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Dry Color Manufacturers' Association Inc. v. Department of Labor

decided: October 4, 1973.

DRY COLOR MANUFACTURERS' ASSOCIATION, INC., SUN CHEMICAL CORPORATION, INMONT CORPORATION, H. KOHNSTAMM & CO., INC., ALLIED CHEMICAL CORPORATION, CHEMETRON CORPORATION, THE UPJOHN COMPANY, LAKEWAY CHEMICALS, INC., HERCULES INCORPORATED, PETITIONERS,
v.
DEPARTMENT OF LABOR, AND PETER J. BRENNAN, SECRETARY OF LABOR, AND JOHN H. STENDER, ASSISTANT SECRETARY OF LABOR OF OCCUPATIONAL SAFETY AND HEALTH, RESPONDENTS; OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, 1636 CHAMPA STREET, DENVER, COLORADO 80202 AND HEALTH RESEARCH GROUP, 2000 P STREET, N.W., WASHINGTON, D.C. 20036, PETITIONERS, V. PETER BRENNAN, SECRETARY UNITED STATES DEPARTMENT OF LABOR AND JOHN STENDER, ASSISTANT SECRETARY, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, WASHINGTON, D.C. 20210, RESPONDENTS; AEROJET-GENERAL CORPORATION, AN OHIO CORPORATION, PETITIONER, V. PETER J. BRENNAN, SECRETARY OF LABOR, AND JOHN H. STENDER, ASSISTANT SECRETARY OF LABOR FOR OCCUPATIONAL SAFETY AND HEALTH, RESPONDENTS



ON PETITION FOR REVIEW OF AN ORDER OF THE ASSISTANT SECRETARY OF LABOR FOR OCCUPATIONAL SAFETY AND HEALTH.

McLaughlin, Van Dusen and Rosenn, Circuit Judges. McLaughlin, Circuit Judge, dissenting.

Author: Van Dusen

Opinion OF THE COURT

VAN DUSEN, Circuit Judge.

These cases are before the court upon petitions (filed in May and June 1973) to review an order of the Assistant Secretary of Labor for Occupational Safety and Health, published on May 3, 1973, 38 Fed. Reg. 10929, issuing an Emergency Temporary Standard on Certain Carcinogens, 29 C.F.R. § 1910.93c. The temporary standard prescribes plant operating procedures and equipment, work practices and procedures for preventing exposure to 14 chemicals said to be carcinogens. This court has jurisdiction to review and set aside the standard pursuant to section 6(f) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 655(f).

In No. 73-1361, petitioners are Dry Color Manufacturers' Association, Inc., Sun Chemical Corporation, Inmont Corporation, H. Kohnstamm & Co., Inc., Allied Chemical Corporation, Chemetron Corporation, The Upjohn Company, Lakeway Chemicals, Inc. and Hercules, Incorporated (hereinafter "Dry Color"). Each is a manufacturer, user, or an association of users of 3,3 foot-dichlorobenzedine (DCB), one of the 14 chemicals. Petitioner in No. 73-1638, Aerojet-General Corporation (hereinafter "Aerojet") is a user of ethyleneimine (EI), another of the 14 chemicals subject to the Emergency Temporary Standard. The petitioners in these two cases (hereinafter "industry petitioners") raise as objections to the Emergency Temporary Standard that: (1) there is not substantial evidence in the record to show that the use of DCB and EI, respectively, satisfies the provisions of subsection 6(c)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 655(c)(1), as to the conditions necessary to justify the promulgation of an emergency temporary standard; (2) the findings of fact and statement of reasons for the standard contained in the standard's preamble are inadequate; and (3) the Assistant Secretary violated the National Environmental Policy Act of 1969, 42 U.S.C. § 4332(2) (C), by failing to prepare an environmental impact statement prior to issuance of the standard. In addition, the industry petitioners have challenged the Department of Labor's Certification of Record, charging that a substantial portion of the documents contained therein were never actually considered by the Department in its decision to issue the Emergency Standard and, therefore, should not be included in the record.

