American Federation of Labor & Congress of Industrial Organizations v. Marshall, AFL-CIO

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore BAZELON, Senior Circuit Judge, and TAMM and ROBINSON; BAZELON
Citation199 U.S.App.D.C. 54,617 F.2d 636
Decision Date11 January 1980
Docket Number78-1736,CL,I,78-1979,AFL-CIO,POINT-PEPPEREL,Nos. 78-1562,AFL-CI,INC
Parties, 7 O.S.H. Cas.(BNA) 1775, 1979 O.S.H.D. (CCH) P 23,963 AMERICAN FEDERATION OF LABOR & CONGRESS OF INDUSTRIAL ORGANIZATIONS et al., Petitioners, v. Ray MARSHALL, Secretary of Labor, United States Department of Labor, et al., Respondents. COTTON WAREHOUSE ASSOCIATION, Petitioner, v. Ray MARSHALL, Secretary of Labor, United States Department of Labor, and Eula Bingham, Assistant Secretary of Labor, U. S. Department of Labor and Occupational Safety and Health Administration, U. S. Department of Labor. AMERICAN TEXTILE MANUFACTURERS INSTITUTE, INC., Petitioner, v. Dr. Eula BINGHAM, Assistant Secretary of Labor, United States Department of Labor and Occupational Safety and Health Administration, United States Department of Labor, Respondents, American Federation of Labor and Congress of Industrial Organizations; Industrial Union Department,; and Amalgamated Clothing and Textile Workers Union,, CLC, Intervenors. AMERICAN TEXTILE MANUFACTURERS INSTITUTE, INC., Petitioner, v. Dr. Eula BINGHAM, Assistant Secretary of Labor, United States Department of Labor and Occupational Safety and Health Administration, United States Department of Labor, Respondents,, etc., Intervenors, (two cases). MILLIKEN AND COMPANY, Petitioner, v. Ray MARSHALL, Secretary of Labor and Dr. Eula Bingham, Assistant Secretary of Labor, Respondents. ARKWRIGHT MILLS, Petitioner, v. F. Ray MARSHALL, Secretary, Department of Labor, and Eula Bingham, Assistant Secretary of Labor for Occupational Safety and Health, Respondents. SPARTAN MILLS, Petitioner, v. F. Ray MARSHALL, Secretary, Department of Labor, and Eula Bingham, Assistant Secretary of Labor for Occupational Safety and Health, Respondents. BLAIR MILLS, INC., Petitioner, v. F. Ray MARSHALL, Secretary, Department of Labor, and Eula Bingham, Assistant Secretary of Labor for Occupational Safety and Health, Respondents. HERMITAGE, INC., Petitioner, v. F. Ray MARSHALL, Secretary, Department of Labor, and Eula Bingham, Assistant Secretary of Labor for Occup

