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Associated Builders and Contractors Inc. v. Brock

filed as amended december 5 1988.: November 25, 1988.

ASSOCIATED BUILDERS AND CONTRACTORS, INC., PETITIONER
v.
WILLIAM E. BROCK, SECRETARY OF LABOR, AND JOHN A. PENDERGRASS, ASSISTANT SECRETARY FOR OCCUPATIONAL SAFETY AND HEALTH, AND THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, RESPONDENTS; NATIONAL ASSOCIATION OF HOME BUILDERS, AMERICAN SUBCONTRACTORS ASSOCIATION, AMERICAN FIRE SPRINKLER ASSOCIATION, ASSOCIATED SPECIALTY CONTRACTORS, ASSOCIATION OF THE WALL AND CEILING INDUSTRIES -- INTERNATIONAL, INSULATION CONTRACTORS OF AMERICA, MASON CONTRACTORS ASSOCIATION OF AMERICA, MECHANICAL CONTRACTORS ASSOCIATION OF AMERICA, NATIONAL ASSOCIATION OF COLD STORAGE CONTRACTS, NATIONAL ASSOCIATION OF PLUMBING, HEATING AN COOLING CONTRACTORS, NATIONAL ELECTRICAL CONTRACTS ASSOCIATION, NATIONAL GLASS ASSOCIATION, NATIONAL INSULATION CONTRACTORS ASSOCIATION, NATIONAL ROOFING CONTRACTORS ASSOCIATION, NATIONAL UTILITY CONTRACTS ASSOCIATION, PAINTING AN DECORATING CONTRACTORS OF AMERICA AND THE SHEET METAL AND AIR CONDITIONING CONTRACTORS NATIONAL ASSOCIATION (ALL OF THE ABOVE HEREIN REFERRED TO AS THE CONSTRUCTION INDUSTRY TRADE ASSOCIATIONS), UNITED TECHNOLOGIES CORPORATION, ASSOCIATED GENERAL CONTRACTORS OF VIRGINIA AND THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, BUILDING AND CONSTRUCTION TRADES DEPARTMENT, AFL-CIO, UNITED STEELWORKERS OF AMERICA, AFL-CIO,CLC, NATIONAL PAINT AND COATINGS ASSOCIATION, NATIONAL GRAIN AND FEED ASSOCIATION, INC., INTERVENORS. THE NATIONAL GRAIN & FEED ASSOCIATION, INC., PETITIONER V. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, RESPONDENT; NATIONAL PAINT AND COATINGS ASSOCIATION, PUBLIC CITIZEN, INC., AND THE CONNECTICUT COUNCIL ON OCCUPATIONAL SAFETY AND HEALTH ("CONNCOSH"), INTERVENORS. THE ASSOCIATED GENERAL CONTRACTORS OF VIRGINIA AND THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, PETITIONERS V. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, RESPONDENT; UNITED TECHNOLOGIES CORPORATION, UNITED STEELWORKERS OF AMERICA, AFL-CIO, CLC, THE NATIONAL GRAIN AND FEED ASSOCIATION, INC., BUILDING AND CONSTRUCTION TRADES DEPARTMENT, AFL-CIO, INTERVENORS. UNITED TECHNOLOGIES CORPORATION, PETITIONER V. THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, RESPONDENT



On Petition for Review of an Order of the United States Department of Labor.

Gibbons, Chief Judge, Hutchinson and Scirica, Circuit Judges.

Author: Gibbons

Opinion OF THE COURT

GIBBONS, Chief Judge:

Before the court are four petitions for review of the revised hazard communication standard 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) (OSH Act). The petitioners are the Associated Builders and Contractors, Inc. (ABC), the National Grain & Feed Association, Inc. (NGFA), the Associated General Contractors of Virginia, et al. (AGC), and United Technologies Corporation (UTC). These petitions were initially filed in the District of Columbia Circuit, the Second Circuit, and the Fourth Circuit. Since the filing in the District of Columbia Circuit was earliest, the other petitions were transferred and consolidated there. Thereafter, the Building and Construction Trades Department, AFL-CIO intervened, and on the motion of the intervenors the petitions were transferred to this court. The transfer order was made because the hazard review standard was before this court on three prior occasions. United Steelworkers of America v. Auchter, 763 F.2d 728 (3d Cir. 1985) (USWA I); United Steelworkers of America v. Pendergrass, 819 F.2d 1263 (3d Cir. 1987) (USWA II); United Steelworkers of America v. Pendergrass, 855 F.2d 108 (3d Cir. 1988) (USWA III). Because those prior decisions are controlling, we will deny the petition for review.