Petitioners in No. 73-1383 are Oil, Chemical and Atomic Workers Union, many of whose members work in plants that manufacture or use chemicals subject to the Emergency Temporary Standard, and the Health Research Group, a non-profit organization engaged in public interest research and advocacy on health issues, including occupational health. These petitioners (hereinafter "employee petitioners") contend that the Emergency Temporary Standard falls short of preventing the impairment of worker health which the Act requires and seek to have this court order the implementation of a use permit system that would achieve zero exposure.

The Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., (hereinafter "the Act") provides for the issuance of both permanent and emergency temporary standards.*fn1 Under subsection 6(b) of the Act, 29 U.S.C. § 655(b), the Secretary may promulgate permanent standards by following rule-making procedures similar to those prescribed by the Administrative Procedure Act, 5 U.S.C. § 551 et seq., with the added assistance of a statutorily authorized Advisory Committee if deemed necessary. Under subsection 6(c), 29 U.S.C. § 655(c), on the other hand, emergency temporary standards become effective immediately upon publication in the Federal Register; the hearing, public comment, and other provisions of the Administrative Procedure Act do not apply. After issuing an emergency temporary standard, the Secretary must begin a permanent rule-making process and complete that process by issuing a permanent standard within six months of the publication of the emergency temporary standard.

Subsection 6(c)(1) of the Act commands the Secretary to issue an emergency temporary standard "if he determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger," 29 U.S.C. § 655(c)(1). Subsection 6(e) provides that "whenever the Secretary promulgates any standard, . . . he shall include a statement of his reasons for such action," 29 U.S.C. § 655(e), and subsection 6(f) directs courts reviewing a standard that "the determinations of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole," 29 U.S.C. § 655(f).

The Emergency Temporary Standard in question was originally published by the Occupational Safety and Health Administration ("OSHA") on May 3, 1973, after about one year of consulting with the National Institute for Occupational Safety and Health ("NIOSH") and receiving data and commentary from other interested groups. The Emergency Temporary Standard was based on the following findings, which are stated in the preamble of the standard and constitute the entire statement of reasons for its issuance:

"On the basis of all the relevant information before us, it is hereby found that: (1) the 14 carcinogens listed in the emergency temporary standard are toxic and physically harmful; (2) that exposure to any of the 14 substances poses a grave danger to employees; (3) that employees are presently being exposed to the substances; and (4) that the emergency temporary standard set forth below is necessary to protect the employees from such exposure." 38 Fed. Reg. 10929.

The standard goes on to prescribe plant operating procedures and equipment, work practices and procedures for preventing exposure of employees to the 14 chemicals found to cause cancer, together with a timetable of effective dates.*fn2 In promulgating the standard, OSHA stated that as soon as possible a draft environmental impact statement would be filed with the Council on Environmental Quality and that a copy of the proposed rules would be sent to the Environmental Protection Agency for its comments under section 309 of the Clean Air Act, 42 U.S.C. § 1857 et seq. A draft environmental impact statement prepared by OSHA was received by the Council on Environmental Quality on May 21, 1973.

On July 27, 1973, OSHA issued a revision of the Emergency Temporary Standard, 38 Fed. Reg. 20074-20076, which became effective July 30, 1973. This revision was prompted by its receipt of "numerous comments, objections, and recommendations," which caused OSHA to determine "that certain changes in the standard are necessary to tailor the requirements for different types of workplaces and work operations, and to clarify the standard." Most of the changes are clarifications of pre-existing requirements; few substantive changes have been made. The revised standard deals more particularly with different work operations, such as isolated environment operations, closed system operations and open vessel operations, and the different control measures necessary to protect employees engaged in each category of operation are specified. In making these changes, OSHA expressly reconfirmed the "original findings concerning the toxicity of all the ...


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