International Union, United Auto., Aerospace & Agr. Implement Workers of America, UAW v. Occupational Safety & Health Admin., Nos. 89-1559

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore WILLIAMS, HENDERSON and RANDOLPH; STEPHEN F. WILLIAMS; STEPHEN F. WILLIAMS; HENDERSON
Citation938 F.2d 1310
Docket NumberNos. 89-1559,89-1657 and 90-1533
Decision Date12 July 1991
Parties, 60 USLW 2085, 15 O.S.H. Cas.(BNA) 1145, 1991 O.S.H.D. (CCH) P 29,399 INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, Petitioner, v. OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, U.S. Department of Labor, Respondent, The Dow Chemical Company, American Petroleum Institute, National Confections Association, Chocolate Manufacturers Association, Intervenors. NATIONAL ASSOCIATION OF MANUFACTURERS, Petitioner, v. OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, U.S. Department of Labor, Elizabeth Dole, Secretary of Labor, Respondents, Motor Vehicle Manufacturers Association of the United States, Intervenor. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, Oil, Chemical & Atomic Workers International Union, Petitioners, v. OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, U.S. Department of Labor, Respondents.

Page 1310

938 F.2d 1310
291 U.S.App.D.C. 51, 60 USLW 2085, 15
O.S.H. Cas.(BNA) 1145,
1991 O.S.H.D. (CCH) P 29,399
INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE &
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, Petitioner,
v.
OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, U.S. Department
of Labor, Respondent,
The Dow Chemical Company, American Petroleum Institute,
National Confections Association, Chocolate
Manufacturers Association, Intervenors.
NATIONAL ASSOCIATION OF MANUFACTURERS, Petitioner,
v.
OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, U.S. Department
of Labor, Elizabeth Dole, Secretary of Labor, Respondents,
Motor Vehicle Manufacturers Association of the United
States, Intervenor.
INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE &
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW,
Oil, Chemical & Atomic Workers
International Union, Petitioners,
v.
OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, U.S. Department
of Labor, Respondents.
Nos. 89-1559, 89-1657 and 90-1533.
United States Court of Appeals,
District of Columbia Circuit.
Argued January 15, 1991.
Decided July 12, 1991.

Page 1311

W. Scott Railton, with whom Alexander P. Starr and Jan S. Amundson were on the brief, for petitioner Nat. Ass'n of Mfrs. in No. 89-1657.

Randy S. Rabinowitz, with whom Jordan Rossen, Ralph Jones and David C. Vladeck were on the brief, for petitioner Intern.

Page 1312

Union, UAW and intervenor Oil, Chemical and Atomic Workers Union in Nos. 89-1559 and 90-1533.

John Shortall, Atty., Dept. of Labor, with whom Cynthia L. Attwood, Associate Sol., Occupational Safety & Health Admin., Barbara Werthmann, Counsel, and Barbara A.W. McConnell, Atty., Dept. of Justice, were on the brief, for respondent in Nos. 89-1559, 89-1657 and 90-1533.

David B. Robinson, with whom Lawrence P. Halprin was on the joint brief, for intervenors Chocolate Mfrs. Ass'n and Nat. Confectioners Ass'n. in Nos. 89-1559 and 89-1657.

Toby A. Threet, with whom G. William Frick, and Barton L. Stringham for American Petroleum Institute, were on the joint brief, for intervenors The Dow Chemical Co. and American Petroleum Institute in No. 89-1559.

William H. Crabtree and Thomas R. Merlino were on the brief, for intervenor Motor Vehicle Mfrs. Ass'n of the U.S. Inc. in No. 89-1657. V. Mark Slywynski also entered an appearance for intervenor.

Before WILLIAMS, HENDERSON and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILLIAMS.

Separate concurring opinion filed by Circuit Judge WILLIAMS.

Separate concurring opinion filed by Circuit Judge HENDERSON.

STEPHEN F. WILLIAMS, Circuit Judge:

Representatives of labor and industry challenge a regulation of the Occupational Safety and Health Administration, 1 "Control of Hazardous Energy Sources (Lockout/Tagout)". 54 Fed.Reg. 36,644 (1989). The regulation deals not with the effects of such subtle phenomena as electrical energy fields but with those of ordinary industrial equipment that may suddenly move and cut or crush or otherwise injure a worker. 2 "Lockout" and "tagout" are two procedures designed to reduce these injuries. Lockout is the placement of a lock on an "energy isolating device", such as a circuit breaker, so that equipment cannot start up until the lock is removed. See 29 CFR Sec. 1910.147(b) (1990). Tagout is the similar placement of a plastic tag to alert employees that the tagged equipment "may not be operated" until the tag is removed. See id. Although OSHA had previously issued specific standards governing especially dangerous equipment, 3 the present rule extends lockout/tagout to virtually all equipment in almost all industries. See 29 CFR Sec. 1910.147(a)(1)(ii) (1990). It generally requires employers to use lockout procedures during servicing and maintenance, unless the employer can show that tagout will provide the same level of safety. See id. Sec. 1910.147(c)(2)(ii).