Page 636

617 F.2d 636
199 U.S.App.D.C. 54, 7 O.S.H. Cas.(BNA) 1775,
1979 O.S.H.D. (CCH) P 23,963
AMERICAN FEDERATION OF LABOR & CONGRESS OF INDUSTRIAL
ORGANIZATIONS et al., Petitioners,
v.
Ray MARSHALL, Secretary of Labor, United States Department
of Labor, et al., Respondents.
COTTON WAREHOUSE ASSOCIATION, Petitioner,
v.
Ray MARSHALL, Secretary of Labor, United States Department
of Labor, and Eula Bingham, Assistant Secretary of Labor, U.
S. Department of Labor and Occupational Safety and Health
Administration, U. S. Department of Labor.
AMERICAN TEXTILE MANUFACTURERS INSTITUTE, INC., Petitioner,
v.
Dr. Eula BINGHAM, Assistant Secretary of Labor, United
States Department of Labor and Occupational Safety
and Health Administration, United States
Department of Labor, Respondents,
American Federation of Labor and Congress of Industrial
Organizations; Industrial Union Department,
AFL-CIO; and Amalgamated Clothing and
Textile Workers Union,
AFL-CIO, CLC, Intervenors.
AMERICAN TEXTILE MANUFACTURERS INSTITUTE, INC., Petitioner,
v.
Dr. Eula BINGHAM, Assistant Secretary of Labor, United
States Department of Labor and Occupational Safety
and Health Administration, United States
Department of Labor, Respondents,
AFL-CIO, etc., Intervenors, (two cases).
MILLIKEN AND COMPANY, Petitioner,
v.
Ray MARSHALL, Secretary of Labor and Dr. Eula Bingham,
Assistant Secretary of Labor, Respondents.
ARKWRIGHT MILLS, Petitioner,
v.
F. Ray MARSHALL, Secretary, Department of Labor, and Eula
Bingham, Assistant Secretary of Labor for
Occupational Safety and Health, Respondents.
SPARTAN MILLS, Petitioner,
v.
F. Ray MARSHALL, Secretary, Department of Labor, and Eula
Bingham, Assistant Secretary of Labor for
Occupational Safety and Health, Respondents.
BLAIR MILLS, INC., Petitioner,
v.
F. Ray MARSHALL, Secretary, Department of Labor, and Eula
Bingham, Assistant Secretary of Labor for
Occupational Safety and Health, Respondents.
HERMITAGE, INC., Petitioner,
v.
F. Ray MARSHALL, Secretary, Department of Labor, and Eula
Bingham, Assistant Secretary of Labor for
Occupational Safety and Health, Respondents.
DAN RIVER, INC., Petitioner,
v.
Dr. Eula BINGHAM, Assistant Secretary of Labor, United
States Department of Labor and Occupational Safety
and Health Administration, United States
Department of Labor, Respondents.
CONE MILLS CORPORATION, Petitioner,
v.
Ray MARSHALL, Secretary of Labor, United States Department
of Labor, and Eula Bingham, Assistant Secretary of Labor,
United States Department of Labor and Occupational Safety
and Health Administration, United States Department of
Labor, Respondents.
MAYFAIR MILLS, Petitioner,
v.
F. Ray MARSHALL, Secretary, Department of Labor, and Eula
Bingham, Assistant Secretary of Labor for
Occupational Safety and Health, Respondents.
SPRINGS MILLS, INC., Petitioner,
v.
Ray MARSHALL, Secretary of Labor, United States Department
of Labor, Dr. Eula Bingham, Assistant Secretary of Labor,
United States Department of Labor and Occupational Safety
and Health Administration, United States Department of
Labor, Respondents.
RIEGEL TEXTILE CORPORATION, Petitioner,
v.
Ray MARSHALL, Secretary of Labor, United States Department
of Labor, Eula Bingham, Assistant Secretary of Labor, United
States Department of Labor, and the Occupational Safety and
Health Administration, United States Department of Labor,
Respondents.
FIELDCREST MILLS, INC., Petitioner,
v.
F. Ray MARSHALL, Secretary of Labor, and Dr. Eula Bingham,
Assistant Secretary of Labor for Occupational Safety and
Health, and the Occupational Safety and Health
Administration, United States Department of Labor, Respondents.
AMERICAN COTTON SHIPPERS ASSOCIATION, Petitioner,
v.
Dr. Eula BINGHAM, Assistant Secretary of Labor, United
States Department of Labor, and Occupational
Safety and Health Administration, United
States Department of Labor,
Respondents.
NATIONAL COTTONSEED PRODUCTS ASSOCIATION, Petitioner,
v.
Ray MARSHALL, Secretary of Labor, United States Department
of Labor and Eula Bingham, Assistant Secretary of Labor,
United States Department of Labor, Occupational Safety and
Health Administration, United States Department of Labor,
Respondents.
NATIONAL COTTON COUNCIL OF AMERICA, Petitioner,
v.
Ray MARSHALL, Secretary of Labor, Eula Bingham, Assistant
Secretary of Labor, Occupational Safety and Health
Administration, United States Department
of Labor, Respondents.
WEST POINT-PEPPERELL, INC., Petitioner,
v.
Ray MARSHALL, Secretary of Labor and Eula Bingham, Assistant
Secretary of Labor, Respondents.
Nos. 78-1562, 78-1736, 78-1979 to 78-1982, 78-1984, 78-1986
to 78-1993, 78- 2013, 78-2014, 78-2016 and 78-2018.
United States Court of Appeals,
District of Columbia Circuit.
Argued Feb. 14, 1979.
Decided Oct. 24, 1979.
As Amended Nov. 14, 1979.
Rehearing Denied Jan. 11, 1980.

Page 643

George H. Cohen, Washington, D. C., with whom Robert M. Weinberg, Jeremiah A. Collins, David M. Silverman, Laurence Gold, Judith Kincaid, Raleigh, N. C., J. Albert Woll, Elliot Bredhoff and Arthur M. Goldberg, Washington, D. C., were on the brief, for AFL-CIO, et al. petitioner in No. 78-1562, and intervenors in Nos. 78-1979, 78-1980 and 78-1981.

