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

> Court of Appeals for the D.C. Circuit · January 30, 1981 · 647 F.2d 1189

URL: https://www.frixlaw.com/law-library/cases/390182

## Case

- **Full name:** United Steelworkers of America, Afl-Cio-Clc 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, Cast Metals Federation, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, United Steelworkers of America, Afl-Cio-Clc, 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
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** January 30, 1981
- **Citations:** 647 F.2d 1189
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 32 later opinions in the Frix Law Library

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## Opinion text

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.
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.
1
Robert D. Moran, Washington, D. C., was on the brief for intervenor Cast Metals Federation.
2
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.
3
Allan J. Topol and Steven S. Rosenthal, Washington, D. C., were on the brief for intervenor Shipbuilders Council of America.
4
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.
5
Vincent J. Fuller and Peter J. Kahn, Washington, D. C., were on the brief for intervenor Dixie Metals Co.
6
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.
7
Edwin H. Seeger, Carl B. Nelson, Jr., and John T. Golden, Washington, D. C., were on the brief for intervenor Bunker Hill Co.
8
Frank M. Coates, Jr., Baton Rouge, La., was on the brief for intervenor Schuykill Metals Corp.
9
James R. Richards, Washington, D. C., was on the brief for amicus curiae Capital Legal Foundation urging that the lead standard be declared invalid.
10
Marjorie Elizabeth Cox, Los Angeles, Cal., was on the brief for amici curiae California Dept. of Industrial Relations et al. urging affirmance.
11
Wendy B. Kloner and Douglas L. Parker were on the brief for amici curiae Women's Legal Defense Fund et al. urging affirmance.
12
Before WRIGHT, Chief Judge, and ROBINSON and MacKINNON, Circuit Judges.
13
Opinion for the court ** filed by Chief Judge J. SKELLY WRIGHT.
14
Dissenting opinion filed by Circuit Judge MacKINNON.
J. SKELLY WRIGHT, Chief Judge:
15
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 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
16
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.
17
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.
18
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.
19
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.
20
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).
21
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.
22
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).
23
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).
24
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).
25
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).
II. SCOPE OF REVIEW
26
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.
27
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 :
28
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.
29
(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.
III. PROCEDURAL CLAIMS
30
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.
31
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).
32
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.
33
Acting under these constraints, we ultimately find nothing illegal in OSHA's procedural conduct.
A. Bias of the Decision maker
34
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.
35
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):
36
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. * * *
37
Appendix to Lodged Documents (ALD) 3. As to the dangers of lead:
38
* * * 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.
Id. at 4. As to economic feasibility:
39
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.
40
* * * 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.
41
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.
42
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.
43
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 .
44
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).
45
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.
46
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 .
47
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
48
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.
49
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.
50
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.
51
B. Improper Staff Role and Separation of Functions
52
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.
53
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.
54
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. He helped organize the public hearings and, having immersed himself in the scientific literature and in the submitted public comments, he communicated regularly with the prospective expert witnesses. In these communications he briefed the witnesses on the issues they were to address in their testimony, explained the positions of the agency, the industry, and the unions on key questions, discussed the likely criticism of the experts' testimony, and asked the experts for any new information that supported or contradicted the OSHA proposal. 18 During the hearing itself he conducted all initial questioning of OSHA witnesses and cross-examined all other witnesses. After the hearings he assisted the Assistant Secretary by reviewing the evidence in the record, preparing summaries, analyses, and recommendations, and helping draft the Preamble to the final standard.
55
In a proceeding to create a general rule it makes little sense to speak of an agency employee advocating for one "side" over another. However contentious the proceeding, the concept of advocacy does not apply easily where the agency is not determining the specific rights of a specific party, and where the proposed rule undergoes detailed change in its journey toward a final rule. Indeed, as OSHA notes, the true adversaries here may well have been the industry and the unions, since the final standard, while in no sense a mathematical compromise, did fall between the old standard, to which the industry had resigned itself, and the extremely stringent one the unions urged, see Part VIII infra. Thus, the standard's attorney may have been an advocate for some new lead standard, and probably even a stringent one, but not necessarily for one specific standard supported by one specific party.
56
Nevertheless, the adversary tone and format of the proceedings are obvious. At the very least, the standard's attorney was committed to the general principles of the proposed standard, and so inevitably represented those principles "against" the industry parties so obviously adverse to them. Moreover, by conducting the "direct examination" of OSHA witnesses and the cross-examination of all others, the standard's attorney certainly created the public impression of conventional legal advocacy. Thus OSHA's portrayal of his role, while logical, is a bit disingenuous. The Assistant Secretary might well have been able to assess the record more objectively if less efficiently had the standard's attorney not been constantly at her side. Therefore, although we have some doubt about calling the standard's attorney an "advocate" in the context of such rulemaking, 19 we will assume he played that role so we can measure his conduct against the legal constraints on the agency. 20
57
We note at the outset that nothing in the Administrative Procedure Act bars a staff advocate from advising the decision maker in setting a final rule. The APA deals with ex parte contacts in two provisions. 5 U.S.C. § 554 (d) (1976), which applies solely to adjudications, prohibits any off-the-record communication between an agency decision maker and any other person about a fact in issue, and in particular bars any prosecuting or investigating employee of the agency from participating in final decisions. Since an OSHA proceeding to set a safety and health standard is obviously rulemaking, and not adjudication, Industrial Union Dep't, AFL-CIO v. Hodgson, supra, 499 F.2d at 472-473 ; see 5 U.S.C. § 551 (4) (1976), that provision cannot apply here. See Ass'n of Nat'l Advertisers, Inc. v. FTC, supra; Hercules, Inc. v. EPA, supra, 598 F.2d at 125 (citing legislative history of APA). 21 5 U.S.C. § 557 (d) (1976), which applies to formal rulemaking as well as adjudication, prohibits ex parte communications relevant to the merits of a proceeding between the agency and interested parties outside the agency. Even were we to ignore our own determination and Congress' that the OSH Act creates essentially informal rulemaking, Industrial Union Dep't, AFL-CIO v. Hodgson, supra, 499 F.2d at 472-473 ; Legislative History of the Occupational Safety and Health Act of 1970, 92d Cong., 1st Sess. 1187, 1201 (Committee Print) (June 1971) (hereinafter Legislative History), this provision cannot apply to ex parte contacts wholly among agency employees. Hercules, Inc. v. EPA, supra, 598 F.2d at 125 n.60 (citing legislative history of § 557(d)).
58
Moreover, in establishing the special hybrid procedures in the OSH Act, Congress never intended to impose the separation-of-functions requirement it imposes in adjudications. The legislative history shows that Congress consistently turned back efforts to impose such formal procedures on OSHA standard-setting. 22 Adding to informal rulemaking the special requirement of a substantial evidence test does not change the essential character of the rulemaking, Ass'n of Nat'l Advertisers, Inc. v. FTC, supra, 627 F.2d at 1161 , 23 especially under a statute like the OSH Act which does not even require a hearing before the agency sets a standard, see 29 U.S.C. § 655 (b)(3) (1976). 24
59
Thus we can discern no statutory basis in either the APA or the OSH Act for a separation-of-functions requirement in OSHA rulemaking. And under the Supreme Court's decision in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., supra, that is virtually the end of the inquiry. Unless we find that the standard's attorney here violated the due process rights of the petitioners, 435 U.S. at 543 , 98 S.Ct. at 1211 , or that this is one of those "extremely compelling circumstances" in which courts remain free to impose nonconstitutional extra-statutory procedures on agencies, id., we must reject LIA's challenge here. 25
60
In recent cases we have in fact gone beyond the strict terms of the APA and the substantive agency statute to impose a ban on ex parte contacts. In Home Box Office, Inc. v. FCC, 567 F.2d 9, 51-59 (D.C. Cir.) (per curiam), cert. denied, 434 U.S. 829 , 98 S.Ct. 111 , 54 L.Ed.2d 89 (1977), we held that off-the-record communications between members of the agency and interested outside parties violated the due process rights of parties not privy to the communications. In United States Lines, Inc. v. FMC, 584 F.2d 519, 536-543 (D.C.Cir.1978), decided after Vermont Yankee, we reaffirmed the principle of Home Box Office, finding the ban on ex parte contacts there inherent in the statutory requirements of a hearing 26 and judicial review under the arbitrary and capricious standard. See Nat'l Small Shipments Traffic Conference, Inc. v. ICC, 590 F.2d 345, 351 (D.C. Cir. 1978). But neither of these cases involved improper influence of staff on agency decision makers, 27 nor does the reasoning of either case lead us to apply the ban on ex parte contacts to agency staff.
61
In Home Box Office, of course, we expressed our general concern that whenever the record fails to disclose important communications that may have influenced the agency decision maker, the court cannot fully exercise its power of review. Home Box Office, Inc. v. FCC, supra, 567 F.2d at 54 . But we spoke there in the context of massive evidence that industry parties financially interested in the rulemaking secretly lobbied with FCC staff and commissioners. We stated:
62
(T)he evidence is certainly consistent with often-voiced claims of undue industry influence over Commission proceedings, and we are particularly concerned that the final shaping of the rules we are reviewing here may have been by compromise among the contending industry forces, rather than by exercise of the independent discretion in the public interest the Communications Act vests in individual commissioners. * * *
63
Id. at 53 . Influence from within an agency poses no such threat. Moreover, in summarizing our guidance for the agencies in Home Box Office we identified the type of communication we were restricting specifically as that between the agency and "any interested private party, or an attorney or agent for any party(.)" Id. at 57 . In United States Lines, where the agency abruptly reversed its decision on the antitrust exemption of a shipping agreement after it heard ex parte legal arguments from private parties, we stated that "adversarial comment is particularly critical where, as here, ex parte communications are made by a party interested in securing the Commission approval necessary for the legality of its contracts(.)" United States Lines, Inc. v. FMC, supra, 584 F.2d at 542 .
64
Neither the constitutional 28 nor the implicit statutory principles that decided these cases apply with any force to the type of staff influence LIA challenges here. Moreover, an OSHA rulemaking proceeding is of a character wholly distinct from that of a proceeding which resolves "conflicting private claims to a valuable privilege," Sangamon Valley Television Corp. v. United States, 269 F.2d 221, 224 (D.C. Cir. 1959), quoted in Home Box Office, Inc. v. FCC, supra, 567 F.2d at 55 , and from a "quasi-adjudicatory" proceeding in which we found the potential for bias as great as that in a case of competing claims, United States Lines, Inc. v. FMC, supra, 584 F.2d at 539, 542 .
65
In only one recent case have we actually addressed the propriety of ex parte contacts between agency decision makers and agency staff, but even there our discussion of the issue was only dictum, and indeed essentially supports OSHA here. In Hercules, Inc. v. EPA, supra, we dealt with a claim that the chief judicial officer of the Environmental Protection Agency, who assisted the Administrator in setting final regulations on two toxic substances, consulted after the record was closed with staff experts, including two staff lawyers who had represented the staff position at the administrative hearing. 598 F.2d at 121-122. We noted that the problem was one "of great sensitivity," id. at 126, which caused us some "uneasiness," id. at 127, and on which we suggested we might rule when a more concrete case than the one there presented itself, id. at 126.
66
To be sure, most of the special factors we cited in avoiding ruling on the issue in Hercules, Inc. are absent here. 29 Nevertheless, LIA's reading of Hercules, Inc. ignores the almost unmistakable conclusion we drew there: that the issue was one for Congress or the agencies to resolve. Recognizing, however euphemistically, that Vermont Yankee "counsels restraint" in imposing nonstatutory procedural requirements on agencies, id. at 126, we reviewed the legislative history of the APA on the staff contacts issue. We discovered there a clear congressional intent not to impose any separation-of-functions requirement unless agencies begin to abuse the practice, in which case "(a) mendatory or supplementary legislation can supply any deficiency." 92 Cong.Rec. 2159 (1946) (remarks of Senator McCarran), quoted in Hercules, Inc. v. EPA, supra, 598 F.2d at 127. We ended our discussion of the issue by asserting:
67
Now might be a particularly propitious time for Congress or the agencies to limit or provide disclosure of post-hearing contacts between staff advocates and decision makers. * * *
68
Id. at 127-128. The invitation to Congress and the agencies may remain, but so do the limits of the judicial task.
