939 F.2d 975 (D.C. Cir. 1991), 79-1054, American Iron & Steel Institute v. Occupational Safety and Health Admin.

Docket Nº:79-1054, 79-1078, 79-1111 and 82-1135.
Citation:939 F.2d 975
Party Name:AMERICAN IRON AND STEEL INSTITUTE and Bethlehem Steel Corporation, et al., Petitioners, v. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION and United States Department of Labor, et al., Respondents, United Steelworkers of America, AFL-CIO-CLC, et al., Intervenors, and Consolidated Cases Nos. 79-1078, 79-1111 & 82-1135.
Case Date:July 19, 1991
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 975

939 F.2d 975 (D.C. Cir. 1991)

AMERICAN IRON AND STEEL INSTITUTE and Bethlehem Steel

Corporation, et al., Petitioners,

v.

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION and United

States Department of Labor, et al., Respondents,

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

and Consolidated Cases Nos. 79-1078, 79-1111 & 82-1135.

Nos. 79-1054, 79-1078, 79-1111 and 82-1135.

United States Court of Appeals, District of Columbia Circuit.

July 19, 1991

Page 976

Argued April 12, 1991.

Page 977

On Petitions for Review of Final Agency Action by the Occupational Safety and Health Administration.

W. Scott Railton, with whom Christopher L. Killion and Barton C. Green were on the brief, for American Iron and Steel Institute, petitioner in No. 79-1054 and intervenor in No. 82-1135. Jerome Powell and Robert A. Emmett also entered appearances for American Iron and Steel Institute.

Jennifer M. Porter, for Lead Industries Ass'n, petitioner in No. 79-1078 and intervenor in No. 82-1135. Robert N. Steinwurtzel and Susan J. Panzik were on the brief for Lead Industries Ass'n. John H. Hall, Edwin H. Seeger, and Carl B. Nelson, Jr. also entered appearances, for Lead Industries Ass'n.

Edward L. Merrigan, for Institute of Scrap Recycling Industries, Inc. (successor to Nat. Ass'n of Recycling Industries, Inc.), petitioner in No. 79-1111 and intervenor in No. 82-1135.

George H. Cohen, with whom Jeremiah A. Collins and Randy S. Rabinowitz were on the brief, for United Steelworkers of America, AFL-CIO-CLC, petitioner in No. 82-1135 and intervenor in Nos. 79-1054 and 79-1078, and International Union, UAW, intervenor in No. 79-1054. James D. English, James M. Harris, Mary Win-O'Brien, and Julia Penny Clark also entered appearances for United Steelworkers of America. John A. Fillion, M. Jay Whitman, and Claude D. Montgomery also entered appearances for Intern. Union, UAW.

Bruce Justh, Atty., Dept. of Labor, with whom Cynthia L. Attwood, Associate Sol. for Occupational Safety and Health, Barbara Werthmann, Counsel for Appellate Litigation and John Shortall, Atty., Dept. of Labor, were on the brief, for respondents in Nos. 79-1054, 79-1078, 79-1111, and 82-1135. Joseph M. Woodward, Nancy L. Southard, Allen H. Feldman, Dennis K. Kade, and Sandra Lord, Attys., Dept. of Labor, also entered appearances for respondents.

John W. Wilmer, Jr. for intervenors Brass and Bronze Ingot Manufacturers and American Cast Metals Ass'n (formerly Cast Metals Federation) in Nos. 79-1054 and 82-1135. Robert D. Moran also entered an appearance for intervenors.

Carl F. Goodman entered an appearance for South Central Bell Telephone Co., petitioner in No. 79-1054 and intervenor in No. 82-1135.

Page 978

Girardeau A. Spann and William B. Schultz entered appearances for intervenor Oil, Chemical and Atomic Workers Intern. Union, AFL-CIO, in No. 79-1054.

Anthony J. Obadal and Steven R. Semler entered appearances for intervenor National Constructors Ass'n in No. 79-1054.

Allan J. Topol and W. Patrick Morris entered appearances for Shipbuilders Council of America, intervenor in Nos. 79-1054 and 82-1135.

Edmond J. Dilworth, Jr. and Robert V. Zener entered appearances for intervenors General Motors Corp., et al. in Nos. 79-1078 and 82-1135.

Frank M. Coates, Jr. entered an appearance for intervenor Schuylkill Metals Corp. in No. 79-1078.

Elroy H. Wolff and Linda S. Peterson entered appearances for intervenor Battery Council Intern. in No. 82-1135.

William J. Kilberg entered an appearance for intervenor ASARCO, Inc. in No. 82-1135.

Michael J. Cozzillio entered an appearance for intervenor RSR Corp. in No. 82-1135.

Bruce Hamill entered an appearance for intervenor National Paint and Coatings Ass'n in No. 82-1135.

Hugh M. Finneran entered an appearance for intervenor PPG Industries, Inc. in No. 82-1135.

James A. Debois entered an appearance for intervenor American Tel. and Tel. Co. in No. 82-1135.

Before MIKVA, Chief Judge, and WALD and SILBERMAN, Circuit Judges.