Robert E. Payne, Richmond, Va., with whom John S. Battle, Jr., Richmond. Va., Gregory B. Tobin, Greenville, S. C., Edward W. Warren and Arthur F. Sampson III, Washington, D. C., were on the brief, for petitioners American Textile Manufacturers Institute, Inc., et al. in Nos. 78-1562, 78-1979, 78-1980, 78-1981 and 78-1993.

Harlan H. Huntley and Roger L. Tuttle, Danville, Va., were on the brief, for petitioner Dan River, Inc. in No. 78-1988.

Robert T. Thompson, Greenville S. C., with whom Gary S. Klein, Greenville, S. C., was on the brief, for petitioner Milliken and Company in Nos. 78-1982, 78-1986 and 78-1987.

Samuel K. Abrams and Brian E. Moran, Washington, D. C., were on the brief for petitioner Cone Mills Corp. in No. 78-1989.

Carl W. Vogt, Washington, D. C., with whom Joyce E. Reback and Neal P. Gillen, Washington, D. C., were on the brief, for petitioner Cotton Warehouse Association, et al., in Nos. 78-1736, 78-2013 and 78-2014.

Dan M. Byrd, Jr., New York City, was on the brief, for petitioner Springs Mills, Inc. in No. 78-1991.

Robert E. Gregory, Jr., Spartanburg, S. C., was on the brief, for petitioner Sparton Mills in No. 78-1984.

Lovic A. Brooks, Jr. and Charles A. Edwards, Atlanta, Ga., were on brief, for petitioner Riegel Textile Corporation, in No. 78-1992.

Neil Jay King, Alan N. Braverman and Max O. Truitt, Jr., Washington, D. C., were on the brief, for petitioner West Point Pepperell, Inc., in No. 78-2018.

Charles M. Crump, Memphis, Tenn., was on the brief, for petitioner National Cotton Council of America in No. 78-2016.

Allen H. Feldman and John A. Bryson, Attys., Dept. of Labor, Washington, D. C., with whom Thomas L. Holzman, Laura V. Fargas, Gail Lindsay Simmons, Attys., Dept. of Labor, Washington, D. C., were on the brief, for respondent.

Allen A. Lauterbach, Park Ridge, Ill., was on the brief, for Amicus Curiae urging the Secretary's order to be vacated in No. 78-1562.

Before BAZELON, Senior Circuit Judge, and TAMM and ROBINSON, Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge BAZELON.

BAZELON, Senior Circuit Judge:

These consolidated petitions 1 for review challenge a new permanent health standard limiting occupational exposure to cotton dust, 2 which was promulgated by regulation on June 19, 1978 by the Occupational Safety and Health Administration of the Department

Page 644

of Labor (OSHA), under section 6(b)(5) of the Occupational Safety and Health Act of 1970 (the Act). 3 OSHA's action, which rests on its determination that occupational exposure to cotton dust presents a material health hazard to workers, is attacked by three groups of petitioners: (1) representatives of the cotton textile industry 4 and (2) nontextile industries 5 who claim that the standard is unwarranted and infeasible; and (3) their employee unions, who attack two provisions of the standard as too lax, but support the rest. 6 These very divergent claims reflect the wide variety of conflicting interests that make OSHA's task a difficult one. On direct review, 7 we uphold the standard except for its application to the cottonseed oil industry which we remand for clarification or reconsideration.

To assist a proper understanding of the issues, we discuss (I) the history and context of the agency's action; (II) the nature of our review under the Act; (III) the claims of the textile industry; (IV) the claims of the non-textile industries; and (V) challenges to a few technical provisions of the standard.

I. BACKGROUND

A. Health Risks

Health impairments associated with exposure to cotton dust range from acute but reversible reactions to irreversible, chronic obstructive pulmonary disease. 8 Cotton dust exposure can produce or aggravate respiratory symptoms characteristic of chronic bronchitis, asthma, and emphysema. 9 Further, a specific, debilitating disease has been conclusively attributed to the effect of cotton dust on the respiratory passages. This disease, named byssinosis, is more commonly known in its chronic stage as "brown lung disease." 10 This is the most serious health hazard for cotton workers.