I.

In USWA I this court ordered the Occupational Safety and Health Administration (OSHA) to apply its recently promulgated hazard communication standard not only to the manufacturing sector, but to the non-manufacturing sector as well, unless the agency could "state reasons why such application would not be feasible." 763 F.2d at 739. Except for a part of its treatment of trade secrets, the hazard communications standard was otherwise upheld. 763 F.2d at 743.

In USWA II, the petitioners in USWA I returned to the court seeking to enforce the judgment in that case. OSHA, following the USWA I judgment, had issued a notice of proposed rulemaking, claiming that the record was insufficient to determine the issue of feasibility of the standard outside the manufacturing sector. This court held that OSHA was not in compliance with the USWA I judgment, which did not contemplate notice and comment. It ordered OSHA to promulgate, within 60, days a hazard communications standard applicable to all workers covered by the OSH Act, or state reasons separately, as to each category of excluded workers, why, on the basis of the present administrative record, a hazard communication standard is not feasible. 819 F.2d at 1270.

In USWA III the original petitioners loved for further relief in enforcement of the USWA I judgment. By then OSHA had on August 24, 1987, published an expanded hazard communication standard applicable to all industries. 52 Fed. Reg. 31852 et seq. (codified at 29 C.F.R. § 1910.1200). This revised standard was to go into effect on May 23, 1988. 29 C.F.R. § 1910.1200(j). On September 10, 1987, however, OSHA submitted it to the Office of Information and Regulatory Affairs in the Office of Management and Budget (OMB). OMB, ostensibly in compliance with the Paperwork Reduction Act of 1980, Pub. L. No. 96-511, 94 Stat. 2812, 44 U.S.C. § 3501 et seq. (Supp. 1988), sought public notice and comment "on the recordkeeping, notifications, and other paperwork requirements of the devised standard." 52 Fed. Reg. 36652. Following a public hearing OMB purported to disapprove three provisions which the devised standard adopted. These three new provisions were: (1) a requirement that at multi-employee worksites employers exchange Material Safety Data Sheets obtained from chemical manufacturers, 29 C.F.R. § 1910.1200(e)(2); (2) an exemption from the labeling requirements of the standard for consumer products used in the same manner and quantities as intended for consumer use, 29 C.F.R. § 1910.1200(b)(6)(vii); and (3) an exemption from labeling of drugs in tablet or pill form regulated by the Federal Drug Administration. 29 C.F.R. § 1910.1200(b)(6)(viii). This court held that the regulations disapproved by OMB did not involve the collection of information within the meaning of the Paperwork Reduction Act. 855 F.2d at 113. Summarizing the prior history of the case, we noted:

In USWA I we directed OSHA to consider the application of the hazard communication standard to employees in sectors of the economy other than manufacturing unless the Secretary could state reasons why such application would not be feasible. 763 F.2d at 739 (citing 29 U.S.C. § 655(b)(5)). In USWA II we made it clear that our first judgment required that feasibility be determined for each category of worker on the basis of the administrative record already compiled. 819 F.2d at 1270. Thus, our prior orders represent our considered view that OSHA must cease abdicating its responsibility with respect to employees outside the manufacturing sector, by deciding whether or not they should be covered on the basis of the record. The August 24, 1987 promulgation of a hazard communication standard applicable to all employees was a good faith compliance with those orders. The slight changes that were made in the standard were a logical outgrowth of the rulemaking record which we previously reviewed. Cf. Action Alliance, at 1455 (new round of rulemaking not required for a revision that is the "logical outgrowth" of the rulemaking record). Withdrawal of the provisions disapproved by OMB was accordingly inconsistent with those orders. Relief by motion is appropriate. 28 U.S.C. § 1651(a) (1982); 5 U.S.C. § 706(1) (1982); United States v. New York Telephone Co., 434 U.S. 159, 172, 54 L. Ed. 2d 376, 98 S. Ct. 364 (1977); USWA II, 819 F.2d at 1270.

855 F.2d at 113-14.

II.

The present petitioners, unlike those who were the moving parties in USWA I, II, and III, seek to prevent enforcement of the hazard communication standard. Their objections include both procedural and ...


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