69
Rulemaking is essentially an institutional, not an individual, process, and it is not vulnerable to communication within an agency in the same sense as it is to communication from without. In an enormously complex proceeding like an OSHA standard setting, it may simply be unrealistic to expect an official facing a massive, almost inchoate, record to isolate herself from the people with whom she worked in generating the record. See Braniff Airways, Inc. v. CAB, 379 F.2d 453, 461 (D.C.Cir.1967). In any event, we rest our decision not on our own theory of agency management, but on the state of the law.
C. Improper Use of Consultants
70
LIA makes two attacks on OSHA's reliance on out-of-house consultants in developing the lead standard.
71
The first attack goes to the general use of consultants and the effect thereof on the Assistant Secretary's exercise of her duty to determine the final standard. LIA contends that the Assistant Secretary hired so many consultants and relied on them so heavily for so many tasks that she essentially abdicated her responsibility for setting the lead standard to outsiders. OSHA itself admits it lacked sufficient staff expertise to deal with all the important issues without outside help, 30 thus perhaps earning LIA's ironic observation that the agency requests deference to its expertise while pleading it does not have enough of that commodity. But the question is whether the use of consultants here violated the law.
72
The record shows that OSHA did make rather broad requests for help from the consultants. As we discuss below, OSHA relied heavily on David Burton Associates (DBA) and Nicholas Ashford and his Center for Policy Alternatives (CPA) in examining the data on feasibility and developing a "technology-forcing" rationale for the standard. The agency hired a number of other expert consultants, giving them fairly broad mandates to summarize and evaluate data in the record, prepare record data for computer processing, and help draft portions of the Preamble and the final standard. E.g., ALD 39-40, 51-60, 65. LIA argues that such reliance on outsiders invites abuse, even if one assumes the honesty of the ones in this case, since hired hands have a financial incentive to tell the agency what it wants to hear, and have no civil service protection against retaliation for telling uncomfortable truths.
73
LIA asserts that no case has considered and upheld the legality of such reliance. But neither can LIA locate a case or statute forbidding such a practice, and once again we are restrained by Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., supra, in imposing procedural rules on the agencies. If anything, the law generally bearing on the issue supports OSHA here. The OSH Act empowers the agency to employ expert consultants, 29 U.S.C. § 656 (c) (1976), and OSHA might have possessed that power even without express statutory authority, see Tabor v. Joint Board for Enrollment of Actuaries, 566 F.2d 705 , 708 n.5 (D.C.Cir.1977). Moreover, we have even treated the use of consultants as proof that the agency has taken its responsibilities seriously. Weyerhauser Co. v. Costle, 590 F.2d 1011, 1026 (D.C.Cir.1978). 31
74
LIA's position thus comes down to the challenge that OSHA has violated the principle of Morgan v. United States, 298 U.S. 468, 480-481 , 56 S.Ct. 906 , 80 L.Ed. 1288 (1936) (Morgan I ): "The one who decides must hear," and an agency denies the parties a true hearing if the official who acts for the agency has not personally confronted the evidence and the arguments. See Braniff Airways, Inc. v. CAB, supra, 379 F.2d at 461 . Though Morgan I expressly allowed agency officials to rely on their subordinates in reviewing the record, 298 U.S. at 481 , 56 S.Ct. at 911 , it did not, of course, address the question of outside consultants. Nevertheless, applying the general principle of Morgan I, we see that LIA cannot buttress its general allegation of excessive reliance with any specific proof that the Assistant Secretary failed to confront personally the essential evidence and arguments in setting the final standard. Without at this point addressing the substantive validity of the lead standard, we note that in the lengthy Preamble and Attachments to the final standard the decision maker reviewed the evidence and explained the evidentiary bases for each part of the standard. Moreover, the Assistant Secretary demonstrated her independence from the consultants by strongly criticizing some of their conclusions on the key issue of feasibility. E.g., 5298 4/1.
75
To inquire further would be to probe impermissibly into the mental processes by which the Assistant Secretary made her decision. See United States v. Morgan, supra, 313 U.S. at 422 , 61 S.Ct. at 1004 ; Washington Research Project, Inc. v. Dep't of HEW, 504 F.2d 238, 248 (D.C.Cir.1974), cert. denied, 421 U.S. 963 , 95 S.Ct. 1951 , 44 L.Ed.2d 450 (1975). The unsupported allegation that hired consultants might have an incentive to act dishonestly cannot overcome the presumption that agency officials and those who assist them have acted properly. See Willapoint Oysters, Inc. v. Ewing, 174 F.2d 676, 696 (9th Cir. 1949). Thus we generally see no reason to force agencies to hire enormous regular staffs versed in all conceivable technological issues, rather than use their appropriations to hire specific consultants for specific problems.
76
LIA's second attack goes to specific uses of consultants, and alleges damage to the state of the rulemaking record, rather than to the Assistant Secretary's fulfillment of her personal responsibility. After closing the record, OSHA sought help from outside consultants in reviewing the record and preparing the Preamble. Two consultants were primary. The agency asked David Burton and DBA to help review the record to determine the feasibility of a permissible air-lead standard of 50 ug/m 3, as opposed to the 100 ug/m 3 standard the agency had proposed in the original notice of rulemaking, and on which most of the public commentary had focused. And OSHA asked Nicholas Ashford and CPA to analyze, in light of the record, the possibility of marking a correlation between air-lead levels and blood-lead levels. Both these consultants had previously aided OSHA by supplying on-the-record reports and testifying as expert witnesses at the public hearings. 32 Both fulfilled the new requests by submitting written reports, of 117 and 192 pages respectively, neither of which the agency has released or placed in the rulemaking record. LIA contends that the reports are illegal ex parte communications which, like the communications with the staff advocates described earlier, constitute "secret briefs" and off-the-record evidence which LIA was deprived of a chance to rebut and the court a chance to review.
