647 F.2d 1189 (D.C. Cir. 1980), 79-1048, United Steelworkers of America, AFL-CIO-CLC v. Marshall

Docket Nº79-1048.
Citation647 F.2d 1189
Party NameUNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, Petitioner, [*] v. F. Ray MARSHALL, Secretary of Labor, United States Department of Labor, and Doctor Eula Bingham, Assistant Secretary for Occupational Safety and Health, United States Department of Labor, Respondents, Cast Metals Federation, International Union, United Automobile, Aerospace and Agricul
Case DateAugust 15, 1980
CourtUnited States Courts of Appeals, United States Court of Appeals (District of Columbia)

Page 1189

647 F.2d 1189 (D.C. Cir. 1980)

UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, Petitioner,[*]

v.

F. Ray MARSHALL, Secretary of Labor, United States

Department of Labor, and Doctor Eula Bingham,

Assistant Secretary for Occupational

Safety and Health, United

States Department of

Labor, Respondents,

Cast Metals Federation, International Union, United

Automobile, Aerospace and Agricultural Implement Workers of

America, United Steelworkers of America, AFL-CIO-CLC et al.,

Shipbuilders Council of America, Oil, Chemical and Atomic

Workers International Union, AFL-CIO, Dixie Metals Company,

National Constructors Association, General Motors

Corporation, Bunker Hill Company, Standard Industries, and

Schuykill Metals Corporation, Intervenors.

No. 79-1048.

United States Court of Appeals, District of Columbia Circuit

August 15, 1980

Argued Nov. 1, 1979.

As Amended Jan. 30, 1981.

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George H. Cohen, Washington, D. C., with whom James M. Harris, Julia Penny Clark, and Robert M. Weinberg, Washington, D. C., Norman M. Berger, Philadelphia, Pa., and Mary Win-O'Brien and James D. English, Pittsburgh, Pa., were on the brief, for petitioner United Steelworkers of America, AFL-CIO-CLC.

W. Scott Railton, Pittsburgh, Pa., with whom James Kearney, Pittsburgh, Pa., Jerome Powell and Robert A. Emmett, Washington, D. C., and Paul L. Landry, John McN. Cramer, and John M. Wood, Pittsburgh, Pa., were on the brief, for petitioners American Iron and Steel Institute et al.

Standish F. Medina, Jr., New York City, with whom Nicole A. Gordon, New York City, and Edwin H. Seeger, Washington, D. C., were on the brief, for petitioners Lead Industries Ass'n, Inc. et al.

Elroy H. Wolff and Linda S. Peterson, Washington, D. C., were on the brief for petitioners Battery Council Intern., et al.

Thaddeus Holt, William J. Kilberg, and Lawrence Z. Lorber, Washington, D. C., were on the brief for petitioner ASARCO Inc.

William V. Hearnburg and James W. Kesler, Carrollton, Ga., were on the brief for petitioner Southwire Co.

Richard O'Brecht and Bruce Hamill, Washington, D. C., were on the brief for petitioners National Paint and Coatings Ass'n, Inc. et al.

Hugh M. Finneran, Pittsburgh, Pa., and Horace A. Thompson, III, New Orleans, La., were on the brief for petitioner PPG Industries, Inc.

Carl F. Goodman, New York City, with whom Jeanne S. Conroy, Washington, D. C., Charles G. Hollis, and Frank R. Saunders, New York City, and James A. DeBois, San Francisco, Cal., were on the brief, for petitioners South Central Bell Tel. Co. et al.

Robert V. Zener, Washington, D. C., and Edward J. Dilworth, Jr., Detroit, Mich., were on the brief for petitioners General Motors Corp., Ford Motor Co., and Chrysler Corp.

Edward L. Merrigan, Washington, D. C., with whom Edward F. Schiff and David A. Donohoe, Washington, D. C., were on the brief, for petitioners National Ass'n of Recycling Industries, Inc. et al.

Page 1201

Joseph C. Carter, Jr., David F. Peters, and John J. Adams, Richmond, Va., and Horace A. Thompson, III, New Orleans, La., were on the brief for petitioner Ethyl Corp.

