Louisiana Chemical Ass'n v. Bingham

Citation657 F.2d 777
Decision Date30 September 1981
Docket NumberNo. 80-3724,80-3724
Parties10 O.S.H. Cas.(BNA) 1017, 1981 O.S.H.D. (CCH) P 25,690 LOUISIANA CHEMICAL ASSOCIATION, et al., Plaintiffs-Appellants, v. Eula BINGHAM, Occupational Safety and Health Administration, and Raymond J. Donovan, Defendants-Appellees. . Unit A
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Horace A. Thompson, III, Susan Brooks, New Orleans, La., Richard B. Herzog, Stephen A. Bokat, National Chamber Litigation Center, Inc., Washington, D. C., for plaintiffs-appellants.

Nathaniel I. Spiller, Dennis Kade, U. S. Dept. of Labor, Washington, D. C., for defendants-appellees.

Appeal from the United States District Court for the Western District of Louisiana.

Before CHARLES CLARK, TATE and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

This case raises the issue of whether a records access requirement promulgated by the Secretary of Labor pursuant to Section 6(b) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 655(b) (1976), is in fact a "standard," authorized by Section 6 or is instead a "regulation," authorized under the inspection and record-keeping provisions of Section 8, 29 U.S.C. § 657. The distinction is decisive in locating jurisdiction for appeals from administrative action under the Act. Congress specifically vested exclusive jurisdiction to review Section 6 standards in the Courts of Appeals. 29 U.S.C. § 655(f) (1976). Since Section 8 is silent on appellate jurisdiction, the District Courts are the proper forums for initial review of "regulations." Administrative Procedure Act, 5 U.S.C. § 703 (1976); Association of Nat'l Advertisers, Inc. v. F.T.C., 565 F.2d 237, 239 (2d Cir. 1977); In Re School Bd., 475 F.2d 1117, 1119 (5th Cir. 1973). In resolving this narrow question, we confront the broader task of surveying the conceptual boundary drawn by Congress between standards and regulations.


On May 23, 1980, the Occupational Safety and Health Administration (OSHA) promulgated what it characterized as an "occupational safety and health standard" entitled "Access to Employee Exposure and Medical Records" (Records Access). The new requirements first appeared at 45 Fed.Reg. 35212 (1980) with extensive supplementary explanation. Controversy has arisen over OSHA's original characterization of the rule, 1 and even in its preamble to the new rule the Administration offered both Section 6(b) (standards) and Section 8 subsections (c) and (g) (regulations) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 655(b), 657(c), and (g) (1976), as authority for the promulgation. See 45 Fed.Reg. 35212 (1980). OSHA persistently has described the rule as a Section 6(b) "occupational safety and health standard," however, and it has been duly codified at 29 C.F.R. § 1910.20 (1980). Part 1910 is that section of the Code reserved for OSHA standards.

The new rule, which applies to employment in all industries covered by the Act except agriculture, pertains to employers' medical records of employees' actual or potential exposure to a large number of toxic Appellant Louisiana Chemical Association (LCA) and other interested parties 2 brought suit in the District Court seeking declaratory and injunctive relief against the Records Access rule and a companion rule, 29 C.F.R. § 1913.10 (1980), not issued as a standard and therefore not in question here. The court below determined that the rule was a standard promulgated pursuant to Section 6(b) and properly 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 that the action properly lies in the District Court. We agree and reverse.

substances or other substances which are possibly toxic in particular circumstances or uses. An important feature of the requirement is that its definition of "toxic substances" incorporates the thousands of substances listed in the National Institute for Occupational Safety and Health (NIOSH) Registry of Toxic Effects of Chemical Substances (Registry). These substances range from everyday household items such as baking soda and sugar to noxious pesticides. It should be stressed that the Records Access rule makes no requirement that employers maintain exposure records. It merely requires that if such records are voluntarily kept they must be preserved and must be made available to employees, designated employee representatives, and OSHA authorities. Employers subject to the rule must preserve the records throughout the employees' employment and for thirty years thereafter.