77
We note first that, as in the case of the staff-influence charge discussed earlier, LIA has not identified any hard data or new legal arguments which are contained only in the allegedly improper ex parte communications and on which OSHA demonstrably relied in setting the standard. See Seacoast Anti-Pollution League v. Costle, 572 F.2d 872, 881 (1st Cir. 1978), cert. denied, 439 U.S. 824 , 99 S.Ct. 94 , 58 L.Ed.2d 117 (1979). Thus LIA has not shown that OSHA has materially prejudiced parties who were not privy to the communications. See id.; compare Doe v. Hampton, 566 F.2d 265, 276-278 (D.C.Cir.1977) (ex parte introduction of substantive medical evidence that went beyond merely assisting decision maker in evaluating record might violate statute and agency rules, but harmless error where evidence merely cumulative). Rather, LIA asks us to infer that there must have been such ex parte evidence or legal argument, its request essentially relying on three factors: (1) The consultants were not agency employees; (2) they had previously testified as expert witnesses and prepared on-the-record reports; and (3) the documents we have before us, which describe the agreements and expectations between OSHA and the consultants and the content of the undisclosed reports, imply that actual new evidence was requested and supplied. We find the first two factors legally irrelevant, or at least insufficient to prove impropriety. As for the third, as we demonstrate below, we simply reject LIA's construction of the documents.
78
Were we to construe these factors otherwise, we might face the difficult task of resolving the scope of the ex parte contacts doctrine as generated by Home Box Office, Inc. v. FCC, supra, and developed by United States Lines, Inc. v. FMC, supra : Does the doctrine apply to a rulemaking proceeding leading to a truly general regulation, as opposed to a proceeding resolving "conflicting private claims to a valuable privilege" like that in Home Box Office or quasi-adjudication like United States Lines ? 33 But we need not address that question here, because the documents show that the communications between the agency and the consultants were simply part of the deliberative process of drawing conclusions from the public record. The consultants acted after the record was closed as the functional equivalent of agency staff, so the question of the legal propriety of OSHA's reliance on DBA and CPA is foreclosed by our earlier conclusion that neither the APA nor the Home Box Office doctrine imposes a separation-of-functions requirement on the agencies. Thus, even though we readily assume that OSHA used the consultants' reports and even incorporated parts of them verbatim in the Preamble LIA has suffered no legal prejudice from such use.
79
Despite some suspicious phrases singled out by LIA, a few examples from the documents reveal that the consultants' task was to help in the deliberative process. The contract between OSHA and DBA happens to include the remark: "It is understood by OSHA and DBA that the information necessary to provide satisfactory 'answers' may not be found in the hearing record." ALD 23. But the immediately preceding line states that "(a)nswers to these suggestions must be derived exclusively from the hearing record," and the agreement clearly describes DBA's task as one of analyzing, not providing, evidence. ALD 22-23. The language underscored by LIA is nothing more than a realistic warning that there are no absolutely clear answers to some of the speculative questions about the lead standard. Similarly, the remark in a Task Order to DBA that "(r)eferences supplied that are not in the record are for your own information only and should not be used as documentation for any conclusions," ALD 101, read carefully, actually supports OSHA here all the more so in context. 34 Finally, in a released segment of its actual post-hearing report DBA states unmistakably, "Where sufficient information is not available in the record from which to draw conclusions, no analysis is presented." ALD 108. 35
80
The OSHA contract with CPA and Ashford may seem to give the consultant a broad mandate "to conduct additional research and prepare material supplementary to the above testimony regarding medical removal protection (and a) post-hearing comment in response to a number of animal studies cited during the hearings to support a view contrary to OSHA's application of the Bernard model to predict blood lead levels." ALD 11. 36 At other points the contract asks CPA to "address the criticisms and defense" of the theoretical models on which OSHA sought to rely for its air-lead standards. ALD 12. Again, these requests to CPA must be read in the context of its assignment to summarize record evidence, to evaluate studies to probe them for flaws in method, and generally to marshal and interpret the data. ALD 147-152 (Vaughn index to CPA report). The phrases "additional research" and "material supplementary" add nothing to the clear instructions to CPA to offer opinions about and analyses of record evidence. That CPA was to respond off-the-record to on-the-record criticism of its own earlier report and testimony means nothing more than that its own earlier on-the-record testimony and comment were part of the larger rulemaking record it was now to review.
81
When performed by agency staff, this sort of sophisticated review of evidence has always been recognized as legitimate participation in the deliberative process. Morgan I, supra, 298 U.S. at 481-482 , 56 S.Ct. at 911, 912 ; Montrose Chemical Corp. v. Train, 491 F.2d 63, 69-71 (D.C. Cir. 1974); Braniff Airways, Inc. v. CAB, supra, 379 F.2d at 461 . And the circuit courts, in applying the intra-agency exemption to the Freedom of Information Act, 5 U.S.C. § 552 (b)(5) (1976), have recognized that where outside consultants so engage in the deliberative process there is no functional difference between staff and consultants, and so there should be no legal difference. Thus, in Soucie v. David, 448 F.2d 1067 , 1078 n.44 (D.C. Cir. 1971), we asserted that hired consultants, just like regular staff, need assured confidentiality so they can advise agency officials frankly. The Soucie holding was adopted in Wu v. Nat'l Endowment for Humanities, 460 F.2d 1030, 1032-1033 (5th Cir. 1972), cert. denied, 410 U.S. 926 , 93 S.Ct. 1352 , 35 L.Ed.2d 586 (1973), where the court also noted, as we do here, that the agency had been specifically empowered by statute to hire consultants.
82
Recognizing that the principle of Exemption 5 of the FOIA bears generally on the question of post-hearing contacts with consultants, we find ourselves fortunate in having before us Judge Friendly's recent opinion holding that Exemption 5 applies directly to the very reports at issue in this case. After petitioning for review of this rulemaking, LIA went to federal court in New York to seek disclosure of various consultants' reports under the FOIA. In Lead Industries Ass'n, Inc. v. OSHA, 610 F.2d 70 (2d Cir. 1979), Judge Friendly examined the same affidavits, agreements, and indices that we have examined, and concluded that both the DBA report and the CPA report contributed to the process by which the Assistant Secretary made her final decision. He conceded that the reports might contain some factual matter, but asserted that in a vast rulemaking like this one such information was necessarily incident to and not severable from the process of summary and analysis. Id. at 83 . He suggested, moreover, that to the extent the reports drew inferences from and weighed the evidence they were more truly "deliberative" and thus better candidates for exemption than mere summaries of the record. Id.
83
Finally, responding to LIA's argument that CPA's off-the-record response to criticisms of its earlier report and testimony was improper, Judge Friendly found that the response contained no new evidentiary material, and that "the answers are of the same sort that could have been made by a knowledgeable member of OSHA's staff defending his expert witness' credibility before the decision maker." Id. at 84 . Thus, the earlier participation of these consultants as expert witnesses in no way disqualifies them as aides in the final decision. Indeed, their participation is even less suspect than that of the staff advocates we discussed earlier, since any predisposition they held was a result of their factual research and not, as in the case of staff, an incident of serving as legal advocates for an institutional position. Once again, we sense no serious danger "that the final shaping of the rules we are reviewing here may have been by compromise among the contending industry forces, rather than by exercise of the independent discretion in the public interest" of agency officials. Home Box Office, Inc. v. FCC, supra, 567 F.2d at 53 . 37
84
We note finally that, at least with respect to DBA's post-hearing report on feasibility, OSHA's reliance on consultants at the deliberative stage of the rulemaking did cause problems in the record. Thus we share LIA's concern that the post-hearing contract with DBA was OSHA's first attempt to obtain expert advice directly addressing the feasibility of the 50 ug/m 3 standard. However, since the consulting contract only requested analysis of established record evidence, we prefer to consider any resulting deficiencies in the record as part of our review for substantial evidence to support OSHA's findings on feasibility, rather than under the ex parte contacts doctrine.
D. Notice of Rulemaking
85
The industry's most serious procedural attack on the lead standard goes to the sufficiency of the original notice of proposed rulemaking. The notice issue illustrates as well as any other that the rulemaking to set the lead standard was something less than a masterpiece of administrative procedure. Our task, however, is only to see whether the agency has complied with the law, and though the notice of rulemaking could well have been clearer and more specific, it meets the demands of that ubiquitous term of art in administrative law "adequacy."
86
The OSH Act itself simply requires the Secretary to publish a proposed rule in the Federal Register, 29 U.S.C. § 655 (b)(2) (1976), but implicitly incorporates the general requirement for informal rulemaking in 5 U.S.C. § 553 (b)(3) (1976): notice of "the terms or substance of the proposed rule or a description of the subjects and issues involved." The agency must "fairly apprise interested persons" of the nature of the rulemaking, American Iron & Steel Institute v. EPA, 568 F.2d 284 , 293 (3d Cir. 1977), but a final rule may properly differ from a proposed rule and indeed must so differ when the record evidence warrants the change. "A contrary rule would lead to the absurdity that in rule-making under the APA the agency can learn from the comments on its proposals only at the peril of starting a new procedural round of commentary." International Harvester Co. v. Ruckelshaus, 478 F.2d 615 , 632 n.51 (D.C. Cir. 1973). Where the change between proposed and final rule is important, the question for the court is whether the final rule is a "logical outgrowth" of the rulemaking proceeding. South Terminal Corp. v. EPA, 504 F.2d 646 , 659 (1st Cir. 1974). The courts have described the notice requirement with other verbal formulas, but general principles only take us so far. We must proceed to compare carefully the specific language of the proposal with that of the final rule, in light of the evidence adduced at the hearings.
87
LIA and other industry parties stress two serious and related differences between the proposed and final lead standard: (1) The proposal set a PEL of 100 ug/m 3 while the final standard's PEL is 50 ug/m 3. (2) The proposal apparently allowed industry to meet the PEL by relying on respirators whenever engineering and work practice controls proved infeasible, while the final standard strictly requires industry, after interim phase-in periods, to meet the PEL without relying on respirators at all.
88
1. Notice of the PEL. The difference between a PEL of 100 ug/m 3 and one of 50 ug/m 3 is obviously substantial. Though OSHA finds the latter PEL feasible, it cannot deny that the change in the final rule greatly increases the number of employees affected by the standard, as well as the standard's economic and technological demands on industry. Nevertheless, the published explanation accompanying the proposed rule does in fact give notice that OSHA might set a PEL lower than 100 ug/m 3.
89
OSHA first listed the major issues raised by the rulemaking, including:
90
1. Whether the proposed permissible exposure limit to lead should be 100 ug/m 3: and whether this level incorporates an appropriate margin of safety;
91
2. Whether subclinical effects of exposure should be considered in establishing a standard for occupational exposure to * * * lead;
92
8. To what extent are there groups with increased susceptibility to lead in the working population, such as women of childbearing age; and should such increased susceptibility, if it exists, be considered in establishing a standard for occupational exposure to * * * lead(.)
93
40 Fed.Reg. 4593 4/1-2 (1975). The question of "appropriate margin of safety" raised the possibility that OSHA might find the 100 ug/m 3 PEL not safe enough. The issue of subclinical effects, in the context of the published proposal as a whole, also portended a lower PEL. There is scientific consensus that people rarely suffer actual clinical symptoms of lead intoxication at blood-lead levels below 80 micrograms of lead per 100 grams of whole blood (80 ug/100g), id. at 4593 5/2, which would probably correlate with air-lead levels over 100 ug/m 3. 38 Nevertheless, OSHA noted that there were studies showing such subclinical effects of lead as inhibition of the important enzyme ALA at a blood level of 40 ug/100g, id. at 4593 6/1, which might correlate with an air level as low as 50 ug/m 3. The proposal noted, in fact, that "it is not known with certainty at what level this enzyme inhibition becomes clinically important," id. at 4593 5/1, and, most important, clearly stated:
94
In any event, the question of both clinical and subclinical effects should be fully discussed in comments submitted as well as at the hearing, if one is held, and might necessitate a different permissible exposure limit in the final standard than that proposed.
