763 F.2d 728 (3rd Cir. 1985), 83-3554, United Steelworkers of America, AFL-CIO-CLC v. Auchter
|Docket Nº:||83-3554, 83-3561, 83-3565, 84-3066, 84-3093 and 84-3128.|
|Citation:||763 F.2d 728|
|Party Name:||1984-1985 O.S.H.D. ( 27,293 UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, Petitioner, v. Thorne G. AUCHTER, Assistant Secretary of Labor, Occupational Safety and Health Administration, United States Department of Labor, Respondent, and The State of New York, the State of New Jersey, the State of Connecticut, and National Paint & Coatings Association|
|Case Date:||May 24, 1985|
|Court:||United States Courts of Appeals, Court of Appeals for the Third Circuit|
Argued March 18, 1985.
[Copyrighted Material Omitted]
George H. Cohen, Robert M. Weinberg, Jeremiah A. Collins, Gary L. Sasso, Bredhoff & Kaiser, Washington, D.C., James D. English, Mary-Win O'Brien, United Steelworkers of America, Pittsburgh, Pa., Laurence Gold (argued), Washington, D.C., Joseph Lurie, Galfand, Berger, Senesky, Lurie & March, Philadelphia, Pa., for United Steelworkers of America, AFL-CIO-CLC.
Francis X. Lilly, Solicitor of Labor Frank A. White (argued), Associate Solicitor for Occupational Safety and Health, Karen I. Ward, Associate Solicitor for Sp. Appellate and Supreme Court Litigation, Mary-Helen Mautner, Counsel for Appellate Litigation, Judith A. Macaluso, Asst. Counsel for Appellate Litigation, U.S. Dept. of Labor, Washington, D.C., Dennis K. Kade, Nathaniel Spiller, (argued), Domenique Kirchner, U.S. Dept. of Labor, Washington, D.C., for respondent, Thorne G. Auchter, Asst. Secretary of Labor, OSHA, U.S. Dept. of Labor.
Robert Abrams, Atty. Gen. of the State of N.Y., Carlin Meyer, Asst. Atty. Gen., In Charge of Labor Bur., James A. Sevnsky, Asst. Atty. Gen. In Charge of Environmental Protection Bur., Nancy Stearns (argued), Jane Lauer Barker, Asst. Attys. Gen., New York State Dept. of Law, New York City, for the State of N.Y.
Irwin I. Kimmelman, Atty. Gen. of N.J., Michael R. Cole, First Asst. Atty. Gen., Michael S. Bokar, Deputy Atty. Gen., Richard J. Hughes Justice Complex, Trenton, N.J., for the State of N.J.
Joseph I. Lieberman, Atty. Gen., Richard T. Couture, Asst. Atty. Gen., Hartford, Conn., for the State of Conn.
Timothy J. Waters, Jeanne A. Carpenter, Jeffrey N. Martin, Peabody, Lambert & Meyers, A Professional Corp., Washington, D.C., Bruce Hamill, Gen. Counsel, James Andrew Doyle, National Paint and Coatings Ass'n, Washington, D.C., for Nat. Paint and Coatings Ass'n, Inc.
Richard E. Schwartz, Collier, Shannon, Rill & Scott, Washington, D.C., for the American Iron and Steel Institute as amicus curiae.
Stark Ritchie, Arnold S. Block, Christopher H. Marraro, American Petroleum Institute, Washington, D.C., John P. Meck, Atlantic Richfield Co., Los Angeles, Cal., for American Petroleum Institute, et al.
David C. Vladeck (argued), Alan B. Morrison, Public Citizen Litigation Group, Washington, D.C., for Public Citizen Litigation Group.
Neil F. Hartigan, Atty. Gen., State of Ill., Lee Hettinger, Chief, Stephen Grossmark, Asst. Atty. Gen., Environmental Control Div., Chicago, Ill., for the People of the State of Ill.
Francis X. Bellotti, Atty. Gen., Judith S. Yogman, Asst. Atty. Gen., Stephen S. Ostrach (argued), Asst. Atty. Gen., Government Bureau, Boston, Mass., for petitioner Com. of Mass.
Daniel Marcus (argued), Charles E. Davidow, Wilmer, Cutler & Pickering, Washington, D.C., David F. Zoll, Claire M. Boccella, Chemical Manufacturers Ass'n, Washington, D.C., for Chemical Manufacturers Ass'n.
Beverly Gross, Linda M. Nelson, New York City, for amicus curiae Municipal Labor Committee.
