ASARCO, Inc. v. Occupational Safety and Health Admin.
| Decision Date | 07 April 1981 |
| Docket Number | 78-2764,78-3038,78-2477 and 78-2478,Nos. 78-1959,s. 78-1959 |
| Citation | 647 F.2d 1 |
| Parties | 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. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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.
Before BROWNING, Chief Judge, HUG, Circuit Judge, and HOFFMAN, * District Judge.
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 act within the bounds of the statute and without intruding upon the administrative province, (we) may adjust (our) relief to the exigencies of the case in accordance with the equitable principles governing judicial action." Ford Motor Co. v. NLRB, 305 U.S. 364, 373, 59 S.Ct. 301, 306, 83 L.Ed. 221 (1939).
We recently applied this principle in Western Oil & Gas Association v. EPA, 633 F.2d 803 (9th Cir. 1980). We remanded "attainment status designations" to the Environmental Protection Agency (EPA) because of the Agency's failure to comply with the notice and comment provisions of the Administrative Procedure Act; but, "influenced by the possibility of undesirable consequences," we left the challenged designations in effect until the EPA could correct its procedural error. Id. at 813. And in a case similar to our own, the D.C. Circuit recently left in effect OSHA standards regulating employee exposure to airborne lead pending a remand for the taking of additional evidence on the feasibility of the standard. United Steelworkers of America v. Marshall, 647 F.2d 1189 at 1311, (D.C.Cir. 1980).
We are persuaded that the inorganic arsenic standard should remain in effect during the remand period. Respondent has presented several studies it believes demonstrate a serious health risk would result if the current standard for maximum exposure at 10 ug/m 3 were not maintained. Petitioners challenge the studies on various grounds, but the studies at least suggest caution before subjecting workers unnecessarily to risks we cannot accurately predict. Western Oil & Gas Association v. EPA, 633 F.2d at 813. In addition, it is undisputed that exposure to inorganic arsenic at the level of 500 ug/m 3 which would be...
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