499 F.2d 467 (D.C. Cir. 1974), 72-1713, Industrial Union Dept., AFL-CIO v. Hodgson

Docket Nº:72-1713.
Citation:499 F.2d 467
Party Name:INDUSTRIAL UNION DEPARTMENT, AFL-CIO, et al., Petitioners, v. James D. HODGSON, Secretary, Department of Labor, Respondent, Environmental Defense Fund, Inc., Intervenor.
Case Date:April 15, 1974
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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499 F.2d 467 (D.C. Cir. 1974)



James D. HODGSON, Secretary, Department of Labor, Respondent, Environmental Defense Fund, Inc., Intervenor.

No. 72-1713.

United States Court of Appeals, District of Columbia Circuit.

April 15, 1974

Argued April 4, 1973.

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[Copyrighted Material Omitted]

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George H. Cohen, Washington, D.C., with whom Elliot Bredhoff, Washington, D.C., was on the brief, for petitioners. Michael H. Gottesman, Washington, D.C., also entered an appearance for petitioners.

Walter H. Fleischer, Atty., Dept. of Justice, with whom Eric B. Chaikin, Atty., Dept. of Justice, was on the brief, for respondent. Michael J. Levin, Atty., U.S. Dept. of Labor, Michael Kimmel, Atty., Dept. of Justice, and Baruch A. Fellner, Atty., Appellate Litigation of Div. of Occupational Safety and Health, Dept. of Labor, also entered appearances for respondent.

Scott H. Lang, Washington, D.C., of the bar of the U.S. District Court for the District of Columbia, pro hac vice by special leave of court, with whom John F. Dienelt, Washington, D.C., was on the brief, for intervenor.

Alan B. Morrison and Arthur L. Fox, II, Washington, D.C., filed a brief on behalf of Health Research Group as amicus curiae, urging reversal.

Joseph W. Burns, New York City, filed a brief on behalf of Asbestos Information Assn./North America as amicus curiae, urging affirmance. John P. Keegan also entered an appearance for amicus curiae Asbestos Information Assn./ North America.

Before McGOWAN, LEVENTHAL and MacKINNON, Circuit Judges.

McGOWAN, Circuit Judge:

This direct review proceeding presents a classic case of what Judge Friendly has aptly termed 'a new form of uneasy partnership' between agency and court that results whenever Congress delegates decision making of a legislative character to the one, subject to review by the other. Associated Industries v. United States Dept. of Labor, 487 F.2d 342, 354 (2nd Cir. 1973). The angularity of this relationship is only sharpened when, as here, Congress--with no apparent awareness of anomaly-- has explicitly combined an informal agency procedure with a standard of review traditionally conceived of as suited to formal adjudication or rulemaking. The federal courts, hard pressed as they are by the flood of new tasks imposed upon them by Congress, surely have some claim to be spared additional burdens deriving from the illogic of legislative compromise. At the least, it would have been helpful if there had been some recognition by Congress that the quick answer it gave to a legislative stalemate posed serious problems for a reviewing court, and that there would inevitably have to be some latitude accorded it to

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surmount those problems consistently with the legislative purposes. The duty remains, in any event, to decide the case before us in accordance with our statutory mandate, however dimly the rationale, if any, underlying it can be perceived.

The petition before us seeks review of standards promulgated by the Secretary of Labor under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., (hereinafter OSHA). The standards in question regulate the atmospheric concentrations of asbestos dust in industrial workplaces. Petitioners are unions whose members are affected by the health hazards of asbestos dust. They challenge the timetable established by the standards for the achievement of permissible levels of concentration, and object to portions of the standards concerning methods of compliance, monitoring intervals and techniques, cautionary labels and notices, and medical examinations and records. We remand two of such issues to the Secretary for further consideration. In all other respects, the petition is denied.


A. The Occupational Safety and Health Act

Technological progress in industry appears not to have been accompanied uniformly by corresponding reductions in the health hazards of industrial working conditions. More than 2.2 million persons are disabled on the job each year, and in 1967 the Surgeon General estimated that approximately 400, 000 new cases of occupational disease would occur in each succeeding year. 1 The Chairman of the Committee on Labor and Public Welfare summarized the problem as follows:

Not only are occupational diseases which first came to light at the beginning of the Industrial Revolution still undermining the health of workers, but new substances, new processes, and new sources of energy are presenting health problems of ever-in-creasing complexity.

