ASARCO, Inc. v. Occupational Safety and Health Admin., Nos. 78-1959

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore BROWNING, Chief Judge, HUG; PER CURIAM
Citation647 F.2d 1
Parties9 O.S.H. Cas.(BNA) 1508, 1981 O.S.H.D. (CCH) P 25,351 ASARCO, INC., The Bunker Hill Company, Koppers Company, Inc., Magma Copper Company and Phelps Dodge Corporation, Petitioners, v. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, United States Department of Labor, Respondent. The ANACONDA COMPANY and Kennecott Copper Corp., Petitioners, v. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, United States Department of Labor, Respondent. GENERAL MOTORS CORPORATION and Chrysler Corporation, Petitioners, v. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, United States Department of Labor, Respondent.
Decision Date07 April 1981
Docket Number78-2764,78-3038,78-2477 and 78-2478,Nos. 78-1959

Page 1

647 F.2d 1
9 O.S.H. Cas.(BNA) 1508, 1981 O.S.H.D. (CCH) P 25,351
ASARCO, INC., The Bunker Hill Company, Koppers Company,
Inc., Magma Copper Company and Phelps Dodge
Corporation, Petitioners,
v.
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, United States
Department of Labor, Respondent.
The ANACONDA COMPANY and Kennecott Copper Corp., Petitioners,
v.
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, United States
Department of Labor, Respondent.
GENERAL MOTORS CORPORATION and Chrysler Corporation, Petitioners,
v.
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, United States
Department of Labor, Respondent.
Nos. 78-1959, 78-2764, 78-3038, 78-2477 and 78-2478.
United States Court of Appeals,
Ninth Circuit.
Decided April 7, 1981.
As Amended May 15, 1981.

Ralph J. Moore, Jr., Shea & Gardner, Washington, D.C., Alfred V. J. Prather, Prather, Seeger, Doolittle & Farmer, Washington, D.C., Walter B. Connolly, Pepper, Hamilton & Scheetz, Washington, D.C., on brief for petitioners.

Ann D. Nachbor, Dennis K. Kade, Washington, D.C., Bernard Kleiman, Chicago, Ill., on brief, for respondent.

George H. Cohen, Stephen P. Berzon, Washington, D.C., James D. English, Pittsburgh, Pa., for intervenor's.

Page 2

Before BROWNING, Chief Judge, HUG, Circuit Judge, and HOFFMAN, * District Judge.

PER CURIAM:

Petitioners challenge federal standards regulating employee exposure to inorganic arsenic (29 C.F.R. 1910.1018). All parties agree that the matter should be remanded to the Occupational Safety and Health Administration (OSHA) for reconsideration in light of the Supreme Court's decision in Industrial Union Department v. American Petroleum Institute, 448 U.S. 607, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980).

The parties disagree, however, as to what steps should be taken to protect employees' health and safety in the interim. The petitioners ask that we vacate the standard, shifting the burden to OSHA to promulgate emergency temporary standards pursuant to its authority under 29 U.S.C. § 655(c); respondent asks that we leave the standard in effect pending resubmission of this matter to this court, or further order of this court, except insofar as petitioners have obtained stays from this court or variances from respondent.

We recognize the general rule that "(i)f the decision of the agency 'is not sustainable on the administrative record made, then the decision must be vacated and the matter remanded for further consideration.' "

Nevertheless, "while (we) must...

To continue reading

Request your trial
3 practice notes
  • United States v. Means, No. CIV 81-5131
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • December 9, 1985
    ...an agency to perform such duties as the law imposes on it, and the scope of review is governed by 5 U.S.C. § 706." See also Asarco v. OSHA, 647 F.2d 1, 2 (9th V. Appeal. For all of the reasons set out above, the Court does not intend this Order to be a "final decision" for the purposes of 2......
  • ASARCO, Inc. v. Occupational Safety and Health Admin., AFL-CIO
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 30, 1984
    ...did indeed pose a significant risk at the then-existing 500 ug/m 3 level. ASARCO conceded that such a risk existed. ASARCO Inc. v. OSHA, 647 F.2d 1, 2 (9th Cir.1981). Our remand was limited to the "significant risk" issue although we did leave open the possibility that the remand could be m......
  • Southeast Alaska Conservation Council v. Watson, Civ. No. J81-12.
    • United States
    • United States District Courts. 9th Circuit. District of Alaska
    • April 2, 1982
    ...Ford Motor Co. v. NLRB, 305 U.S. 364, 373, 59 S.Ct. 301, 306, 83 L.Ed. 221 (1939); Asarco, Inc. v. Occupational Safety & Health Ad., 647 F.2d 1, 2 (9th Cir. 1981) (amended decision) (per curiam). In this case ANILCA mandates, pursuant § 503(h)(5), expedited judicial review of any challenge ......
3 cases
  • United States v. Means, No. CIV 81-5131
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • December 9, 1985
    ...an agency to perform such duties as the law imposes on it, and the scope of review is governed by 5 U.S.C. § 706." See also Asarco v. OSHA, 647 F.2d 1, 2 (9th V. Appeal. For all of the reasons set out above, the Court does not intend this Order to be a "final decision" for the purposes of 2......
  • ASARCO, Inc. v. Occupational Safety and Health Admin., AFL-CIO
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 30, 1984
    ...did indeed pose a significant risk at the then-existing 500 ug/m 3 level. ASARCO conceded that such a risk existed. ASARCO Inc. v. OSHA, 647 F.2d 1, 2 (9th Cir.1981). Our remand was limited to the "significant risk" issue although we did leave open the possibility that the remand could be m......
  • Southeast Alaska Conservation Council v. Watson, Civ. No. J81-12.
    • United States
    • United States District Courts. 9th Circuit. District of Alaska
    • April 2, 1982
    ...Ford Motor Co. v. NLRB, 305 U.S. 364, 373, 59 S.Ct. 301, 306, 83 L.Ed. 221 (1939); Asarco, Inc. v. Occupational Safety & Health Ad., 647 F.2d 1, 2 (9th Cir. 1981) (amended decision) (per curiam). In this case ANILCA mandates, pursuant § 503(h)(5), expedited judicial review of any challenge ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT