United Steelworkers Of America, Afl-Cio-Clc v. F. Ray Marshall

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.

Dissenting opinion filed by Circuit Judge MacKINNON.

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 unions3 claim that 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 parties5 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

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 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, which differed from the proposed standard most noticeably in setting the final PEL at 50 ug/m 3.

Since most of the important provisions of the standard are on appeal, we will carefully explain these provisions and, where relevant, the parallel provisions in the proposed standard, as we address petitioners' separate claims. However, we proceed now to summarize very briefly the scheme of the new lead standard.

The final standard restricts employee exposure to metallic lead, inorganic lead compounds, and organic lead soaps, 5300 7/2; § 1910.1025(b), and applies to almost all workplaces.9 The general scheme of the standard resembles that of earlier OSHA standards.10 It sets a PEL of 50 ug/m 3 and an "action level" of 30 ug/m 3. Sections 1910.1025(b), (c)(1).11 To determine whether exposure in any workplace exceeds the PEL or the action level, the employer must use environmental monitoring to measure airborne lead at least every six months or whenever changes in operations may alter lead exposures, and must warn employees whenever airborne lead exceeds the PEL. Section 1910.1025(d).

All affected employers must meet the 50 ug/m 3 PEL immediately through some combination of engineering controls, work practice or administrative controls,12 and supplemental respirators. However, the industries face deadlines, ranging from one to ten years, by which they must meet first an interim PEL of 100 ug/m 3 and then the final PEL of 50 ug/m 3 solely through engineering and work practice controls. The deadlines for each industry are determined by OSHA's sense of that industry's technological and economic capacity for change. Section 1910.1025(e)(1).13 The precise meaning and practical consequences of these rules on methods of compliance are among the most important issues in this appeal, and we consider them below when we review OSHA's finding that the standard is feasible.

Employers must also file written plans describing the means by which they intend to achieve the PEL without relying on respirators. Section 1910.1025(e) (3). Until these plans are carried out, and whenever engineering controls and work practice controls fail by themselves to achieve the PEL, employees must receive and wear respirators, §§ 1910.1025(e)(2), (f), use of which OSHA has carefully governed by strict rules on selecting, fitting, and testing, § 1910.1025(f). Moreover, where lead exposure exceeds the PEL, the employer must give the employees protective work clothing and equipment, § 1910.1025(g), and in all workplaces the employer must follow rigorous rules on housekeeping and hygiene, §§ 1910.1025(h), (i).

Whenever exposure in a workplace exceeds the action level for more than 30 days in a year, the employer must supplement environmental monitoring with biological monitoring and medical surveillance. Under these rules the employer must measure employees' blood-lead levels at periodic intervals determined by the magnitude of the employees' initial or most recent measured level, § 1910.1025(j)(2), and must also give all employees medical examinations to determine whether the employees suffer or risk any bodily harm from lead exposure, § 1910.1025(j)(3). If an employee challenges the findings of a company physician's medical examination, the employer must pay for a second, and possibly a third, medical examination to assess the accuracy of the first examination, § 1910.1025(j)(3)(iii).

Under one of the most important and controversial parts of the standard, and one relatively without precedent in earlier standards, whenever biological monitoring reveals a worker has an abnormally high blood-lead level or whenever medical surveillance reveals that a worker may suffer actual physical impairment from lead exposure, the employer must remove the employee from the workplace. Section 1910.1025(k). Under this medical removal protection (MRP) provision, the employer may place the removed worker in another, low-exposure, workplace or, if no such workplace is available, may have to place the worker on leave. But whatever the employer's choice, he must, during the period of removal, absolutely guarantee that the removed worker retain the earnings, benefits, and seniority rights of the job from which he was removed for at least 18 months, and the employer cannot return the employee to the original workplace until the lead-induced ailment disappears or the worker's blood-lead level shows significant reduction. Sections 1910.1025(k)(1)(iii)-(v), (k)(2).

Finally, the standard requires employers to create safety and health training programs for their lead-exposed workers, § 1910.1025(l ), to keep detailed records on environmental monitoring in the workplace and on the biological monitoring and medical surveillance of individual workers, and to make those records available to workers and certain of their representatives, as well as to the government. Section 1910.1025(n).

In our recent decision in the cotton dust case, AFL-CIO v. Marshall, 617 F.2d 636 (D.C.Cir.1979), we dealt at length with the criteria for judicial review appropriate to so-called "hybrid rulemaking" in general, and to cases under the OSH Act in particular. In the present case we feel no need to reinvent the wheel by recounting the relevant legislative and judicial history of the OSH Act and the general background of hybrid rulemaking. Rather, we incorporate our analysis in the cotton dust case as the established and proper interpretation of our scope of review for OSHA cases. However, we summarize that analysis very briefly here.

