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United Steelworkers of Am., AFL-CIO-CLC v. Marshall

Citation: 10 ELR 20784
No. No. 79-1048, 647 F.2d 1189/(D.C. Cir., 08/15/1980)

The D.C. Circuit Court of Appeals upholds the bulk of the Occupational Safety and Health Administration's (OSHA's) workplace safety rule limiting employee exposure to airborne lead in concentrations greater than 50 micrograms per cubic meter (ug/m3). In response to what it viewed as mounting evidence associating disease with exposure to ambient lead at the existing permissible exposure level (PEL), OSHA proposed in 1975 that the PEL be lowered to 100 ug/m3. After extensive proceedings, the agency promulgated a final rule which set the PEL at 50 ug/m3. This standard must be met by all covered industries immediately; however, different industries were given different periods in which to attain the standard solely through the use of engineering and operational controls, as opposed to the use of individual respirators. The standard also (1) requires environmental and biological monitoring, (2) directs that employees with unduly high blood lead levels be removed from high-exposure positions, without loss of pay, and (3) requires the keeping of medical records that must be made available to employees, designated union representatives, and the government. The union petitioners challenged the 50 ug/m3 limit as insufficiently protective of worker health under the Occupational Safety and Health Act (OSH Act). Industry parties argued that the limit was overly protective as well as technologically and economically infeasible. They also raised a wide range of procedural, evidentiary, and other legal objections to the rule.

Regarding industry's procedural claims, the court first notes that because of recurring flaws in the record "procedural purists will never place the lead standard in the Pantheon of administrative proceedings." Nonetheless, even though the OSH Act states that reviewing courts shall apply the substantial evidence standard, 29 U.S.C. § 655(f), a somewhat deferential mode of review is counseled by the ruling of the Supreme Court in Vermont Yankee Nuclear Power Corp. v. NRDC, 8 ELR 20288, the fact that the proceeding on review was a hybrid rather than a formal proceeding, and by the magnitude and nature of the data base and public comments with which the agency had to deal. The court rejects the claim that the OSHA Administrator's alleged bias predetermined the outcome of the proceeding, observing that statements made by her indicate only a general philosophy rather than prejudgment of the matters before the agency. Second, the court disagrees with the charge that certain members of the agency staff impermissibly acted in both investigatory and quasiadjudicatory capacities, stating that some functional overlap of this kind is inevitable in informal proceedings. Third, OSHA's extensive reliance on outside consultants who had earlier given testimony in the proceeding in favor of the standard, while questionable, did not rise to the level of an impermissible ex parte contact. Fourth, the difference in the substance of the proposed rule and the final rule does not invalidate the latter. The proposed rule indicated that OSHA was not wedded to its terms, and in any event the changes reflected in the final rule were insufficient to mislead the parties prejudicially. Fifth, the claim that parties to the proceeding were unfairly denied a right of cross-examination runs counter to the express ruling of the Supreme Court in Vermont Yankee.

As to the substantive challenges to the rule, the court first upholds the standard's provision for medical removal protection. Such a measure is within the wide range of devices within the Secretary's discretion to adopt and does not impermissibly supercede or interfere with the protections offered by state workers compensation programs. Second, the directive that employees requiring medical examinations be allowed to obtain the opinion of two physicians is within the Secretary's authority. Third, the medical records disclosure provision is authorized by the OSH Act, provided that the standard does not furnish representatives of unions or the government with access to more than medical removal protection records.

The court goes on to affirm the establishment of the PEL at 50 ug/m3. The court discusses in some detail the recent opinion of the Supreme Court in Industrial Union Dep't, AFL-CIO v. American Petroleum Inst., 10 ELR 20489 (U.S. July 2, 1980), and concludes that the lead standard meets the substantive criteria of adequacy set out in that opinion. The evidence in the record demonstrates conclusively that there is a risk of "significant harm" from exposure to ambient lead at the previous PEL. However, whether that harm has been shown to be "material" is a separate question. The court finds substantial evidence to support the agency's conclusion that even though the blood lead levels sought to be prevented by the rule produce only subclinical indications of disease, such effects are material.The court adds that substantial evidence supports the finding that an ambient concentration of lead of 50 ug/m3 leads to a human blood level of 40 ug/100g.

