Louisiana Chem. Ass'n v. Bingham
| Decision Date | 29 August 1980 |
| Docket Number | Civ. A. No. 801178,801200 and 801199.,801201 |
| Parties | LOUISIANA CHEMICAL ASSOCIATION v. Eula BINGHAM, Occupational Safety and Health Administration, and Ray Marshall. Columbus P. MILLET, Jr. v. Eula BINGHAM, Asst. Secy. of OSHA and Ray Marshall, Secy. of Labor. Ronald P. CHAUFFE v. Eula BINGHAM, Asst. Secy. of OSHA and Ray Marshall, Secy. of Labor. Harry J. SMITH v. Eula BINGHAM, Asst. Secy. of OSHA and Ray Marshall, Secy. of Labor. |
| Court | U.S. District Court — Western District of Louisiana |
Horace A. Thompson, III, McCalla, Thompson, Pyburn & Ridley, New Orleans, La., Robert V. Zener, Richard B. Herzog, Donald R. Crowell, II and Arthur W. Adelberg, Pepper, Hamilton & Scheetz, Stephen A. Bokat, National Chamber Litigation Center, Inc., Washington, D. C., for plaintiffs, La. Chemical Assoc.
James E. White, Regional Sol., Dallas, Tex., Nathaniel I. Spiller, U. S. Dept. of Labor, Diane E. Burkley, U. S. Dept. of Labor, Washington, D. C., for defendants.
Dennis K. Kade, for Court Standards Litigation, Washington, D. C.
This action involves a challenge to a rule promulgated on May 23, 1980 by the Occupational Safety and Health Administration (OSHA) pursuant to the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq.1 The rule entitled "Access to Employee Exposure and Medical Records" has been published at 45 Fed.Reg. 35212 and is proposed as a new Part 1910.20 to Title 29 of the Code of Federal Regulation.
Plaintiffs include Louisiana Chemical Association ("LCA"), a Louisiana corporation which represents 58 chemical companies doing business throughout the State of Louisiana with facilities in this district and division, and three individuals working in facilities located in this district and division. Joining these plaintiffs is a physician who has intervened pursuant to Rule 24(a), Intervention of Right, of the Federal Rules of Civil Procedure. All claim that they will be adversely affected by this rule and that the rule exceeds several statutory and constitutional restraints upon the authority of OSHA. Pursuant to Rule 65(a) of the Federal Rules of Civil Procedure, plaintiffs moved the court to grant a preliminary injunction barring enforcement of 1910.20. A hearing upon this motion was held on August 18, 1980.
The threshold question presented by this case is whether or not this court has jurisdiction over the subject matter of the controversy. The question turns on whether the rule in issue may be properly characterized as a "standard." Under Section 3(8) of the Occupational Safety and Health Act an occupational safety and health standard is defined as:
A standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.
The procedure for the promulgation, modification or revocation of standards is outlined in Section 6(b). Section 6(f) provides that pre-enforcement judicial review of a standard may be sought by a party potentially adversely affected by a standard only "with the United States Court of Appeals for the circuit wherein such person resides or has his principal place of business . .." Thus if the rule in issue is a standard this court may not properly exercise jurisdiction over this case.
The Occupational Safety and Health Act extends to the Secretary of Labor authority to promulgate rules and regulations other than standards.2 The act is silent as to the proper forum wherein judicial review of such administrative action may be sought.3 As a consequence judicial review of such actions is governed by relevant provisions of the Administrative Procedure Act. 5 U.S.C. § 553 et seq. Under the Administrative Procedure Act, the court would have to determine whether some independent jurisdictional basis existed which would enable it to entertain this suit.4 Such a determination however, awaits the court's preliminary characterization of the rule in question.
The preamble to the rule5 challenged by the plaintiffs repeatedly characterizes the rule as a standard promulgated under the authority of section 6(b).6 If simply calling a rule a standard made it so, OSHA has provided the court with ample justification for refraining from entertaining this suit.7 However, the court is of the opinion that the designation given to a particular rule should most properly be derived from a judicial determination that the disputed rule shares the attributes of the statutory classification into which the rule is claimed to fall. In the present case, this determination requires the court to examine the rule in issue and decide whether it possesses the attributes of a standard as defined in Section 3(8). Since the characterization of the rule presents only a question of statutory interpretation relating to the jurisdiction of this court the conclusion expressed by the preamble will be given proper deference but will not be dispositive of the issue. Zuber v. Allen, 396 U.S. 168, 193, 90 S.Ct. 314, 328, 24 L.Ed.2d 345 (1969); Texas Gas Corp. v. Shell Oil Co., 363 U.S. 263, 270, 80 S.Ct. 1122, 1126, 4 L.Ed.2d 1208 (1960).
