Answer: Prior to this case, OSHA and other government agencies did not undertake quantitative risk assesments. That is, they did not attempt to estimate the numerical risk associated with hazardous chemicals, although they did express this risk using words and other qualitative approaches. OSHA and other government agencies responded to this ruling by undertaking quantitative risk assessments. In this way, Industrial Union is responsible for the widespread efforts of the federal government to numerically estimate risk.

2. Suppose hypothetically that you are general counsel to OSHA at the time that Industrial Union was pending before the Supreme Court. Suppose futher that you and the OSHA Administrator both have the foresight to see the problems that this Supreme Court ruling will create, and you want to avoid them. As a consequence, as general counsel you suggest that the Administrator enter into a consent decree that will make this case moot. Under these circumstances, what would you recommend that the OSHA consent to? (one paragraph answer)

Partial answer: Note that the case involves an alleged failure of OSHA, when regulating benzene, to address the requirements of Sec. 3(8) of the OSA Act. Might you be able to "fix" this problem without committing the agency to undertake a quantitative risk assessment?

3. Suppose hypothetically that you were general counsel to OSHA immediately after Industrial Union was decided. The OSHA Administrator sees the problems that this ruling will create, and asks for your advice as to how OSHA might comply with the Court's ruling, yet still not commit itself to undertake a quantitative risk assessment. Is this a sensible strategy? How would you recommend that the Administrator proceed? (one paragraph answer)

4. There are many ways in which OSHA might have responded to the Industrial Union decision. It appears to your instructor that there was no need for OSHA to respond by undertaking numerical risk assessments. Yet they did. Explain why the OSHA Administrator might see some benefits from this particular response, the huge scientific problems in numerically estimating risk notwithstanding. (one paragraph answer)

Partial answer: Even though the numerical risk assessments have huge scientific uncertainty, any court reviewing them will defer to agency expertise (under an arbitrary and capricious or substantial evidence standard of review). By contrast, other ways in which EPA might have reponded to this decision would likely rely more heavily on legal analysis and less on science, and to the extent that this is true will be subjected to a higher level of judicial scrutinty. In the extreme case, OSHA's response would be subjected to a de novo review.