United Steelworkers of America, AFL-CIO-CLC v. Marshall, AFL-CIO-CL

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore WRIGHT, Chief Judge, and ROBINSON and MacKINNON; J. SKELLY WRIGHT; MacKINNON
Parties, 10 Envtl. L. Rep. 20,784, 8 O.S.H. Cas.(BNA) 1810, 1980 O.S.H.D. (CCH) P 24,717 UNITED STEELWORKERS OF AMERICA,etitioner, * v. F. Ray MARSHALL, Secretary of Labor, United States Department of Labor, and Doctor Eula Bingham, Assistant Secretary for Occupational Safety and Health, United States Department of Labor, Respondents, Cast Metals Federation, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, United Steelworkers of America,et al., Shipbuilders Council of America, Oil, Chemical and Atomic Workers International Union,ixie Metals Company, National Constructors Association, General Motors Corporation, Bunker Hill Company, Standard Industries, and Schuykill Metals Corporation, Intervenors.
Decision Date30 January 1981
Docket NumberAFL-CIO-CLC,No. 79-1048,AFL-CI,D,AFL-CIO-CL,P

Page 1189

647 F.2d 1189
208 U.S.App.D.C. 60, 10 Envtl. L. Rep. 20,784,
8 O.S.H. Cas.(BNA) 1810,
1980 O.S.H.D. (CCH) P 24,717
UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, Petitioner,
*
v.
F. Ray MARSHALL, Secretary of Labor, United States
Department of Labor, and Doctor Eula Bingham,
Assistant Secretary for Occupational
Safety and Health, United
States Department of
Labor, Respondents,
Cast Metals Federation, International Union, United
Automobile, Aerospace and Agricultural Implement Workers of
America, United Steelworkers of America, AFL-CIO-CLC et al.,
Shipbuilders Council of America, Oil, Chemical and Atomic
Workers International Union, AFL-CIO, Dixie Metals Company,
National Constructors Association, General Motors
Corporation, Bunker Hill Company, Standard Industries, and
Schuykill Metals Corporation, Intervenors.
No. 79-1048.
United States Court of Appeals,
District of Columbia Circuit.
Argued Nov. 1, 1979.
Decided Aug. 15, 1980.
As Amended Jan. 30, 1981.

George H. Cohen, Washington, D. C., with whom James M. Harris, Julia Penny Clark, and Robert M. Weinberg, Washington, D. C., Norman M. Berger, Philadelphia, Pa., and Mary Win-O'Brien and James D. English, Pittsburgh, Pa., were on the brief, for petitioner United Steelworkers of America, AFL-CIO-CLC.

W. Scott Railton, Pittsburgh, Pa., with whom James Kearney, Pittsburgh, Pa., Jerome Powell and Robert A. Emmett, Washington, D. C., and Paul L. Landry, John McN. Cramer, and John M. Wood, Pittsburgh, Pa., were on the brief, for petitioners American Iron and Steel Institute et al.

Standish F. Medina, Jr., New York City, with whom Nicole A. Gordon, New York City, and Edwin H. Seeger, Washington, D. C., were on the brief, for petitioners Lead Industries Ass'n, Inc. et al.

Elroy H. Wolff and Linda S. Peterson, Washington, D. C., were on the brief for petitioners Battery Council Intern., et al.

Thaddeus Holt, William J. Kilberg, and Lawrence Z. Lorber, Washington, D. C., were on the brief for petitioner ASARCO Inc.

William V. Hearnburg and James W. Kesler, Carrollton, Ga., were on the brief for petitioner Southwire Co.

Richard O'Brecht and Bruce Hamill, Washington, D. C., were on the brief for petitioners National Paint and Coatings Ass'n, Inc. et al.

Hugh M. Finneran, Pittsburgh, Pa., and Horace A. Thompson, III, New Orleans, La., were on the brief for petitioner PPG Industries, Inc.

Carl F. Goodman, New York City, with whom Jeanne S. Conroy, Washington, D. C., Charles G. Hollis, and Frank R. Saunders, New York City, and James A. DeBois, San Francisco, Cal., were on the brief, for petitioners South Central Bell Tel. Co. et al.

Robert V. Zener, Washington, D. C., and Edward J. Dilworth, Jr., Detroit, Mich., were on the brief for petitioners General Motors Corp., Ford Motor Co., and Chrysler Corp.

Edward L. Merrigan, Washington, D. C., with whom Edward F. Schiff and David A. Donohoe, Washington, D. C., were on the brief, for petitioners National Ass'n of Recycling Industries, Inc. et al.

Page 1201

Joseph C. Carter, Jr., David F. Peters, and John J. Adams, Richmond, Va., and Horace A. Thompson, III, New Orleans, La., were on the brief for petitioner Ethyl Corp.

Dennis K. Kade, Asst. Counsel for Appellate Litigation, Dept. of Labor, and Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Dept. of Labor, Washington, D. C., a member of the bar of the Supreme Court of the United States, pro hac vice, by special leave of court, with whom Allen H. Feldman, Acting Counsel for Appellate Litigation, Nancy L. Southard, Acting Asst. Counsel for Appellate Litigation, and Richard L. Gross and Lorelli J. Borland, Attys., Randy S. Rabinowitz (law clerk), Dept. of Labor, Washington, D. C., were on the brief, for respondents.