Foreword, Legislative History of the Occupational Safety and Health Act of 1970 (hereinafter Legis.Hist.).

OSHA, the first comprehensive attempt by Congress to deal with these problems, 2 covers every employer whose business affects interstate commerce. 3 Eschewing any attempt to establish substantive provisions to control all these various employers, the Act erects a general framework to govern the development of regulations, and delegates the task of formulating particular health and safety standards to the Secretary of Labor. Civil and criminal sanctions are provided to enforce compliance.

OSHA specifies the procedure to be followed in the promulgation of standards, and provides for the establishment of a research institute and the appointment of advisory committees to assist the Secretary. 4 The substantive provisions of the Act impose a general obligation upon employers to provide safe working conditions. 29 U.S.C. § 654(a)(1) (1970). The Secretary is required to promulgate standards to control

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particular health hazards that come to his attention. Certain types of controls, including monitoring, medical examinations, warnings, record keeping, and specific protective measures are specified by the statute itself, but the decision as to when and how they should be required with regard to particular health hazards is left to the Secretary.

B. Asbestos

Asbestos is a generic term applicable to a number of fibrous, inorganic, silicate minerals that are incombustible in air. Its commercial value is high, and its uses are many and varied. Asbestos can be woven into cloth, used in powder form, or incorporated into materials of various shapes and consistencies. Almost one million tons of asbestos are used in this country annually; and, for many purposes, it cannot easily be replaced with other substances. 5

Unfortunately, asbestos is as hazardous to health as it is useful to industry. During its production and use, tiny asbestos fibers are released as a dust in the air, and, over the course of this century, thousands of workers have been killed or disabled by the effects of inhaling these fibers. There are no precise figures concerning the number of workers involved, but it is estimated that three to five million workers are exposed to some extent to asbestos fibers in the building construction and shipyard industries alone. 6 While OSHA was under consideration in Congress, the health hazards of the asbestos industry were among the examples used to stress the need for legislation. 7

C. Proceedings before the Secretary

Within a few months of the effective date of OSHA, petitioners requested the Secretary to establish an emergency standard to control concentrations of asbestos dust. 8 The Secretary promptly issued a temporary standard and set in motion the procedure for establishment of a permanent standard. Notice of the proposed rulemaking was published, and interested persons were invited to submit their views. NIOSH submitted its recommendations, as did the Advisory Committee. These were made public, and the Secretary conducted a hearing at which various representatives and experts appeared on behalf of interested parties. On the basis of these recommendations and a formidable record of documents and oral testimony, including highly technical statements by expert witnesses, the Secretary established the standards in question. 9 His statement

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of reasons covers some four and one-half pages of the Federal Register. 10

Petitioners allege no procedural errors in the promulgation of these standards, but they characterize them as inadequate to protect the health of employees as required by the Act. They attack the Secretary's interpretation of OSHA in certain particulars, as well as the enforcement measures he has selected.


OSHA is a self-contained statute in the sense that it does not depend upon reference to the Administrative Procedure Act for specification of the procedures to be followed. It prescribes that the process of promulgating a standard is to be initiated by the publication of a proposed rule. Interested persons are given a period of 30 days thereafter within which to submit written data or comments. Within this period any interested person may submit written objections, and may request a public hearing thereon. In such event, the Secretary shall publish a notice specifying the particular standard involved and stating the time and place of the hearing. Within 60 days after the completion of such hearing, the Secretary shall make his decision. Judicial review by the courts of appeals is provided. 11

This procedure is characteristic of the informal rulemaking contemplated by Section 4 of the APA, 5 U.S.C. § 553, and it was so understood by the Congress. inferences of policy drawn from those although describing it as 'legislative in type, ' has provided that the oral hearing called for in the statute shall contain some elements normally associated with the adjudicatory or formal rule-making model. As indicated in the text of the regulations, set forth in the margin, 12 the Secretary apparently concluded

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