Id. (emphasis added). 39
95
Finally, notice of the issue of the special susceptibility of women of child-bearing age also should have alerted the parties that OSHA might lower the proposed PEL. The proposal noted there was evidence that fetuses and children, as well as people already suffering such conditions as anemia or renal insufficiency, needed their blood-lead levels kept as low as 30 ug/100g, and plainly stated that OSHA believed its statutory mandate required it to protect these groups. Id. at 4593 6/3. 40 Indeed, the supplemental notice announcing the public hearing stated that comments received from both industry and health groups since the original proposal had revealed that the 100 ug/m 3 standard "is actually inadequate to protect a developing fetus." 42 Fed.Reg. 81 0/1 (1977).
96
Obviously, OSHA would have served the parties far better had it listed in the proposal two or more alternative PEL's and invited comments on each, even if it had stated a preference for one of them. 41 But the language of the proposal contains enough suggestions of the possibility of a lower PEL to meet the test of "adequate" notice. 42 Moreover, although at this point we need not consider "substantial evidence," the rulemaking produced enough evidence on such issues as subclinical effects of lead to make the lower PEL a "logical outgrowth" of the proceeding.
97
2. Notice of means-of-compliance rules. The question of notice with regard to the respirators as a means of compliance with the PEL is more difficult. The difficulty lies in the confusing or, more generously, subtle change between the proposal and the final rule. Part of the confusion is doubtless due to LIA itself, which has read the final standard as inflexibly banning respirators as a means of compliance after the phase-in period, while the final standard in fact appears to allow use of respirators when engineering and work practice controls alone cannot meet the PEL. LIA has both overstated the role of respirators in the proposal and understated their role in the final standard. But OSHA also merits some blame for the confusion, since the compliance rules in the final standard appear ill-drafted and ill-explained, especially in light of their departure from other OSHA final rules as well as the proposed lead rules. 43 Nevertheless, a comparison of the proposal with the final standard reveals that the former adequately anticipated the latter.
98
The proposal clearly established a hierarchy of preference among the three general means of compliance. Industry was to immediately institute engineering controls. To the extent engineering controls proved infeasible or could not by themselves achieve the PEL, they were to be supplemented by work practice controls, but industry still was to use engineering controls to reduce lead exposure as far as such controls could. 40 Fed.Reg. 4594 4/2 (1975). In turn, industry was to use work practice controls, as a supplement to engineering controls, to reduce lead exposure to the lowest possible limit, and only if this combination of means still did not meet the PEL could industry turn to respirators. Id. at 4594 4/2-3. The proposal thus unmistakably made respirators the last resort, and in fact required each employer to create and carry out a written program designed "to reduce exposures to or below the permissible exposure limit solely by means of engineering controls supplemented, when necessary, by work practice controls." Id. at 4594 4/3. 44 The published explanation of the proposed rule adds that even an employer in full compliance with his own approved written program would be violating the proposed standard if he failed to install all engineering controls that were currently feasible. Id. at 4594 0/1. The proposal thus placed great pressure on industry to meet the PEL as soon as possible without relying on respirators, and even requested "(f)urther information * * * as to the feasibility of reaching the permissible exposure limit solely through the use of engineering controls and supplementary work practices." Id.
99
The compliance rules in the final standard require very careful reading and even imaginative construction. Though we address them in great detail when we review OSHA's feasibility findings, see Part VI infra, we must briefly summarize them here. The language on which LIA obviously relies is as follows:
100
The employer shall implement engineering and work practice controls (including administrative controls) to reduce and maintain employee exposure to lead in accordance with the implementation schedule in Table I below. Failure to achieve exposure levels without regard to respirators is sufficient to establish a violation of this provision.
101
Section 1910.1025(e)(1). The implementation deadline table, which the proposal did not anticipate, sets different interim compliance periods for each industry covered by the standard; after the specified date the industry must meet the PEL without relying on respirators.
102
The standard then states, however, that "(w)here engineering and work practice controls do not reduce employee exposure to or below the 50 ug/m 3 permissible exposure, the employer shall supplement these controls with respirators in accordance with paragraph (f)." Section 1910.1025(e)(2). Paragraph (f) goes on to permit use of respirators:
103
(i) During the time period necessary to install or implement engineering or work practice controls, except that after the dates for compliance with the interim levels in table I, no employer shall require an employee to wear a negative pressure respirator longer than 4.4 hours per day;
104
(ii) In work situations in which engineering and work practice controls are not sufficient to reduce exposures to or below the permissible exposure limit (.)
105
Section 1910.1025(f)(i)-(ii). 45 The standard may appear to contradict itself, first banning all reliance on respirators to meet the PEL and then apparently contemplating reliance on respirators after the phase-in periods end. Nevertheless, with the help of OSHA's somewhat confusing explanation in the Preamble, we can resolve the apparent contradiction. 46
106
The chief innovation in the final rule is to delete the proposal's qualification that industry need only install those engineering controls that are "feasible." OSHA explains in the Preamble that it made the deletion in order to "preclude individual employers from raising and proving the defense of infeasibility of compliance in an enforcement action * * *." 5299 1/1. Thus OSHA believed it had generally established the feasibility of the new PEL. But elsewhere the Preamble suggests that OSHA did not intend to absolutely prevent an employer from pleading infeasibility in an enforcement proceeding. An employer's failure to meet the PEL without respirators after the interim period would establish a "prima facie violation" of the standard. Id. (emphasis added). In certain rather ill-defined cases where feasible engineering and work practice controls cannot reduce exposure to the PEL, and in "other cases," 47 the employer, says OSHA, could raise a defense of infeasibility, but must bear the burden of proving infeasibility. 5299 1/1, 2. Moreover, "OSHA will take individual claims of infeasibility into account through abatement programs tailored to meet the needs of individual firms and their employees." 5299 1/1. 48
107
The final standard thus creates a strong general presumption of the feasibility of meeting the PEL without reliance on respirators after a scheduled phase-in period. Like the proposal, it puts great pressure on employers to meet the PEL through engineering and work practice controls alone as soon as possible. Unlike the proposal, it creates that pressure through a specific timetable and a strict procedural rule for enforcement proceedings. Moreover, the final standard, in a sense, places more emphasis on respirators since, unlike the proposal, it does not require employers to install all feasible engineering controls immediately, but allows primary reliance on respirators during the interim periods. Finally, whereas the proposal required industry to try to meet the PEL solely through engineering controls before it resorted to work practice controls, the final standard treats these two means of compliance as equally acceptable.