Although the prevalence of the disease among cotton workers has been known for centuries, 11 its exact etiology is still not

Page 645

completely understood. 12 The subjective nature of many early symptoms 13 and variations in the composition of cotton dust 14 have compounded the uncertainties about the actual way in which cotton dust exposure causes serious health impairments. 15 Nonetheless, its progressively disabling symptoms are well documented. 16

Typically, a person suffering from byssinosis is initially affected by irritated air passages, coughing, breathlessness, and chest tightness. These symptoms are often accompanied by decreased pulmonary functioning, evidenced by objective indicators. At...

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32 practice notes
  • Sierra Club v. Costle, Nos. 79-1565
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 1, 1981
    ...Id. 277 Brief for Respondent EPA at 31 (citing National Lime Ass'n v. EPA, 627 F.2d 416, 432-33 (D.C.Cir.1980); AFL-CIO v. Marshall, 617 F.2d 636 (D.C.Cir.1979), vacated in part, --- U.S. ----, 101 S.Ct. 56, 66 L.Ed.2d 12, cert. granted in part, --- U.S. ----, 101 S.Ct. 68, 66 L.Ed.2d 19 27......
  • United Steelworkers of America, AFL-CIO-CLC v. Marshall, AFL-CIO-CL
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 30, 1981
    ...well as to the government. Section 1910.1025(n). II. SCOPE OF REVIEW In our recent decision in the cotton dust case, AFL-CIO v. Marshall, 617 F.2d 636 (D.C.Cir.1979), we dealt at length with the criteria for judicial review appropriate to so-called "hybrid rulemaking" in general, and to cas......
  • Lead Industries Ass'n, Inc. v. E.P.A., Nos. 78-2201
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 8, 1980
    ...It is not our function to resolve disagreement among the experts or to judge the merits of competing expert views. AFL-CIO v. Marshall, 617 F.2d 636, 651 & n.66 (D.C.Cir.1979); cf. Hercules Inc. v. EPA, 598 F.2d 91, 115 (D.C.Cir.1978) ("(c)hoice among scientific test data is precisely the t......
  • International Union, United Auto., Aerospace & Agr. Implement Workers of America, UAW v. Occupational Safety & Health Admin., Nos. 89-1559
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 12, 1991
    ...unaffected by Sec. 6(b)(5). The same is true of our decision in the cotton dust litigation. American Federation of Labor v. Marshall, 617 F.2d 636, 662-63 (D.C.Cir.1979) (when OSHA is regulating toxics, "no additional constraint is imposed by [Sec. 3(8) ]"), vacated in part on other grounds......
  • Request a trial to view additional results
31 cases
  • Sierra Club v. Costle, Nos. 79-1565
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 1, 1981
    ...Id. 277 Brief for Respondent EPA at 31 (citing National Lime Ass'n v. EPA, 627 F.2d 416, 432-33 (D.C.Cir.1980); AFL-CIO v. Marshall, 617 F.2d 636 (D.C.Cir.1979), vacated in part, --- U.S. ----, 101 S.Ct. 56, 66 L.Ed.2d 12, cert. granted in part, --- U.S. ----, 101 S.Ct. 68, 66 L.Ed.2d 19 27......
  • United Steelworkers of America, AFL-CIO-CLC v. Marshall, AFL-CIO-CL
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 30, 1981
    ...well as to the government. Section 1910.1025(n). II. SCOPE OF REVIEW In our recent decision in the cotton dust case, AFL-CIO v. Marshall, 617 F.2d 636 (D.C.Cir.1979), we dealt at length with the criteria for judicial review appropriate to so-called "hybrid rulemaking" in general, and to cas......
  • Lead Industries Ass'n, Inc. v. E.P.A., Nos. 78-2201
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 8, 1980
    ...It is not our function to resolve disagreement among the experts or to judge the merits of competing expert views. AFL-CIO v. Marshall, 617 F.2d 636, 651 & n.66 (D.C.Cir.1979); cf. Hercules Inc. v. EPA, 598 F.2d 91, 115 (D.C.Cir.1978) ("(c)hoice among scientific test data is precisely the t......
  • International Union, United Auto., Aerospace & Agr. Implement Workers of America, UAW v. Occupational Safety & Health Admin., Nos. 89-1559
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 12, 1991
    ...unaffected by Sec. 6(b)(5). The same is true of our decision in the cotton dust litigation. American Federation of Labor v. Marshall, 617 F.2d 636, 662-63 (D.C.Cir.1979) (when OSHA is regulating toxics, "no additional constraint is imposed by [Sec. 3(8) ]"), vacated in part on other grounds......
  • Request a trial to view additional results

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