On Petition for review of action of the Assistant Secretary of Labor for Occupational Safety and Health.
Hastie, Gibbons and Weis, Circuit Judges.
The important subject of OSHA's regulations on the usage of a group of chemicals labeled as carcinogens occupies us once again. Although most of the standards are sustained, those as to laboratory practices and medical examinations of employees must be remanded. We also find validity in the objections by one of the appellants that the Secretary of Labor erred in not publishing a proposed regulation after receiving the report from his advisory committee.
These are companion cases to Synthetic Organic Chemical Manufacturers Association v. Brennan, 503 F.2d 1155 (3d Cir. 1974), consisting of appeals from occupational health standards promulgated by the Secretary of Labor. These permanent regulations were issued on January 29, 1974, regulating, inter alia, the exposure of employees to fourteen chemicals found to be carcinogenic. 29 C.F.R. § 1910.93c-p.
Appeals to this court were filed on behalf of employers who utilized four of the chemicals -- EI, CMME, DCB and MOCA. Another appeal was filed by the Oil Chemical and Atomic Workers Union from the standards applicable to all fourteen substances. The appeal as it pertained to Ethyleneimine (EI) was severed, and we held in the prior opinion that the Secretary had made sustainable determinations as to the chemical's carcinogenicity and proper standards for industrial usage. We concluded, however, that proper notice had not been given before promulgating regulations for the use of EI in the laboratory and remanded on that point. Our conclusions as to the legal issues presented by the earlier case likewise apply to the appeals now under consideration and we need not repeat what was said in our prior opinion.
The contentions made here with respect to 3,3feet-dichlorobenzidine (DCB) by employers who utilize it are similar to those raised in connection with EI -- that is, the data derived from tests revealing carcinogenicity in animals were not properly extrapolated to human susceptibility. Nothing in the record permits a differentiation here from our earlier decision on EI, and we do not make one. While the scientific data varies, of course, the same legal principle applies and, accordingly, the petitioners' contention must fail.
The thrust of the opposition to the standard regulating chloromethyl methyl ether (CMME) is aimed at certain studies relied upon by the Secretary. The employers contest the validity of the Van Duuren studies*fn1 by questioning whether pure CMME was tested or whether, as usually occurs, the substance was contaminated to form bis chloromethyl ether (BCME).*fn2 Again, the issue is the same as that in the EI appeal, and again in this case the Secretary's determination finds adequate support in the record.
Polyurethane Manufacturers Association (PMA), the employers' association concerned with the use of 4,4feet methylene bis (2-chloroaniline) (MOCA)*fn3 in various manufacturing processes, presses the same arguments as to carcinogenicity that are advanced for DCB and CMME. Of necessity, the same criteria of review is applied to this chemical as the others in question. The Secretary's determination is supported by the record and therefore must be sustained.
PMA, however, raises one additional contention not presented in the other appeals. It challenges the procedures followed by the Secretary in promulgating the permanent standards for the industrial use of MOCA. This contention has merit and requires that the case be remanded to the Secretary for compliance with the statutory mandate.
MOCA was subject to the same emergency standard that was issued by the Secretary for the other thirteen chemicals on May 3, 1973 although PMA apparently did not become aware that MOCA was to be included in the group until the emergency standard was published. Thereafter, the Secretary instituted procedures to enact a permanent standard. According to 29 U.S.C. § 655(c)(2) and (3), once an emergency temporary standard is enacted, it is effective until superseded by a permanent standard fashioned in accordance with the procedures prescribed in § 655(b). The emergency standard serves as a proposed rule for that proceeding and the permanent standard must be enacted within six months. The legislative history emphasizes that "upon publication of such an emergency temporary standard, the Secretary must begin a regular standard-setting procedure." 1970 United States Code Congressional and Administrative News, p. 5184.
We now turn to the requirements of § 655(b). That section provides that the Secretary may request the recommendations of an advisory committee to which he may submit his own proposals as well as pertinent factual and research data. The committee then submits its recommendations to the Secretary within a specified time. Paragraph (2) provides that the Secretary shall publish a proposed rule and that interested parties be given the opportunity to submit written data, comments or objections to the proposal within thirty days. If an advisory committee has been appointed, the Secretary is to publish the proposed rule within sixty days after the submission of the committee's recommendations. Paragraph (3) provides that, if objections are filed to the proposed rule and a hearing is requested, notice of the hearing shall be given within thirty days of the last date for filing objections.
With these guidelines in mind, it is appropriate to review the chronology of the proceedings here:
May 3, 1973 -- The emergency temporary standard was issued.
June 19, 1973 -- The Secretary announced the for mation of an ...