108
Once again, the agency might have given clearer notice of the potential change from the proposed rule. And the industry parties' attacks on the combined effects of the lowered PEL and the deletion of the feasibility qualification are certainly plausible. But the question is still whether the agency did a legally adequate job, not whether it did the best possible job.
109
LIA argues that had the changes been properly noticed, both OSHA and the industry could have done detailed feasibility studies of the new standard. We assume that fuller notice might have added something to the record. But "(w)e must be satisfied * * * that given a new opportunity to comment, commenters would not have their first occasion to offer new and different criticisms which the Agency might find convincing." BASF Wyandotte Corp. v. Costle, 598 F.2d 637, 642 (1st Cir. 1979) (emphasis added), cert. denied, 444 U.S. 1096 , 100 S.Ct. 1063 , 62 L.Ed.2d 784 (1980). The First Circuit went on to say:
110
Not only do we think that petitioners had fair notice * * *, but we cannot think how their comments would have differed fundamentally if they had known what EPA would do. Though they would have had a different proposition against which to argue, their proposed solutions would, presumably, have been the same for the same reasons. They might have responded in greater volume or more vociferously, but they have not shown us that the content of their criticisms would have been different to the point that they would have stood a better chance of convincing the Agency * * *. * * *
111
598 F.2d at 644 ; see 5 U.S.C. § 706 (1976) (in reviewing agency action "due account shall be taken of the rule of prejudicial error"). This notion of a "harmless error" rule for notice questions applies to LIA's argument here. LIA contended that the proposed standard was infeasible, and would have done the same for the final standard. OSHA would still have believed LIA's cost estimates grossly inflated and its vision of future technology too cramped, and would still have asserted its legal power to force changes of uncertain cost and technological feasibility. 49
112
Two other industry petitioners make special challenges on the notice issue with respect to the lower PEL and the new respirator rule. The National Association of Recycling Industries, Inc. (NARI), whose members face a phase-in period only half as long as that of the primary lead producers, contends that the proposal did not give notice that compliance deadlines would not be uniform. The proposal gave ample notice, however, that the rulemaking would address the feasibility of the standard for all affected industries, 40 Fed.Reg. 4593 4/2 (1975), and the detailed evidence of the compliance difficulties of the different industries adduced at the hearing certainly makes the differing compliance deadlines a "logical outgrowth" of the proceeding. Moreover, NARI's use of precedent is in error. We have, as NARI argues, remanded to OSHA where the agency had not developed enough information about the relative abilities of different industries to meet a standard. Industrial Union Dep't, AFL-CIO v. Hodgson, supra, 499 F.2d at 480 . But the ground for remand there was the agency's failure to conduct enough cross-examination on that issue to create a proper record, a ground irrelevant to the notice issue and perhaps even barred now by Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., supra. In Synthetic Organic Chemical Manufacturers Ass'n v. Brennan, 506 F.2d 385, 388-390 (3d Cir. 1974), cert. denied, 423 U.S. 830 , 95 S.Ct. 1396 , 43 L.Ed.2d 653 (1975), the court did state that the agency had given insufficient notice that it would promulgate a nonuniform rule, but that case was controlled by the special statutory provision on giving notice after submission of an advisory committee's report, 29 U.S.C. § 655 (b)(2) (1976), not by the general notice requirement.
113
The Bell System points to a very subtle change from proposed to final rule: The final rule not only lowered the PEL, but changed the formula for the PEL from an eight-hour "Time Weighted Average (TWA) based on a 40-hour work week to an eight-hour TWA without reference to a work week. Bell contends that this change was critical for the telecommunications industry, whose exposure to lead is both low and extremely intermittent, and that under the proposed rule Bell might not have been covered by the standard in the first place. Bell, however, did participate in the proceedings, JA 1383, perhaps as a result of the clear notice in the proposal that the standard would "apply to all workplaces in all industries where lead is occupationally present or released." 40 Fed.Reg. 4593 7/3-4593 8/1 (1975) (emphasis added). 50
114
Finally, LIA makes notice challenges to two other elements of the final standard. First, it contends that the proposal gave insufficient notice that the new standard would require employers to perform quantitative fit tests on all respirators, Section 1910.1025(f)(3)(ii), and to provide an air-purifying respirator to any employee who requests one, Section 1910.1025(f)(2)(ii). This challenge has no merit. The proposal gave ample notice that OSHA believed respirators were often unreliable, 40 Fed.Reg. 4594 0/1 (1975). The proposed rule would have allowed employers to use respirators only under the stringent standards set out in 29 C.F.R. § 1910.134 (d)-(f) (1978); see 40 Fed.Reg. 4594 5/1 (1975), and required them to provide air-purifying respirators at certain air-lead levels, id. at 45944 Table I. This was sufficient notice, and the evidence that the rulemaking produced on the effectiveness of respirators, 43 Fed.Reg. 52993 (1978), clearly shows the logic of the change in the final rule, especially given the important new role of respirators during the phase-in periods. 51
115
LIA also points to a change in the rule on access to employee medical records. The proposal required that records of measurements of employee exposure to lead be made available "to employees, former employees, or their designated representatives." 40 Fed.Reg. 4594 7/1 (1975) (emphasis added). The final standard grants employees access to biological monitoring and medical removal records as well, and also makes such records available to "authorized employee representatives." Section 1910.1025(n)(4)(ii) (emphasis added). OSHA has apparently confirmed LIA's suspicion that the change in wording means that union representatives may gain access to an employee's medical removal records without the employee's consent. 52 We discuss below LIA's contention that the final rule, so construed, goes beyond OSHA's statutory power and violates employees' rights to privacy. See Part IV-C infra. The question here is whether OSHA gave ample notice for such a change.