Opinion for the Court filed PER CURIAM. [*]

PER CURIAM:

In United Steelworkers of America v. Marshall, 647 F.2d 1189 (D.C.Cir.1980), cert. denied, 453 U.S. 913, 101 S.Ct. 3148, 69 L.Ed.2d 997 (1981), this court affirmed most aspects of regulations promulgated by the Occupational Safety and Health Administration ("OSHA") governing worker exposure to airborne lead. We remanded the record to OSHA, however, for reconsideration of OSHA's findings on technological and economic feasibility for a number of industries. This proceeding presents challenges from six of those industries to OSHA's feasibility findings on remand. We affirm OSHA's conclusions in all respects, except for its finding of economic feasibility for the brass and bronze ingot industry. Because the latter finding was not based on substantial evidence and was made in violation of the notice and comment provisions of the Administrative Procedure Act, we vacate that portion of OSHA's rulemaking and remand the record to OSHA for further proceedings.

  1. BACKGROUND

    1. Procedural History

      On November 14, 1978, OSHA, exercising its authority under section 6 of the Occupational Safety and Health Act ("OSH Act"), 29 U.S.C. Sec. 655 (1988), promulgated comprehensive regulations designed to protect American workers from exposure to airborne lead in the workplace. See 43 Fed.Reg. 52,952, 53,007-14 (1978) (codified as amended at 29 C.F.R. Sec. 1910.1025 (1990)). The regulations set a permissible exposure limit ("PEL") of fifty micrograms per cubic meter of air (50 ug/m 3 ) averaged over an eight-hour period, see 29 C.F.R. Sec. 1910.1025(c), which employers must achieve, to the extent feasible, by a combination of engineering and work practice controls. See 29 C.F.R. Sec. 1910.1025(e)(1). The regulations also contain a number of supporting provisions, including requirements for housekeeping, air monitoring, employee education and training, recordkeeping, medical surveillance, and medical removal protection. The prior standard had imposed a limit of 200 ug/m 3 but contained

      Page 979

      no other protective requirements. See 29 C.F.R. Sec. 1910.1000, Table Z-2 (1978).

      A number of industry groups, labor unions, and individual companies challenged various aspects of the new standard, leading to this court's decision in Steelworkers. The Steelworkers court affirmed OSHA's actions in most respects, including OSHA's decision to mandate a PEL of 50 ug/m 3 . See Steelworkers, 647 F.2d at 1311. However, for all but ten industries, the court concluded that OSHA had failed to carry its statutory burden of demonstrating that a 50 ug/m 3 PEL was feasible to implement. For the thirty-eight industries where feasibility had not been adequately established, the court remanded the record to OSHA for further proceedings. Pending OSHA's reconsideration, the court stayed the requirement that these industries comply with the 50 ug/m 3 PEL by engineering and work practice controls alone, but mandated that they meet the PEL "by some combination of engineering, work practice, and respirator controls." Id.

      In December 1981, OSHA announced that it had found the 50 ug/m 3 PEL technologically and economically feasible for all but nine of the remand industries and stated that further investigation was required to determine whether the standard was feasible for those nine. See 46 Fed.Reg. 60,758, 60,761-62 (1981). OSHA also amended section 1910.1025(e)(1) of the lead standard in several respects. First, consistent with Steelworkers, the amendments made clear that individual employers who are unable to comply with the 50 ug/m 3 PEL may escape penalty by demonstrating that, despite a finding that the standard is feasible for the industry as a whole, they have lowered exposure levels as far as they feasibly can with engineering and work practice controls. In such cases, supplementary use of respirators is permitted. Second, OSHA amended the standard to provide that, regardless of feasibility, respirators may be used with or in place of engineering and work practice controls to achieve the 50 ug/m 3 PEL if employees are exposed to levels higher than that for thirty or fewer days each year. Employers qualifying for this exemption are still required, however, to use engineering and work practice controls to reduce exposures below 200 ug/m 3 . Finally, OSHA made clear that, in addition to the Steelworkers mandate that the remand industries achieve the 50 ug/m 3 with supplementary use of respirators, if needed, during the pendency of the remand proceedings, they also were required to comply with the preexisting PEL of 200 ug/m 3 through use of engineering and work practice controls alone during that period. See id. at 60,759-61, 60,775-76.

      At OSHA's request, this court remanded the record again in March 1987 to determine the feasibility of the standard for the remaining industries. In July 1989, OSHA announced that it had found the standard feasible for eight of the nine industries. See 54 Fed.Reg. 29,142 (1989). For the ninth, non-ferrous foundries, OSHA concluded that although the 50 ug/m 3 PEL was technologically feasible for the industry, it was not economically feasible because of the severe effects it would have on the small foundry segment of the industry. See id. at 29,245-46. OSHA then moved for another remand of the record to determine whether a PEL between 50 and 200 ug/m 3 would be economically feasible for the foundry industry. This court granted the motion, and in January 1990 OSHA concluded that a PEL of 75 ug/m 3 was economically feasible for small foundries (those with fewer than twenty employees) and reaffirmed its earlier conclusion that a PEL of 50 ug/m 3 was economically feasible for large foundries...

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