As explained in the preamble, the essence of this rule would appear to be that employers in a vast number of industries will be required to assure the preservation of certain employee medical records pertinent to an employee's actual or potential on the job exposure to any one of an ever-expanding number of toxic substances and dangerous conditions. Employers falling within the scope of the rule will be required to preserve the records for the duration of the employee's employment and for thirty years after the employment has terminated. Throughout this time the employer must assure access to these records by the employee, fellow employees exposed or potentially exposed to similar job hazards, designated employee representatives, and to OSHA officials.8
The obvious purpose of the rule is to establish an extremely comprehensive monitoring system which will in time provide a wealth of information relevant to the general purpose of the Occupational Safety and Health Act, i. e., the elimination of hazardous employment conditions through the establishment of uniform national health and safety standards. Another primary purpose of the rule is to enlist the aid of employees and their representatives in the search for and identification of hazardous conditions.
As mentioned earlier an occupational safety and health standard is defined in Section 3(8) of the Act. This definitional provision employs the word "standard" as part of its definition of an occupational safety and health standard. The meaning given to "standard" as used in the definition should therefore be that which enables the word to serve the definitional purpose of the provision. In interpreting the language used in a statute the common sense meaning of words should govern unless the statute or its legislative history suggests that a different technical meaning should be given to the language used. Addison v. Holly Hill Co., 322 U.S. 607, 618, 64 S.Ct. 1215, 1221, 88 L.Ed. 1488 (1944). A definitional provision in a statute is the vehicle by which a word used in the statute may be assigned a technical meaning different from that commonly given the word. A word used in the definitional provision must be given its common sense meaning so that the technical meaning of the word being defined may be clearly understood. As commonly understood a "standard" provides a means of determining what a thing should be. It is a measure against which a thing may be compared to make an immediate determination of whether the thing conforms to established criteria. As used in the definition of an occupational safety and health standard, the word "standard" most rationally denotes a similar meaning with respect to those components of the work environment which affect employee safety. Thus it may be concluded that Congress intended an occupational safety and health standard to establish a measure against which the conditions existing or the practices, means, methods, operations, or processes used in a given work place may be compared for an immediate determination of whether the work place is safe.
An occupational safety and health standard must also address particular hazards existing in a work environment. Before a work place may be made safe by compliance with a standard, there must be a hazard which is reduced through conforming the conditions existing or the practices, means, methods, operations or processes used in the work place to those prescribed by the standard. That Congress intended the identification of hazards as a preliminary step in the standard promulgation process is reflected in both the legislative history and various sections of the Occupational Safety and Health Act. The legislative history of Section 6(b) states that "Standards promulgated under this procedure would include requirements concerning the use of labels or other forms of warning to alert employees to the hazards covered by the standard." U.S.Code Cong. & Admin.News, p. 5183 (1970) (emphasis added). Sections 6(b)(6)(A) and 6(b)(5) of the OSH Act also speak in terms of hazards either dealt with or covered by a standard.
Judicial recognition of the apparent Congressional intent to have standards address hazards may be found in Industrial Union Dept., A.F.L.-C.I.O. v. American Petroleum Institute, ___ U.S. ___, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980). In that case a plurality of the court agreed that with regard to toxic substances "3(8) requires the Secretary of Labor to find as a threshold matter that the toxic substance in question poses a significant health risk in the workplace and that a new, lower standard is therefore `reasonably necessary or appropriate to provide safe or healthful employment or places of employment.'" ___ U.S. at ___...
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Louisiana Chemical Ass'n v. Bingham
...reviewable only in the Courts of Appeals. It accordingly dismissed the complaint for want of subject-matter jurisdiction. 496 F.Supp. 1188 (W.D.La.1980). LCA appeals, contending that OSHA has exceeded its statutory authority by mislabeling a Section 8 regulation as a Section 6 standard, and......
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Louisiana Chemical Ass'n v. Bingham
...was reviewable only directly in a Court of Appeals pursuant to section 6(f) of the Act, 29 U.S.C. § 655(f). Louisiana Chemical Association v. Bingham, 496 F.Supp. 1188 (W.D. La.1980). Upon appeal, the Fifth Circuit held that the basic function of a rule distinguishes a standard from a regul......