Dennis K. Kade, Asst. Counsel for Appellate Litigation, Dept. of Labor, and Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Dept. of Labor, Washington, D. C., a member of the bar of the Supreme Court of the United States, pro hac vice, by special leave of court, with whom Allen H. Feldman, Acting Counsel for Appellate Litigation, Nancy L. Southard, Acting Asst. Counsel for Appellate Litigation, and Richard L. Gross and Lorelli J. Borland, Attys., Randy S. Rabinowitz (law clerk), Dept. of Labor, Washington, D. C., were on the brief, for respondents.

Robert D. Moran, Washington, D. C., was on the brief for intervenor Cast Metals Federation.

Claude D. Montgomery, Detroit, Mich., with whom John A. Fillion, Judith A. Scott, and M. Jay Whitman, Detroit, Mich., were on the brief, for intervenor International Union, United Auto., Aerospace and Agricultural Implement Workers of America.

Allan J. Topol and Steven S. Rosenthal, Washington, D. C., were on the brief for intervenor Shipbuilders Council of America.

Robert Stulberg, with whom Girardeau A. Spann and William B. Schultz, Washington, D. C., were on the brief, for intervenor Oil, Chemical and Atomic Workers Intern. Union, AFL-CIO.

Vincent J. Fuller and Peter J. Kahn, Washington, D. C., were on the brief for intervenor Dixie Metals Co.

Stephen C. Yohay, with whom Anthony J. Obadal and Steven R. Semler, Washington, D. C., were on the brief, for intervenor National Constructors Ass'n.

Edwin H. Seeger, Carl B. Nelson, Jr., and John T. Golden, Washington, D. C., were on the brief for intervenor Bunker Hill Co.

Frank M. Coates, Jr., Baton Rouge, La., was on the brief for intervenor Schuykill Metals Corp.

James R. Richards, Washington, D. C., was on the brief for amicus curiae Capital Legal Foundation urging that the lead standard be declared invalid.

Marjorie Elizabeth Cox, Los Angeles, Cal., was on the brief for amici curiae California Dept. of Industrial Relations et al. urging affirmance.

Wendy B. Kloner and Douglas L. Parker were on the brief for amici curiae Women's Legal Defense Fund et al. urging affirmance.

Before WRIGHT, Chief Judge, and ROBINSON and MacKINNON, Circuit Judges.

Opinion for the court[**] filed by Chief Judge J. SKELLY WRIGHT.

Page 1202

Dissenting opinion filed by Circuit Judge MacKINNON.

J. SKELLY WRIGHT, Chief Judge:

In November 1978 the Occupational Safety and Health Administration (OSHA), exercising its authority and responsibility under Section 6 of the Occupational Safety and Health Act, 29 U.S.C. § 655 (1976), issued new rules designed to protect American workers from exposure to airborne lead in the workplace. 1 In these consolidated appeals petitioners representing both labor union and industry interests challenge virtually every aspect of the new lead standard and the massive rulemaking from which it emerged. 2 The unions 3 claim that

Page 1203

OSHA has failed to carry out its statutory duty to ensure that "no employee will suffer material impairment of health * * *." Id. § 655(b)(5). 4 The industry parties 5 charge OSHA with almost every procedural sin of which an agency can be guilty in informal rulemaking, attack some of the most important substantive provisions of the standard as exceeding OSHA's statutory authority, and assert that the agency has failed to present substantial evidence to support the factual bases of the standard. Though the numerous challenges to the standard and the size and complexity of the rulemaking require of us a lengthy analysis of the issues, we affirm most of the new occupational lead standard, remanding to the agency for reconsideration only the question of the feasibility of the standard for a number of the affected industries. 6

I. BACKGROUND

Lead exists naturally in the earth's crust, the atmosphere, and the hydrosphere. For thousands of years human beings have found lead crucial to the manufacture of a vast number of essential products. For centuries we have recognized the health hazards of such use. We learned long ago that lead absorption through inhalation and ingestion could cause printers to lose movement

Page 1204

in their fingers, and pottery and glass workers to suffer the "dry grippe." For almost a century we have known that excessive lead absorption can injure the kidneys and the peripheral and central nervous systems of painters, plumbers, and industrial workers. 5295 2/3. We do not know to a scientific certainty that precise levels of air-lead exposure or blood-lead content at which different lead-induced diseases occur. That question, indeed, has been central to this rulemaking. 7 We do know that in the United States today, where industry consumes annually over one million tons of lead, at least 800,000 workers, representing 120 occupations in over 40 industries, are exposed to airborne lead on the job and thereby face the dangers of lead poisoning.

