clean air. In a rare unanimous decision, the Court backed EPA's determination that it was barred from considering costs in setting national ambient air quality standards (NAAQS) under Section 109(b) of the Clean Air Act (CAA) in Whitman vs. American Trucking Association

Concerted industry effort generated support from moderate Democrats for a resolution overturning the ergonomics rule. The CRA is a provision of the Small Business Regulatory Enforcement Fairness Act (SBREFA), passed by Congress and signed by President Clinton in 1996. It gives Congress 60 legislative days to review a rule. During that time, it can pass a joint resolution of disapproval, which effectively stops the rule from taking effect. The President can veto the action, but Congress retains the power to override the Presidential veto. President Bush, however, has indicated that he will approve the Congressional resolution.

A broad and determined coalition of industry groups — including members of the National Coalition on Ergonomics, grocery store interests, bakers, manufacturing interests, members of the Food Marketing Institute, hotel and service industries, and others — mobilized against the ergonomics rule, using the extraordinary costs as a rallying cry. Many businesses similarly consider the cost of EPA's NAAQS requirements to be equally unacceptable but were forced to look to the courts for relief.

The NAAQS legal battle began after EPA issued revised ozone standards and a new standard covering particulate matter (PM) 2.5 microns or less in diameter. Unable to convince Congress to invoke the CRA, industry groups filed a lawsuit. Justice Scalia, for the majority, said the clear language of the Clean Air Act barred cost considerations in setting NAAQS. The Court upheld the lower court decision that relied on a 20-year old case (Lead Industries Association Inc. vs. EPA) that concluded consideration of costs was barred in establishing health-based NAAQS. The Court rejected industry's argument (and the lower court's decision) that an unconstitutional delegation of authority was involved, concluding that EPA did have the authority to issue the rules.

EPA's victory was not total; the Court concluded that EPA's determination that the provisions of Subpart I of the CAA, which includes general provisions applicable to nonattainment areas for all pollutants, rather than Subpart II, which provides specific requirements for time tables for compliance, govern the new ozone standard. Ignoring deadlines and compliance requirements of Subpart II and relying only on Subpart I was improper, said the Court. The case has been remanded to the D.C. Circuit.

In refusing to defer to the EPA's decision on the implementation schedule completely, the Court has demonstrated clearly the need for Agency justification within the statute. Thus, future challenges are possible, but arguments will have to focus on EPA's science and technological issues, and the reasonableness of the implementation schedule using the traditional “arbitrary and capricious” test standard in administrative law, not cost-benefit arguments.

The bottom line: For proposed regulations, the first line of defense for industry is to provide all possible relevant scientific, technical, and economic input. When, despite those efforts, a final rule is issued that is overbroad, too costly, technically infeasible, or inconsistent with sound science or statutory mandates, all available options for challenge can and should be considered.

Sheila A. Millar, a partner with Keller and Heckman LLP, counsels both corporate and association clients. Contact her at 202/434-4143; e-mail: This email address is being protected from spambots. You need JavaScript enabled to view it..