Though the OSH Act adopts the "substantial evidence" test for judicial review, 29 U.S.C. § 655(f) (1976), rulemaking under that Act remains essentially informal. AFL-CIO v. Marshall, supra, 617 F.2d at 650:

The tasks of this reviewing court are thus to ensure that the agency has (1) acted within the scope of its authority; (2) followed the procedures required by statute and by its own regulations; (3) explicated the bases for its decision; (and) (4) adduced substantial evidence in the record to support its determinations.

(Footnotes omitted.) Of course, we must rigorously review the agency's interpretations of the substantive provisions of its statutory mandate. Moreover, we must ensure that the agency has lived up to statutory and constitutional standards in its rulemaking procedure a subject we address in the next part of this opinion. These, however, are conventional problems of judicial review. The peculiar problem of reviewing the rules of agencies like OSHA lies in applying the substantial evidence test to regulations which are essentially legislative and rooted in inferences from complex scientific and factual data, and which often necessarily involve highly speculative projections of technological development in areas wholly lacking in scientific and economic certainty. We noted in the cotton dust case that we do not pretend to have the competence or the jurisdiction to resolve technical controversies in the record, 617 F.2d at 650, 652, or, where the rule requires setting a numerical standard, to second-guess an agency decision that falls within a "zone of reasonableness," id. at n.60, quoting Hercules, Inc. v. EPA, 598 F.2d 91, 107 (D.C.Cir.1978); see Industrial Union Dep't, AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 658, 100 S.Ct. 2844, 2872, 65 L.Ed.2d 1010 (1980) (plurality opinion); id., 448 U.S. at 662, 100 S.Ct. at 2874 (Burger, C. J., concurring). Rather, our task is to "ensure public accountability," 617 F.2d at 651, by requiring the agency to identify relevant factual evidence, to explain the logic and the policies underlying any legislative choice, to state candidly any assumptions on which it relies, and to present its reasons for rejecting significant contrary evidence and argument. Generalization cannot usefully take us further. We will discuss other aspects of the proper scope of review as the need arises in our analysis of distinct issues in the case.

OSHA was occasionally careless or inefficient in its procedures throughout this rulemaking, and we readily concede that procedural purists will never place the lead standard in the Pantheon of administrative proceedings. Moreover, we concede that most of LIA's procedural claims raise difficult legal issues, and indeed force us to consider a number of important questions of informal rulemaking procedure that have not been fully resolved by this circuit in recent years. Nevertheless, we enter this area under two important restraints. First, as a legal matter, we generally have no power to impose extra-statutory procedural requirements on the agency unless it has violated the Constitution or flagrantly disregarded minimal principles of procedural fairness. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). Second, as both a legal and a practical matter, we must recognize the procedural flexibility inherent in informal rulemaking, as well as the difficulty an agency faces in managing hundreds of comments and witnesses and developing a coherent standard out of tens of thousands of pages of record evidence.

The OSH Act requires the agency to follow procedures more stringent than the minimal ones established in the Administrative Procedure Act, 5 U.S.C. § 553 (1976). Thus the agency must give interested parties the opportunity to request a public hearing on objections to a proposed rule, and must publish notice of the time and place for such hearing in the Federal Register. 29 U.S.C. § 655(b)(3) (1976). Moreover, the agency has added to these statutory procedures by rule. Thus OSHA itself requires a hearing examiner at oral hearings, who must provide an opportunity for cross-examination on important issues and offer interested persons verbatim transcripts of the hearing. 29 C.F.R. § 1911.15(b) (1979).

Nevertheless, Congress' decision to impose the substantial evidence test on OSHA does not alter the essentially informal character of OSHA rulemaking. Industrial Union Dep't, AFL-CIO v. Hodgson, 499 F.2d 467, 472-473 (D.C.Cir. 1974). Just recently, we emphasized that the presence of procedures beyond those mandated by Section 553 of the APA neither converts the essentially legislative process of informal rulemaking into something akin to adjudication, nor empowers courts to turn rulemaking into courtroom trials. Ass'n of Nat'l Advertisers, Inc. v. FTC, 627 F.2d 1151 (D.C.Cir. 1979). Thus, as we examine the procedural claims in the lead proceeding, we must avoid imposing procedural constraints beyond those in APA Section 553, the OSH Act, and the Due Process Clause, and we remain bound by judicial construction of the demands of APA Section 553 as our source for the general principles of informal rulemaking.

Acting under these constraints, we ultimately find nothing illegal in OSHA's procedural conduct.

LIA urges us to vacate the entire lead standard because, in its view, the official who ultimately set the standard, Assistant Secretary of Labor Eula Bingham, had prejudged the essential issues in the rulemaking proceeding. For proof of this allegedly fatal bias, LIA points to a speech Bingham delivered on November 3, 1978 to a United Steelworkers of America conference on occupational exposure to lead.