As scientific means for measuring lead exposure and lead absorption have improved over the last 50 years, scientists and the government have set lower and lower figures for the maximum tolerable level of airborne lead exposure, but have struggled in setting a precise permissible exposure limit (PEL). A PEL of 500 ug/m 3 (500 micrograms of lead per cubic meter of air) was once the consensus figure, but in 1933 the United States Public Health Service recommended, and many industries at least theoretically adopted, a goal of 150 ug/m 3. In 1957 the American Conference of Governmental Industrial Hygienists increased the recommended maximum to 200 ug/m 3, but in 1971 lowered it once again to 150 ug/m 3. Joint Appendix (JA) 1487-1491; 5295 2/3-5295 3/1. However, in that same year, 1971, the newly created Occupational Safety and Health Administration, acting without rulemaking under Section 6(a) of the OSH Act, 29 U.S.C. § 655(a) (1976), adopted the "national consensus standard" recommended by the American National Standards Institute, which set a PEL, measured as an eight-hour time-weighted average, of 200 ug/m 3. Two years later the Director of the National Institute for Occupational Safety and Health (NIOSH) advised the Secretary of Labor to lower the PEL to 150 ug/m 3 yet again, and two years after that, in August 1975, the NIOSH Director suggested that the Secretary lower the PEL still further.

In response, on October 3,...

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227 practice notes
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    ...2008); Miami-Dade County v. U.S. E.P.A., 529 F.3d 1049, 1059 (11th Cir. 2008); United Steelworkers of America, AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1221 (D.C. Cir. 1980) (``a final rule may properly differ from a proposed rule and indeed must so differ when the record evidence warrants t......
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    ...Cotton Dust, 452 U.S. at 508-09. Feasibility has two aspects, economic and technological. United Steelworkers of Am. v. Marshall, 647 F.2d 1189, 1264 (D.C. Cir. 1981) (``Lead I''). A standard is technologically feasible if the protective measures it requires already exist, can be brought in......
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    ...the salaries of workers who cannot work due to high blood lead levels (29 CFR 1910.1025(k); see United Steelworkers, AFL-CIO v. Marshall, 647 F.2d 1189, 1238 (D.C. Cir. 1980)). And it is well established that the Occupational Safety and Health Review Commission may order employers to pay ba......
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    ...operations some of the time.'' Kennecott Greens Creek, 476 F.3d at 957 (citing United Steelworkers of America v. Secretary of Labor, 647 F.2d 1189, 1264 (D.C. Cir. 1980) and quoting AISI v. OSHA, 577 F.2d 825, 832-35 (3d Cir. 1978)). Economic feasibility presents different issues from that ......
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    ...new and different criticisms which the agency might find convincing.' " Id. (quoting United Steelworkers of America v. Marshall, 647 F.2d 1189, 1225 (D.C.Cir.1980), cert. denied, 453 U.S. 913, 101 S.Ct. 3148, 69 L.Ed.2d 997 (1981)). The court also refused to accept the EPA's argument t......
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    ...sense. Certainly, we ought not jump to the conclusion that the Board is endeavoring to mislead us. See United Steelworkers v. Marshall, 647 F.2d 1189, 1217 (D.C. Cir.1980), cert. denied, 453 U.S. 913, 101 S.Ct. 3149, 69 L.Ed.2d 997 (1981); FTC v. Owens-Corning Fiberglas Corp., 626 F.2d 966,......
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    ...See Industrial Union Department, AFL-CIO v. Hodgson, 499 F.2d 467, 472-74 (D.C.Cir.1974). As we noted in United Steelworkers v. Marshall, 647 F.2d 1189, 1206-07 (D.C.Cir.1980), cert. denied, 453 U.S. 913, 101 S.Ct. 3148, 69 L.Ed.2d 997 The peculiar problem of reviewing the rules of agencies......
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    ...contact between administrative personnel and outside parties ever arises." Id. In United Steelworkers of America v. Marshall, 647 F.2d 1189 (D.C.Cir.1980), the D.C. Circuit rejected an objection to the use of consultants' reports similar to the one urged by plaintiffs here. In that cas......
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    ...likely trump contrary (that is, more permissive) CBA terms. See discussion infra; see also United Steelworkers of America v. Marshall, 647 F.2d 1189, 1236 (D.C. Cir. 1980) (noting duty to bargain with unions over safety and health matters does not excuse employers from complying with OSHA s......
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