Robert D. Moran, Washington, D. C., was on the brief for intervenor Cast Metals Federation.

Claude D. Montgomery, Detroit, Mich., with whom John A. Fillion, Judith A. Scott, and M. Jay Whitman, Detroit, Mich., were on the brief, for intervenor International Union, United Auto., Aerospace and Agricultural Implement Workers of America.

Allan J. Topol and Steven S. Rosenthal, Washington, D. C., were on the brief for intervenor Shipbuilders Council of America.

Robert Stulberg, with whom Girardeau A. Spann and William B. Schultz, Washington, D. C., were on the brief, for intervenor Oil, Chemical and Atomic Workers Intern. Union, AFL-CIO.

Vincent J. Fuller and Peter J. Kahn, Washington, D. C., were on the brief for intervenor Dixie Metals Co.

Stephen C. Yohay, with whom Anthony J. Obadal and Steven R. Semler, Washington, D. C., were on the brief, for intervenor National Constructors Ass'n.

Edwin H. Seeger, Carl B. Nelson, Jr., and John T. Golden, Washington, D. C., were on the brief for intervenor Bunker Hill Co.

Frank M. Coates, Jr., Baton Rouge, La., was on the brief for intervenor Schuykill Metals Corp.

James R. Richards, Washington, D. C., was on the brief for amicus curiae Capital Legal Foundation urging that the lead standard be declared invalid.

Marjorie Elizabeth Cox, Los Angeles, Cal., was on the brief for amici curiae California Dept. of Industrial Relations et al. urging affirmance.

Wendy B. Kloner and Douglas L. Parker were on the brief for amici curiae Women's Legal Defense Fund et al. urging affirmance.

Before WRIGHT, Chief Judge, and ROBINSON and MacKINNON, Circuit Judges.

Opinion for the court ** filed by Chief Judge J. SKELLY WRIGHT.

Page 1202

Dissenting opinion filed by Circuit Judge MacKINNON.

J. SKELLY WRIGHT, Chief Judge:

In November 1978 the Occupational Safety and Health Administration (OSHA), exercising its authority and responsibility under Section 6 of the Occupational Safety and Health Act, 29 U.S.C. § 655 (1976), issued new rules designed to protect American workers from exposure to airborne lead in the workplace. 1 In these consolidated appeals petitioners representing both labor union and industry interests challenge virtually every aspect of the new lead standard and the massive rulemaking from which it emerged. 2 The unions 3 claim that

Page 1203

OSHA has failed to carry out its statutory duty to ensure that "no employee will suffer material impairment of health * * *." Id. § 655(b)(5). 4 The industry parties 5 charge OSHA with almost every procedural sin of which an agency can be guilty in informal rulemaking, attack some of the most important substantive provisions of the standard as exceeding OSHA's statutory authority, and assert that the agency has failed to present substantial evidence to support the factual bases of the standard. Though the numerous challenges to the standard and the size and complexity of the rulemaking require of us a lengthy analysis of the issues, we affirm most of the new occupational lead standard, remanding to the agency for reconsideration only the question of the feasibility of the standard for a number of the affected industries. 6

I. BACKGROUND

Lead exists naturally in the earth's crust, the atmosphere, and the hydrosphere. For thousands of years human beings have found lead crucial to the manufacture of a vast number of essential products. For centuries we have recognized the health hazards of such use. We learned long ago that lead absorption through inhalation and ingestion could cause printers to lose movement

Page 1204

in their fingers, and pottery and glass workers to suffer the "dry grippe." For almost a century we have known that excessive lead absorption can injure the kidneys and the peripheral and central nervous systems of painters, plumbers, and industrial workers. 5295 2/3. We do not know to a scientific certainty that precise levels of air-lead exposure or blood-lead content at which different lead-induced diseases occur. That question, indeed, has been central to this rulemaking. 7 We do know that in the United States today, where industry consumes annually over one million tons of lead, at least 800,000 workers, representing 120 occupations in over 40 industries, are exposed to airborne lead on the job and thereby face the dangers of lead poisoning.

As scientific means for measuring lead exposure and lead absorption have improved over the last 50 years, scientists and the government have set lower and lower figures for the maximum tolerable level of airborne lead exposure, but have struggled in setting a precise permissible exposure limit (PEL). A PEL of 500 ug/m 3 (500 micrograms of lead per cubic meter of air) was once the consensus figure, but in 1933 the United States Public Health Service recommended, and many industries at least theoretically adopted, a goal of 150 ug/m 3. In 1957 the American Conference of Governmental Industrial Hygienists increased the recommended maximum to 200 ug/m 3, but in 1971 lowered it once again to 150 ug/m 3. Joint Appendix (JA) 1487-1491; 5295 2/3-5295 3/1. However, in that same year, 1971, the newly created Occupational Safety and Health Administration, acting without rulemaking under Section 6(a) of the OSH Act, 29 U.S.C. § 655(a) (1976), adopted the "national consensus standard" recommended by the American National Standards Institute, which set a PEL, measured as an eight-hour time-weighted average, of 200 ug/m 3. Two years later the Director of the National Institute for Occupational Safety and Health (NIOSH) advised the Secretary of Labor to lower the PEL to 150 ug/m 3 yet again, and two years after that, in August 1975, the NIOSH Director suggested that the Secretary lower the PEL still further.