As to the statutory requirement that the standard be "feasible," the court notes that this requirement has two elements: technological and economic feasibility. Thus, no standard may impose requirements which physically cannot be implemented or which would bankrupt a substantial number of firms in an industry. Yet since the lead standard provides that some measures be adopted to the extent feasible, the question becomes less whether the standard is infeasible and thus invalid, but rather the extent to which the standard is feasible and thus must be followed. The court finds substantial evidence in support of OSHA's judgment as to the technological and economic feasibility of the standards for the primary lead smelting, secondary lead smelting, and battery manufacturing industries. As to the pigment manufacturing and bronze and brass smelting industries, the agency has cited no record evidence in support of its finding that the protective measures required are technologically feasible. The rules are thus remanded, but review of their economic feasibility is unnecessary. The standards for the shipbuilding and auto manufacturing industries are also remanded, on the grounds that there has been no showing that the necessary controls can be implemented within the one-year compliance period.

The balance of the industries covered by the rule were treated similarly or in groups for many purposes. The court remands the standards for all but ten of these industries on grounds of failure to show technological feasibility. The agency's findings in this respect were based on the "Short report," which was characterized by the agency itself as fatally flawed. As to the remaining standards, the court upholds the agency's feasibility determinations with the exception of the standards for the solder, brick, and pottery manufacturing industries, and the wire patenting industry. The court also rejects the claim that OSHA improperly failed to determine economic feasibility in light of Environmental Protection Agency regulations controlling air emissions of lead.

The court rejects arguments raised by the unions that the 50 ug/m3 standard is too lenient, according wide deference to OSHA's discretion to give weight to considerations of feasibility in setting standards. In addition, it was reasonable for OSHA not to require environmental monitoring in the construction industry, given the infrequency of construction workers' exposure to lead and the difficulty in establishing reliable monitoring systems out-of-doors.

MacKinnon, J., dissents, stating that the lead standard should be remanded in order (1) to correct the improper use of consultants, (2) to issue a notice of rule making indicating 50 ug/m3 as the target PEL and providing for cross examination by the parties, (3) to produce substantial evidence compensating for the inadequacy of the "Short report" as evidence of the technological feasibility of the standards for the "other industries," (4) to strike the medical removal protection system, (5) to hold further hearings on the feasibility question in light of the Supreme Court's opinion in Industrial Union Dep't v. American Petroleum Inst., supra, (6) to reconsider the feasibility of the PEL without reliance on feasibility data relating to the proposed PEL of 100 ug/m3, and (7) to perform a cost-benefit analysis of the standard.

The full text of this opinion is available from ELR (283 pp. $35.00, ELR Order No. C-1222).

Counsel for Petitioners United Steelworkers et al.
George H. Cohen, James M. Harris, Julia Penny Clark, Robert M. Weinberg, Norman M. Berger, Mary Win-O'Brien, James C. English
Bredhoff, Gottesman, Cohen & Weinberg
1000 Connecticut Ave. NW, Washington DC 20036
(202) 833-9340

Counsel for Petitioners Lead Industries et al.
Standish F. Medina Jr., Nicole A. Gordon, Edwin H. Seeger
Prather, Seeger, Doolittle & Farmer
1101 16th St. NW, Washington, DC 20036
(202) 296-5000

Counsel for Respondents
Dennis K. Kade, Benjamin W. Mintz, Allen H. Feldman, Nancy L. Southard, Richard L. Gross
Department of Labor, Washington DC 20210
(202) 523-6640

Counsel for Amicus Curiae Oil, Chemical and Atomic Workers Union
Robert Stulberg, Girardeau A. Spann, William B. Schultz
2000 P St. NW, Washington DC 20036
(202) 785-3704

Wright, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]