The first issue we address is the claim of petitioner UAW that Sec. 6(b)(5) of the Occupational Safety and Health Act, 29 U.S.C. Sec. 655(b)(5) (1988), provides the statutory criteria for the lockout rule. Its claim is that the hazard involved is a "harmful physical agent[ ]" as that term is used in the first sentence of Sec. 6(b)(5), and that,

Page 1313

even if the first sentence of Sec. 6(b)(5) is not applicable, the remaining sentences are. OSHA resists both theories, and we find its interpretation reasonable.

The exclusion of Sec. 6(b)(5) from the picture takes us to the claim of the National Association of Manufacturers that Congress has given so little guidance for rules issued under Sec. 6(b) but not covered by Sec. 6(b)(5) that as to such rules the Act invalidly delegates legislative authority. Although we reject that claim, we find that the interpretation offered by the Secretary is, in light of nondelegation principles, so broad as to be unreasonable. We note, however, the existence of at least one interpretation that is reasonable and consistent with the nondelegation doctrine.

Thus, after addressing some objections to the rule that appear likely to survive any reasonable interpretation the Secretary may adopt, we remand the case to the Secretary for further consideration.

I

Section 6(b)(5) of the Act 4 limits the Secretary's discretion when he is promulgating standards that deal with "toxic materials or harmful physical agents". He must adopt "the standard which most adequately assures, to the extent feasible, ... that no employee will suffer material impairment of health or functional capacity." Id. The Supreme Court has interpreted this language to require that the proposed standard be both technologically and economically "feasible", American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 101 S.Ct. 2478, 69 L.Ed.2d 185 (1981) ("Cotton Dust "), a criterion the Court appeared to regard as satisfied so long as the costs of a standard would not "threaten[ ] the competitive stability of an industry", id. at 530 n. 55, 101 S.Ct. at 2501 n. 55. OSHA and the courts have since embellished that concept. See, e.g., National Cottonseed Products Ass'n v. Brock, 825 F.2d 482, 487-88 (D.C.Cir.1987). The union argues that Sec. 6(b)(5) applies to this case. We agree with OSHA that it does not.

OSHA interprets Sec. 6(b)(5) as applicable only to "health" standards. It views these as coextensive with standards governing latent hazards, such as carcinogens, "which are frequently undetectable to the casual observer because they are subtle or develop slowly or after latency periods", Brief of OSHA at 24, and contrasts them with "safety" standards, such as the lockout regulation, which address hazards that cause immediately visible physical harm. 5 We accord considerable weight to an agency's construction of a statutory scheme it is entrusted to administer, rejecting it only if unreasonable. See Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 843, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984).

The union plays a dictionary game to support its view, noting definitions of "physical" as "of or pertaining to matter or energy", and of "agent" as "an active force or substance producing an effect".

Page 1314

The lockout rule of course relates to both "matter" and "energy" and controls their "effects". But it is hard to imagine a workplace hazard within Congress's reach that involves neither matter nor energy, and that produces no "effect". Indeed, the union's notion of physical agents would engulf Sec. 6(b)(5)'s companion term, "toxic materials". More important, the union's reading would obliterate a distinction that Congress drew between "health" and "safety" risks. It referred in the Act's preamble to efforts aimed at

exploring ways to discover latent diseases, establishing causal connections between diseases and work in environmental conditions, and conducting other research relating to health problems, in recognition of the fact that occupational health standards present problems often different from those involved in occupational safety....

29 U.S.C. Sec. 651(b)(6) (1988) (emphasis added).

Other sections of the Act confirm the more limited reading for "harmful physical agents". Section 8(c)(3), 29 U.S.C. Sec. 657(c)(3) (1988), for instance, uses the phrase "toxic materials or harmful physical agents" in association with words that make sense primarily (if not exclusively) for the sort of gradually accumulating hazards depicted by OSHA. It speaks of records of workers' "exposures" to "harmful physical agents", and of notice to workers when their exposure is "in concentrations or at levels" exceeding those of a standard. Similarly, Sec. 20(a)(3), 29 U.S.C. Sec. 669(a)(3) (1988), directs the Secretary of Health and Human Services to develop criteria for safe "exposure levels" for "toxic materials and harmful physical agents and substances". And Sec. 20(a)(5), 29 U.S.C. Sec. 669(a)(5) (1988), authorizes regulations for reporting workers' "exposure" to hazardous "substances or physical agents" and for medical exams and tests to develop information on the subject. OSHA's idea of harmful physical agents fits all these terms well, while many hazards covered by the union's reading do not fit them at all.

