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

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtSTEPHEN F. WILLIAMS
Citation37 F.3d 665
Parties, 63 USLW 2284, 16 O.S.H. Cas. (BNA) 2065, 1994 O.S.H.D. (CCH) P 30,555 INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, Petitioners, v. OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR, Respondent, The Dow Chemical Company, American Petroleum Institute, National Confections Association, Chocolate Manufacturers Association, Oil, Chemical & Atomic Workers International Union, Intervenors.
Decision Date21 October 1994
Docket Number89-1657,Nos. 89-1559,90-1533 and 93-1361

Page 665

37 F.3d 665
308 U.S.App.D.C. 368, 63 USLW 2284,
16 O.S.H. Cas. (BNA) 2065,
1994 O.S.H.D. (CCH) P 30,555
INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE &
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, Petitioners,
v.
OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, U.S. DEPARTMENT
OF LABOR, Respondent,
The Dow Chemical Company, American Petroleum Institute,
National Confections Association, Chocolate
Manufacturers Association, Oil, Chemical
& Atomic Workers International
Union, Intervenors.
Nos. 89-1559, 89-1657, 90-1533 and 93-1361.
United States Court of Appeals,
District of Columbia Circuit.
Argued Sept. 8, 1994.
Decided Oct. 21, 1994.

Page 667

Petitions for Review of an Order of the Occupational Safety & Health Administration.

W. Scott Railton, argued the cause for petitioner the Nat. Ass'n of Mfrs. With him on the briefs was Jan S. Amundson.

Bruce Justh, Associate Counsel, U.S. Dept. of Labor, argued the cause for respondent. With him on the brief was Barbara Werthmann, Counsel, U.S. Department of Labor. John Shortall, Cynthia L. Attwood and Joseph M. Woodward, entered an appearance.

On the brief for Intern. Union, United Auto., Aerospace & Agr. Implement Workers of America, UAW and Oil, Chemical & Atomic Workers Intern. Union (realigned as intervenors in support of OSHA), were David C. Vladeck, Jordan Rossen and Ralph Jones.

Toby A. Threet, entered an appearance for intervenor the Dow Chemical Co. G. William Frick, entered an appearance for intervenor American Petroleum Institute. David B. Robinson entered an appearance for intervenor Nat. Confections Ass'n and Chocolate Mfrs. Ass'n. William H. Crabtree and V. Mark Slywynski, entered an appearance for intervenor American Auto. Mfrs. Ass'n.

Before: WALD, WILLIAMS and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

STEPHEN F. WILLIAMS, Circuit Judge:

In International Union, UAW v. OSHA, 938 F.2d 1310 (D.C.Cir.1991), we remanded a regulation to the Occupational Safety & Health Administration on the ground that, although we believed the controlling statute was susceptible of a construction narrow enough to satisfy the nondelegation doctrine, see A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935), the agency had apparently not adopted such a construction. Finding that the interpretation OSHA has set forth on remand embodies an adequate constraint on its discretion, we now dismiss the petition for review.

* * *

In 1989 OSHA issued a regulation designed to protect workers who perform maintenance or servicing operations on powered industrial equipment from the hazard of energy unexpectedly released from that equipment. "Control of Hazardous Energy Sources (Lockout/Tagout)". 54 Fed.Reg. 36,644 (1989) (codified as amended at 29 C.F.R. Sec. 1910.147 (1993)). Issued pursuant to the Occupational Safety and Health Act (the "OSH Act"), 29 U.S.C. Secs. 651 et seq. (1988), the standard essentially requires an employer to affix a "lock" to an energy isolating device connected to the equipment ("lockout"), or, if the employer can prove its equal efficacy (or the equipment is unlockable), to place a "tag" on the energy isolating device, warning employees not to operate the device or the equipment until the tag is removed ("tagout"). With limited exceptions, the standard applies to all powered industrial equipment in industrial workplaces.

The National Association of Manufacturers ("NAM") and the International Union, UAW, challenged the standard in this court. The union argued that Sec. 6(b)(5) of the OSH Act, 29 U.S.C. Sec. 655(b)(5), required OSHA to promulgate a stricter standard than it had, while

Page 668

NAM argued that that section was inapplicable to safety regulation and that, in the absence of an intelligible congressional guide, OSHA could not lawfully promulgate any safety regulation at all. The petitioners also alleged several defects in the standard and the procedures leading to its adoption.