Paul Bardacke, Atty. Gen., Douglas Meiklejohn, Asst. Atty. Gen., Christopher
Coppin, Asst. Atty. Gen., Santa Fe, N.M., for amicus curiae State of N.M. and the New Mexico Health and Environment Dept.
Peter A. Joy, Cleveland, Ohio, Clifford S. Mitchell, American Medical Student Ass'n, Reston, Va., Peter S. Levine, Nat. Lawyers Guild, Shaker Heights, Ohio, for amicus curiae American Medical Student Ass'n.
Frederick J. Jacobs, New York City, for N.Y. Committee for Occupational Safety and Health.
Bronson C. LaFollette, Atty. Gen., Nadim Sahar, Asst. Atty. Gen., Wis. Dept. of Justice, Madison, Wis., for amicus curiae State of Wis.
Chauncey H. Browning, Atty. Gen., Leonard Knee, Deputy Atty. Gen., Edward Z. Fox, Asst. Atty. Gen., Charleston, W.V., for amicus curiae for the State of W.V.
Before GIBBONS, Circuit Judge, and FISHER, Chief Judge [*] and KELLY, District Judge [**]
GIBBONS, Circuit Judge:
This case involves consolidated petitions for judicial review of the Hazard Communications Standard promulgated by the Secretary of Labor on the authority of the Occupational Safety and Health Act of 1970 (OSH Act) 1, Pub.L. 91-596, 84 Stat. 1590, 29 U.S.C. Sec. 651 et seq. (1982) Certain intervenors challenge our jurisdiction to consider the petitions pursuant to 29 U.S.C. Sec. 655(f) (1982), contending that the action under review is a regulation rather than a standard. Petitioners and the Secretary urge that we have jurisdiction. Petitioners and intervenors challenge the standard on several substantive grounds, while the Secretary defends it. We conclude that the petitions for review are properly here, and thus address the substantive challenges.
Evolution of the Standard
Section 6 of the OSH Act directs the Secretary of Labor to promulgate occupational safety and health standards to further the purpose of the Act "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions...." 29 U.S.C. Secs. 651(b) and 655(b)(1) (1982). Any standard promulgated by the Secretary
shall prescribe the use of labels or other appropriate forms of warning as are necessary to insure that employees are apprised of all hazards to which they are exposed, relevant symptoms and appropriate emergency treatment, and proper conditions and precautions of safe use or exposure.
29 U.S.C. Sec. 655(b)(7) (1982).
In 1974, the National Institute for Occupational Safety and Health (NIOSH), an agency created by section 22 of the OSH Act, 29 U.S.C. Sec. 671 (1982), recommended that the Secretary promulgate a standard requiring employers to inform employees of potentially hazardous materials in the workplace. 47 Fed.Reg. 12095 (1982). Later that year the Secretary appointed an
advisory committee to develop standards for implementation of the statutory provision requiring labels or other appropriate forms of warning. That advisory committee issued its report on June 6, 1975, recommending a classification of hazards, the use of warning devices such as labels and placards, disclosure of chemical data, and employee training programs. Id. at 12096.
The 1975 Committee report did not result in prompt action by the Secretary. In 1976 a House of Representatives subcommittee held oversight hearings during which several committee members expressed concern over the Secretary's failure to promulgate a comprehensive Hazard Communication Standard. Control of Toxic Substances in the Workplace: Hearings Before the Subcomm. on Manpower and Housing of the House Comm. on Government Operations, 94th Cong. 2d Sess. 87, 89-90 (1976). Seventeen months later, the full House Committee on Government Operations issued a Report which criticized the agency for "miserly use of its delegated powers to deal with disease and death-dealing toxic substances." House Comm. on Government Operations, Failure to Meet Commitments Made in the Occupational Safety and Health Act, H.R.Rep. No. 710, 95th Cong., 1st Sess. 13 (1977). The Committee concluded that:
The Department of Labor should exercise its power under the Occupational Safety and Health Act to insure that employers and workers can and will know what kinds of toxic dangers are present in the Nation's workplaces. OSHA should require chemical formulators to identify any regulated substance in products they sell.
Id. at 15.
Eventually, on January 16, 1981 the agency published a notice of proposed rulemaking entitled "Hazards Identification." 46 Fed.Reg. 4412-53. The standard proposed would be applicable to employers in Division D. Standard Industrial Classification Codes 20-39, which include only employers in the manufacturing sector. Id. at 4426. This classification of employers is made by type of activity for the purpose of promoting uniformity and comparability in the presentation of statistical data. Executive Office of the President, Office of Management and Budget, Standard Industrial Classification...
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