Industrial Safety Equipment Association, Inc. v. EPA

837 F.2d 1115 (D.C. Cir. 1988)


OSHA and D regulations protect employees against health hazard posed by asbestos. D was authorized by statute to disseminate health information to the public. Regulations require that asbestos-protection respirators be selected from among those certified by the NIOSH and MSHA. There are thirteen federally approved respirators. OSHA and D published a report recommending that 'supplied-air' respirators be used for maximum protection against asbestos exposure. The report carefully distinguishes between the thirteen respirators all of which meet federal standards and the two types that the report recommends because they provide the maximum amount of worker protection. The most controversial passage in the Guide reads: The respirator types numbered 3 through 13 above are not recommended by NIOSH or EPA for use against asbestos. However, various existing regulations allow their use. In fact, the existing respirator certification regulations (30 C.F.R. Part 11) requires NIOSH to certify . . . [these eleven]. However, as a matter of public health policy, NIOSH and EPA do not recommend their use in asbestos environments. P claims that the disapproval as published in the report is agency rulemaking wherein the action 'decertifies' 11 existing respirators. D claims its report was not rulemaking as it binds no one. P sued and the court dismissed the action. P appealed.