Bingham's speech began innocuously, if dramatically ("Brothers and Sisters"), by noting her concern for workers and by recognizing how much OSHA depended on their unique perspective when it gathered information in setting safety standards. But after asserting that she and Secretary of Labor Marshall were "determined" to have a lead standard, Bingham proceeded to suggest her predisposition on important issues. As to the medical removal protection provision (MRP):

I think that there may be some apprehension because Assistant Secretaries in the past have not always understood, or have not known how to spell the words medical removal protection, or rate retention * * *. Well, I learned to spell those words a long time ago on the Coke Oven Advisory Committee, and if you want to know how I feel about it, you need only to look up my comments during those Committee hearings. As far as I'm concerned, it is impossible to have a Lead Standard without it. * * *

Appendix to Lodged Documents (ALD) 3. As to the dangers of lead:

* * * I can tell you about a plant within 300 miles of the city where workers are told to go to the hospital from work and receive therapy that would drag out poison and precious metals. And then they're sent back to be poisoned again. I bet I could go down to the hospitals of this city and find a worker that is undergoing kidney dialysis, and I'll bet you a dinner that some of those workers have been in lead plants.

I have told some people that I have never aspired to be an economist, but I tell you I can smell a phony issue when I see one. And to say that safety and health regulations are inflationary is phony.

* * * I don't understand a society such as ours who is not willing to pay a dollar more for a battery to insure that workers do not have to pay for that battery with their lives.

Id. at 5. The speech went on to urge workers "to control their own destiny" by educating themselves about the lead problem, and ended by calling for political support in the imminent congressional elections for candidates sympathetic to OSHA's goals. Id. at 9.

Were it our task to assess the wisdom and propriety of an administrator's public conduct, we might well admonish Dr. Bingham for this speech. She served her agency poorly by making statements so susceptible to an inference of bias, especially statements to a group so passionately involved in the proceedings. But our task is rather to measure her conduct against the legal standards for determining whether an official is so biased as to be incapable of finding facts and setting policy on the basis of the objective record before her. Moreover, we must bear in mind that this particular speech, though delivered five days before the Secretary of Labor signed the final standard and ten days before he released it, came 30 days after Bingham had effectively made her own decision on the standard and ten days after she had approved the final language.

An administrative official is presumed to be objective and "capable of judging a particular controversy fairly on the basis of its own circumstances." United States v. Morgan, 313 U.S. 409, 421, 61 S.Ct. 999, 1004, 85 L.Ed. 1429 (1941). Whether the official is engaged in adjudication or rulemaking, mere proof that she has taken a public position, or has expressed strong views, or holds an underlying philosophy with respect to an issue in dispute cannot overcome that presumption. Hortonville Joint School District No. 1 v. Hortonville Educ. Ass'n, 426 U.S. 482, 493, 96 S.Ct. 2308, 49 L.Ed.2d 1 (1976); United States v. Morgan, supra, 313 U.S. at 421, 61 S.Ct. at 1004. Nor is that presumption overcome when the official's alleged predisposition derives from her participation in earlier proceedings on the same issue. FTC v. Cement Institute, 333 U.S. 683, 702-703, 68 S.Ct. 793, 804, 92 L.Ed. 1010 (1948). To disqualify administrators because of opinions they expressed or developed in earlier proceedings would mean that "experience acquired from their work * * * would be a handicap instead of an advantage." Id. at 702, 68 S.Ct. at 804.

When Congress creates an agency with an express mission in OSHA's case, to protect workers' health and safety the agency officials will almost inevitably form views on the best means of carrying out that mission. The subjective partiality of an official of such an agency does not invalidate a proceeding that the agency conducts in good faith. Lead Industries Ass'n, Inc. v. EPA, 647 F.2d 1130, 1178 (D.C.Cir. 1980); Carolina Environmental Study Group v. United States, 510 F.2d 796, 801 (D.C.Cir. 1975).

This court has indeed required disqualification of an agency adjudicator when his public statements about pending cases revealed he " 'has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it.' " Cinderella Career & Finishing Schools, Inc. v. FTC, 425 F.2d 583, 591 (D.C.Cir. 1970), quoting Gilligan Will & Co. v. SEC, 267 F.2d 461, 469 (2d Cir.), cert. denied, 361 U.S. 896, 80 S.Ct. 200, 4 L.Ed.2d 152 (1959); see Texaco, Inc. v. FTC, 336 F.2d 754, 760 (D.C.Cir. 1964), vacated and remanded per curiam on other grounds, 381 U.S. 739, 85 S.Ct. 1798, 14 L.Ed.2d 714 (1965). And, although these cases involved adjudication, we could perhaps logically apply them to hybrid rulemaking proceedings like the present one in which the factual predicates of final rules are subject to review under the substantial evidence test.