The union extracts an argument from Sec. 6(c)(1), which grants the Secretary authority to promulgate emergency standards when he finds that "employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards". See 29 U.S.C. Sec. 655(c)(1)(A) (1988) (emphasis added). It says that this section "plainly encompasses the kind of harm at issue here", and since it uses the "physically harmful" phrase, the use of similar language in Sec. 6(b)(5) should be construed broadly. See Brief for Union at 31. Neither element of the linkage is sound. First, we think it more likely that Sec. 6(c)(1) applies only to new hazards or to materials whose hazardous character is newly discovered. Such revelations seem improbable about saw blades, drill...

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26 practice notes
  • Part II
    • United States
    • Federal Register February 28, 2006
    • February 28, 2006
    ...feasible. See International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW v. OSHA, 938 F.2d 1310, 1313 (D.C. Cir. 1991); Control of Hazardous Energy Sources (Lockout/Tagout), Final rule; supplemental statement of reasons, (58 FR 16612, March 30, Ev......
  • State of S.D. v. U.S. Dept. of Interior, No. 94-2344
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 7, 1995
    ...history and context, see Garfinkel, 29 F.3d at 458, and any narrowing agency interpretation, see International Union, UAW v. OSHA, 938 F.2d 1310 (D.C.Cir.1991); 37 F.3d 665 (D.C.Cir.1994) (decision after remand). But in this case, the agency has interpreted the statute as broadly as possibl......
  • American Trucking Associations, Inc. v. U.S. E.P.A., Nos. 97-1440
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 14, 1999
    ...point. The latitude EPA claims here seems even broader than that OSHA asserted in International Union, UAW v. OSHA ("Lockout/Tagout I"), 938 F.2d 1310, 1317 (D.C.Cir.1991), which was to set a standard that would reduce a substantial risk and that was not infeasible. In that case, OSHA thoug......
  • Am. Waterways Operators v. Wheeler, Case No. 18-cv-02933 (APM)
    • United States
    • U.S. District Court — District of Columbia
    • November 30, 2020
    ...added) (internal quotation marks omitted); see also Int'l Union, United Auto., Aerospace & Agr. Implement Workers of Am., UAW v. OSHA , 938 F.2d 1310, 1319 (D.C. Cir. 1991) (" ‘Reasonableness’ has long been associated with the balancing of costs and benefits."). "Reasonable availability" th......
  • Request a trial to view additional results
23 cases
  • State of S.D. v. U.S. Dept. of Interior, No. 94-2344
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 7, 1995
    ...history and context, see Garfinkel, 29 F.3d at 458, and any narrowing agency interpretation, see International Union, UAW v. OSHA, 938 F.2d 1310 (D.C.Cir.1991); 37 F.3d 665 (D.C.Cir.1994) (decision after remand). But in this case, the agency has interpreted the statute as broadly as possibl......
  • American Trucking Associations, Inc. v. U.S. E.P.A., Nos. 97-1440
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 14, 1999
    ...point. The latitude EPA claims here seems even broader than that OSHA asserted in International Union, UAW v. OSHA ("Lockout/Tagout I"), 938 F.2d 1310, 1317 (D.C.Cir.1991), which was to set a standard that would reduce a substantial risk and that was not infeasible. In that case, OSHA thoug......
  • Am. Waterways Operators v. Wheeler, Case No. 18-cv-02933 (APM)
    • United States
    • U.S. District Court — District of Columbia
    • November 30, 2020
    ...added) (internal quotation marks omitted); see also Int'l Union, United Auto., Aerospace & Agr. Implement Workers of Am., UAW v. OSHA , 938 F.2d 1310, 1319 (D.C. Cir. 1991) (" ‘Reasonableness’ has long been associated with the balancing of costs and benefits."). "Reasonable availability" th......
  • Midwest Inst. of Health, PLLC v. Governor of Mich. (In re Certified Questions from the U.S. Dist. Court), No. 161492
    • United States
    • Supreme Court of Michigan
    • October 2, 2020
    ...19 on in American Trucking and even more emphatically in its immediate precursor, International Union, UAW v. OSHA ("Lockout/Tagout I") , 938 F.2d 1310 (D.C. Cir. 1991). There we noted that the scope of the agency's "claimed power to roam" was "immense, encompassing all American enterprise.......
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1 books & journal articles
  • A 'Cost-Benefit State'? Reports of Its Birth Have Been Greatly Exaggerated
    • United States
    • Environmental Law Reporter Nbr. 46-11, November 2016
    • November 1, 2016
    ...well known for his advocacy of CBA on and of the bench. International Union, United Auto Workers v. Occupational Safety & Health Admin., 938 F.2d 1310, 1319 (D.C. Cir. 1991); see Stephen F. Williams, Cost-Beneit Analysis Colloquy: Squaring the Vicious Circle , 53 Admin. L. Rev. 257, 270 (20......

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