We address at the outset OSHA's contention that this Court should defer to the agency's interpretation of its authority to act pursuant to Section 6(b). OSHA relies heavily on E. I. duPont de Nemours & Co. v. Train, 430 U.S. 112, 134-35, 97 S.Ct. 965, 978-79, 51 L.Ed.2d 204 (1977), in which the Supreme Court found an agency's statutory construction "sufficiently reasonable to preclude (the Court) from substituting its judgment for that of the Agency." The Court there stressed that the agency's interpretation had received "the overwhelming support of the Courts of Appeals," 430 U.S. at 134, 97 S.Ct. at 978, a condition wholly absent here. Moreover, neither duPont nor any other case advanced by OSHA alters the general proposition, correctly observed by the court below, that while an agency's interpretation of its enabling legislation is a substantial factor for consideration in construing the statute, Miller v. Youakim, 440 U.S. 125, 144, 99 S.Ct. 957, 968, 59 L.Ed.2d 194 (1979), it remains "only one input in the interpretational equation." Zuber v. Allen, 396 U.S. 168, 192, 90 S.Ct. 314, 327, 24 L.Ed.2d 345 (1969). "(T)he role of the agencies remains basically to execute legislative policy; they are no more authorized than are the courts to rewrite acts of Congress." Talley v. Mathews, 550 F.2d 911, 919 (4th Cir. 1977). See also Ernst & Ernst v. Hochfelder, 425 U.S. 185, 213-14, 96 S.Ct. 1375, 1391, 47 L.Ed.2d 668 (1976); Manhattan General Equipment Co. v. Commissioner, 297 U.S. 129, 134, 56 S.Ct. 397, 399, 80 L.Ed. 528 (1936).


Section 3(8) of the Act defines an "occupational safety and health standard" as one that "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 in employment." 29 U.S.C. § 652(8) (1976). There is no corresponding definition of the "regulations" that Section 8 empowers the Secretary of Labor to create respecting the activities inspections, investigations, and recordkeeping covered by that section. Herein lies our problem, for the Section 3(8) For example, OSHA authorized Part 1903 of 29 C.F.R. (Inspections, Citations, and Proposed Penalties) strictly as a cluster of Section 8 regulations (see "authority" preceding 29 C.F.R. § 1903.1 (1980)), yet all of these prescribed actions are arguably "practices" or "methods" appropriate to "providing" safe employment. Under § 1903.16, employers must post citations for violations at or near the place where the violation occurred. Certainly, we need not stretch the bare words of Section 3(8) too far to overlap such a requirement.

definition of standards if broadly interpreted encompasses virtually every requirement that OSHA has promulgated or might ever promulgate as a regulation.

Even more to the point, Part 1904 of 29 C.F.R., also promulgated pursuant to Section 8 of the Act, contains regulations requiring employers to keep a log and summary of occupational injuries and illnesses (§ 1904.2), to retain these records for five years (§ 1904.6), and to provide OSHA, employees and employee representatives with access to the records (§ 1904.7). These regulations are not only directly analogous to the Records Access rule now promulgated as a standard under § 1910.20; they glide perhaps just as easily within the "plain meaning" interpretation of Section 3(8) urged upon us by OSHA.

We may well wonder why the agency has chosen to issue some access rules as regulations and the one at issue here as a standard. The important question, however, is whether Congress empowered it to do so. If any regulatory practice authorized by Section 8 could be swept within the statutory definition of a Section 6 standard, the agency would be free to characterize provisions for "Inspections, Investigations, and Recordkeeping" as regulations or standards at its discretion. In turn, the agency would be totally controlling whether review would be in the District Courts or the Courts of Appeals.

The statute does not create this absolute authority in the agency. Congress authorized in Section 6 a special class of rules reviewable only in the Courts of Appeals. It did not provide for any such accelerated procedure for review of recordkeeping and other rules promulgated as "regulations" under Section 8. We must recognize, therefore, that Congress intended to erect some jurisdictional distinction between Sections 6 and 8, and that allowing the agency to confer the benefits of accelerated review upon "regulations" merely by characterizing them as "standards" would frustrate that legislative intent.

The Supreme Court faced a similar problem in Adamo Wrecking Co. v. United States, 434 U.S. 275, 98 S.Ct. 566, 54 L.Ed.2d 538 (1978), in which the Environmental Protection Agency sought to expand the benefits of a statutory limitation on judicial review by calling a regulation an "emission standard." A "survey of the totality of the statutory scheme" convinced the Court "that Congress intended, within broad limits, that 'emission standards' be regulations of a certain type, and that it did not empower the Administrator, after the manner...

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