So applied, however, these cases would lead us to vacate the lead standard only if Dr. Bingham had demonstrably made up her mind about important and specific factual questions and was impervious to contrary evidence. This test would be hard enough for petitioners to meet. But in Ass'n of Nat'l Advertisers, Inc. v. FTC, supra, handed down after oral argument in the present case, we raised an even higher barrier to claims of bias in rulemaking proceedings. We stressed there the difference between the essentially "legislative" factfinding of a rulemaker and the trial-type factfinding of an adjudicator, and thus held that the Cinderella test was inappropriate. We concluded that an agency official must be disqualified from rulemaking "only when there has been a clear and convincing showing that (she) has an unalterably closed mind on matters critical to the disposition of the proceeding." 627 F.2d at 1195.

The relevant statute in Ass'n of Nat'l Advertisers, Inc. v. FTC, supra, Section 18 of the Federal Trade Commission Act, 15 U.S.C. § 57a (1976), like the OSH Act, creates procedures more formal than the minimal ones required for informal rulemaking by 5 U.S.C. § 553 (1976). We held, however, that even in such hybrid rulemaking the findings of fact so intertwine with the policies that emerge from them that we could not, as we could in Cinderella, "cleave law from fact" in deciding whether the official had prejudged factual issues. 627 F.2d at 1168.14

Dr. Bingham's general expression of solidarity with the Steelworkers was legally harmless. Her call for support for congressional candidates sympathetic to her agency's mission did not bear on any specific issues in the case, and is probably the sort of political activity we simply must accept from a political appointee. Thus her bias, if any, shows up in her remarks about MRP, the dangers of lead poisoning, and the inflationary effect of the lead standard.

Had she made these remarks before the rulemaking began or while OSHA was receiving public comments, we might still have had to strain precedent to find grounds for disqualification. Her remarks on MRP do not bear on any specific factual issues, but rather reveal a general predisposition on a matter of policy, of the sort held legally harmless in FTC v. Cement Institute, supra, and Ass'n of Nat'l Advertisers, Inc. v. FTC, supra. Her remarks about endangered workers do bear on a factual question, but only very generally; they reveal no prejudgment on the precise and complex factual issues in the case, such as the exact blood-lead level at which disease develops. Finally, although the speech does allude specifically to the cost of the standard to the battery industry, Dr. Bingham's expression of disbelief in the inflationary effect of the standard is really part of a general rhetorical flourish about the danger of undervaluing worker health.

In any event, the fact remains that Dr. Bingham delivered the speech after she had decided on the standard and after the record had been closed. We can thus infer bias only if we construe her remarks retroactively. There may be cases warranting such judicial mindreading, but they would have to involve far more explicit and detailed statements by the allegedly biased person. The only language of predisposition in Bingham's speech that we can plausibly read retroactively is that on MRP,15 and her statement on that subject falls within the category of views derived from administrative experience to which the Supreme Court referred in FTC v. Cement Institute, supra, 333 U.S. at 702, 68 S.Ct. at 804. Thus, Bingham's speech simply does not reveal prejudgment with sufficient specificity to prove bias under the Cinderella standard, and, all the more so, does not constitute the "clear and convincing" evidence demanded by Ass'n of Nat'l Advertisers, Inc. v. FTC, supra. Judicial review of rulemaking, unlike the ABA Canon of Ethics, does not attack the mere appearance of impropriety. Bingham's speech, however unfortunate, does not prove the proceedings unfair.

B. Improper Staff Role and Separation of Functions

LIA aims its next procedural attack at OSHA staff attorneys who, LIA argues, acted essentially as advocates for a stringent lead standard by consulting with and persuading the Assistant Secretary as she drew her conclusions from the record. LIA would have us conclude that the agency decisionmaker engaged in ex parte, off-the-record contacts with one of the adverse sides in the rulemaking, thereby rendering the proceedings unfair. Grounding its contention somewhat equivocally on due process, the procedural principles inherent in hybrid rulemaking, and OSHA's own regulations providing for cross-examination, LIA asks us to invalidate the entire proceeding.

The key agency employee in question was Richard Gross, a lawyer in the Office of the Solicitor at OSHA, who served as a so-called "standard's attorney" throughout the rulemaking.16 His precise role is as ambiguous as it is important. LIA portrays him as a sort of guardian ad litem for a stringent lead standard who "horse-shed" expert witnesses to contrive a record that would support such a standard, LIA brief at 30, and then impermissibly advocated before the Assistant Secretary to make certain she construed the record as he intended. OSHA portrays him rather as a neutral party with no particular cause other than developing the fullest and soundest scientific and economic record possible, and with no bias other than the general orientation toward worker health inevitable in any OSHA employee.

The standard's attorney was at the center of activity throughout the rulemaking.17 He worked with the regular OSHA staff in reviewing preliminary research and drafting the proposed standard, all the while offering informal legal advice.