In response, on October 3, 1975 OSHA published notice of a proposed new standard for occupational lead exposure, which combined a PEL of 100 ug/m 3 with detailed rules for environmental monitoring, employee medical surveillance and training, and other health and safety measures. 40 Fed.Reg. 45934 (1975). 8 OSHA conducted public hearings in March, April, and May, and then again in November and December, 1977, and closed the record on August 8, 1978. It then issued the final standard,...

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182 practice notes
  • Part III
    • United States
    • Federal Register November 15, 2007
    • November 15, 2007
    ...This principle has been upheld by the courts (See, e.g., Forging Industries at 1451-1452). In United Steelworkers of America v. Marshall, 647 F.2d 1189, 1236 (D.C.Cir.1980) the court In passing a massive worker health and safety statute, Congress certainly knew it was laying a basis for age......
  • Part II
    • United States
    • Federal Register February 28, 2006
    • February 28, 2006
    ...the risk significant. * * * Id. OSHA standards must be both technologically and economically feasible. United Steelworkers v. Marshall, 647 F.2d 1189, 1264 (D.C. Cir. 1980) (``The Lead I case''). The Supreme Court has defined feasibility as ``capable of being done.'' American Textile Mfrs. ......
  • Safety and health standards, etc.: Employer payment for personal protective equipment,
    • United States
    • Federal Register March 31, 1999
    • March 31, 1999
    ...654(a) (2), and limits OSHA's enforcement authority to employers. 29 U.S.C. 658, 659(a). See United Steelworkers of America v. Marshall, 647 F.2d 1189, 1230-1231 (D.C. Cir. 1980). This statutory scheme allocates to employers sole legal responsibility for achieving compliance with safety and......
  • Part II
    • United States
    • Federal Register September 30, 2009
    • September 30, 2009
    ...Cotton Dust, 452 U.S. at 508-09. Feasibility has two aspects, economic and technological. United Steelworkers of America v. Marshall, 647 F.2d 1189, 1264 (D.C. Cir. 1981) (``Lead I''). A standard is technologically feasible if the protective measures it requires already exist, can be brough......
  • Request a trial to view additional results
164 cases
  • Johnson Controls, Inc. v. Fair Employment & Housing Com., No. G007029
    • United States
    • California Court of Appeals
    • February 28, 1990
    ...examination provisions of the medical removal program. 2 Page 168 In United Steelworkers of America, Etc. v. Marshall (D.C.Cir.1980) 647 F.2d 1189, concerning the OSHA hearings, it is stated: "OSHA found evidence that lead-exposed males suffer serious harm to their spermatogenesis, includin......
  • Rios v. WASH. DEPT. OF LABOR AND INDUSTRIES, No. 70294-2.
    • United States
    • United States State Supreme Court of Washington
    • February 7, 2002
    ...industry's "`competitive stability.'" ATMI, 452 U.S. at 530 n. 55, 101 S.Ct. 2478 (quoting United Steelworkers of Am. v. Marshall, 647 F.2d 1189, 1265 (D.C.Cir.1980)). This analysis of economic feasibility under RCW 49.17.050(4) must not be confused with the Department's exercise of discret......
  • Mass. Bldg. Trades Council v. United States Dep't of Labor, Occupational Safety & Health Admin. (In re MCP No. 165, Occupational Safety & Health Admin.), 21-7000
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 17, 2021
    ...Unions v. Occupational Safety & Health Admin., 878 F.3d 271, 281 (D.C. Cir. 2017); United Steelworkers of Am., AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1202, 1311 (D.C. Cir. 1980); 29 C.F.R. §§ 1910.141, 1926.51. An occupational safety and health standard is one that "requires conditions, or......
  • Hazardous Waste Treatment Council v. U.S. E.P.A., Nos. 86-1657
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 15, 1989
    ...EPA "to justify any ... standard at all, without explaining why it chose the level it did"); United Steelworkers of America v. Marshall, 647 F.2d 1189, 1207 (D.C.Cir.1980) (agency must "explain the logic and the policies underlying any legislative choice"), cert. denied, 453 U.S. 913, 101 S......
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1 books & journal articles
  • Inside the Black Box
    • United States
    • Administration & Society Nbr. 41-5, September 2009
    • September 1, 2009
    ...of agencies in government: Separation of powers and the fourth branch. Columbia Law Review, 84, 573-633.United Steelworkers v. Marshall, 647 F.2d 1189, 1221 (D.C. Cir. West / Inside the Black Box 599Weber, M. (1946). From Max Weber: Essays in sociology. H. H. Gerth & C. W. Mills (Trans.). N......

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