We found that OSHA's authority in regulating safety hazards (i.e., hazards that produce immediately noticeable harm) was not governed by Sec. 6(b)(5), which applies only to health hazards, but by Sec. 3(8), 29 U.S.C. Sec. 652(8), which defines an "occupational safety and health standard" as a standard "reasonably necessary or appropriate" to the agency's overall goals of ensuring "safe or healthful employment and places of employment." International Union I, 938 F.2d at 1313-17. OSHA's then-stated interpretation of Sec. 3(8), however, appeared to assume in the agency an authority to choose freely among levels of stringency, from adopting no standard at all to adopting the most stringent standard feasible. Id. at 1317, 1321. Concluding that such free-wheeling authority might well violate the nondelegation doctrine, we remanded the case to the agency to give it the opportunity to adopt an interpretation of Sec. 3(8) that would be both "reasonable and consistent with the nondelegation doctrine." Id. at 1313. We also remanded for OSHA to reveal the reasoning behind a number of its choices about the structure of the rule. Id. at 1322, 1323-24.

OSHA issued a Supplemental Statement of Reasons on March 30, 1993. 58 Fed.Reg. 16,612. Arguing that this Statement failed to cure the defects we identified in the first round, NAM again asks that we vacate the standard. Because we find that OSHA's current interpretation of its statutory authority to issue safety standards is consistent with the nondelegation doctrine and that its explanations of the other disputed decisions are adequate, we uphold the regulation.

* * *

The Supplemental Statement of Reasons delineates OSHA's view of the statutory bounds of its authority to issue safety standards. The agency points primarily to several principles--most of them not derived from Sec. 3(8) itself but from other sections, including some not directly applicable, such as Sec. 6(b)(5)--that constrain its discretion in choosing a safety...

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9 practice notes
  • 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
    ...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 possible, consistent with its li......
  • 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
    ...by OSHA after a remand by this court and upheld by this court in International Union, UAW v. OSHA ("Lockout/Tagout II"), 37 F.3d 665 (D.C.Cir.1994). But there, in fact, OSHA allowed itself to set only standards falling somewhere between maximum feasible stringency and some "m......
  • St. of Michigan v. U.S. Envt'l Protection Agency, Nos. 98-1497
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 3, 2000
    ...costs of safety standards [being] reasonably related to their benefits." See International Union v. OSHA (Lockout/Tag out II), 37 F.3d 665, 66869 (D.C. Cir. 1994) (quoting OSHA's final rule). OSHA's reaction to the term "significant" seems to confirm what some commentators ha......
  • Nat'l Mar. Safety Ass'n v. Occupational Safety & Health Admin., No. 09–1050.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 17, 2011
    ...be both economically and technologically feasible. See Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. OSHA, 37 F.3d 665, 668 (D.C.Cir.1994). “To establish technological feasibility, OSHA, after consulting the best available evidence, must prove a reasonable po......
  • Request a trial to view additional results
8 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
    ...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 possible, consistent with its li......
  • 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
    ...by OSHA after a remand by this court and upheld by this court in International Union, UAW v. OSHA ("Lockout/Tagout II"), 37 F.3d 665 (D.C.Cir.1994). But there, in fact, OSHA allowed itself to set only standards falling somewhere between maximum feasible stringency and some "m......
  • St. of Michigan v. U.S. Envt'l Protection Agency, Nos. 98-1497
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 3, 2000
    ...costs of safety standards [being] reasonably related to their benefits." See International Union v. OSHA (Lockout/Tag out II), 37 F.3d 665, 66869 (D.C. Cir. 1994) (quoting OSHA's final rule). OSHA's reaction to the term "significant" seems to confirm what some commentators ha......
  • Nat'l Mar. Safety Ass'n v. Occupational Safety & Health Admin., No. 09–1050.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 17, 2011
    ...be both economically and technologically feasible. See Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. OSHA, 37 F.3d 665, 668 (D.C.Cir.1994). “To establish technological feasibility, OSHA, after consulting the best available evidence, must prove a reasonable po......
  • Request a trial to view additional results

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