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The 1980 Supreme Court ruling on the regulation of benzene in the workplace sidestepped the troubling question of the role cost-benefit analysis should play in Occupational Safety and Health Administration (OSHA) regulation of toxic substances. Cost-benefit analysis consists of an agency estimate of expected health benefits from a proposed standard, an estimate of what it will cost the affected industry to comply with the standard, and a determination of whether the expected benefits bear a reasonable relationship to the estimated costs. In evading the issue of whether or not the OSH Act requires the agency to undertake a cost-benefit analysis prior to promulgation of standards, the plurality opinion in Industrial Union Department, AFL-CIO v. American Petroleum Institute left open a question which has perplexed workers, industry, the agency and courts for a decade. It appears likely, however, that the opinion on benzene regulation only postponed a Supreme Court examination of the issue. Cost-benefit analysis and its significance to OSHA regulation of toxic substances in the workplace may have an appreciably greater impact in the near future as the Supreme Court is expected to rule on the OSHA cotton dust standard this term.

This comment will examine the benzene issue and how cost-benefit analysis might relate to its control as seen by OSHA, the United States Court of Appeals for the Fifth Circuit, and Justice Powell. The comment will also explore the OSH Act, pertinent legislative history and current judicial interpretation of that history because the key question is whether the Act requires OSHA to undertake cost-benefit analysis. The decisions of lower federal courts on OSHA’s regulatory control of other toxic substances will also be examined.

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