116
OSHA's justification for the change, OSHA brief at 303-304, is a tour de force of obfuscation. OSHA contends that "designated" and "authorized" are interchangeable. Were they indeed interchangeable, and if "authorized" meant "authorized by the employee," the whole statutory and constitutional debate over this provision would be unnecessary. But though we can barely follow the explanation in the OSHA brief, the change from the proposal is not great. The new rule simply includes union access as a new means toward the continuing goal of ensuring that employers comply with the standard. Moreover, OSHA's Preamble plausibly suggests that comments and testimony on MRP adduced during the rulemaking made the change reasonable. 5300 5/3-5300 6/2. See Taylor Diving & Salvage Co. v. U. S. Dep't of Labor, 599 F.2d 622, 626 (5th Cir. 1979) (proposal for employee access to records gave sufficient notice of final rule giving access to the authorized employee representatives). We reserve for our discussion of the substantive validity of the access rule a fuller analysis of the problems it raises.
E. Denial of Cross-Examination
117
One other procedural challenge deserves brief attention. The American Iron and Steel Institute (AISI) objects that OSHA never called a representative of John Short & Associates to testify at the oral hearing, so AISI was denied its right to cross-examine the authors of the report that contained virtually the agency's only evidence on the feasibility of the standard for AISI member industries. 53 Whether the Short Report constitutes substantial evidence to support the feasibility of the standard for these "other industries" is a serious question in this case, and one which we address later in great detail. See Part VII-B-8 infra. For now, we readily assume that the record on this important question would have been fuller had AISI cross-examined Short. The question here, however, is not the likely effect of such cross-examination on the state of the record, but whether AISI has a particular legal right to develop the record by cross-examination. AISI offers two legal bases for this right, one in the OSH Act and one in the agency's own regulations.
118
We first note OSHA's argument that AISI was not actually denied the right of cross-examination on this issue. OSHA states that the real author of the sections of the Short Report dealing with AISI member industries was DBA, and that David Burton and his colleagues were in fact cross-examined at length. AISI responds that in proffering the Burton group as witnesses OSHA never informed the parties that these witnesses had helped prepare the Short Report (as opposed to the final DBA report) or were qualified to testify on it. See JA 2. Moreover, notes AISI, Burton himself stated under cross-examination that he was not familiar with the economic analysis in the Short Report. JA 170-171. Whether OSHA had some affirmative duty to identify the DBA witnesses as the proper subjects for cross-examination on the Short Report is a novel question. It is subsumed, however, in the question whether LIA had a distinct right of cross-examination here. We will assume that if the law required OSHA to provide opportunity to cross-examine Short, it would require OSHA to give the parties enough information to avail themselves of that opportunity. We find, however, that the law did not require that OSHA give AISI an opportunity to cross-examine Short.
119
AISI's first purported legal ground is the statutory requirement that OSHA base any standard on "the best available evidence." 29 U.S.C. § 655 (b)(5) (1976). But that language says nothing specific about agency procedure, and in light of Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., supra, we are loath to discover procedural rules in such general words. 54 AISI's other ground is a bit more troubling. OSHA's own regulation states that "(t)he presiding officer shall provide an opportunity for cross-examination on crucial issues." 29 C.F.R. § 1911.15 (b)(2) (1979). And certainly OSHA cannot deny that feasibility is a crucial issue. But the regulation, read in context, is too ambiguous to support AISI's claim. In the same C.F.R. section OSHA explains the cross-examination rule as follows:
120
The oral hearing shall be legislative in type. However, fairness may require an opportunity for cross-examination on crucial issues. The presiding officer is empowered to permit cross-examination under such circumstances. * * *
121
Id. § 1911.15(a)(3). The code section as a whole thus leaves us uncertain whether the presiding officer is required to grant cross-examination, or is merely allowed to do so. Furthermore, OSHA never actually took advantage of its opportunity to present the authors of the Short Report as affirmative witnesses for the standard. Thus, even if we construed the rule as guaranteeing cross-examination, we would have to decide whether it guarantees cross-examination of any person who has put evidence in the record, or only of those who have participated in the oral hearing. The regulation offers us no help on this question, but if anything the latter construction seems more plausible. The explanatory language quoted above suggests that a person who seizes the opportunity to give legislative-type testimony at the oral hearing must face cross-examination.
122
An agency's interpretation of its own regulations is controlling, except where such an interpretation is clearly erroneous. United States v. Larionoff, 431 U.S. 864, 872 , 97 S.Ct. 2150, 2155 , 53 L.Ed.2d 48 (1977). Here OSHA has offered no such interpretation in its brief, since it relies on its argument that cross-examination of DBA satisfied any right AISI might possess. Nevertheless, OSHA has effectively interpreted the rule by its actions, and where the rule is so ambiguous we cannot say that OSHA has acted in clear violation of it. Further, the explanation in the regulations emphasizes that "(t)he essential intent is to provide an opportunity for effective oral presentation by interested persons which can be carried out with expedition and in the absence of rigid procedures which might unduly impede or protract the rulemaking process." 29 C.F.R. § 1911.15 (a)(3) (1979) (emphasis added). Thus, to uphold AISI's claim here would be to violate the spirit of the rule, however uncertain is its letter.
IV. SUBSTANTIVE STATUTORY ISSUES
A. Medical Removal Protection
123
One of the most vigorously contested issues in the case is the substantive validity of the provision for Medical Removal Protection (MRP). OSHA regards MRP as a sine qua non of the lead standard, insisting that without it employees, fearing they will lose jobs if they demonstrate high blood-lead levels, will refuse to participate in medical surveillance. The industry regards MRP as an illegal and unwarranted extension of OSHA's authority a cash subsidy to encourage employees to cooperate with medical surveillance when the statute expressly requires employees to comply with all provisions of the standard. 29 U.S.C. § 654 (b) (1976). The essential question is one of statutory interpretation. LIA contends that MRP lies outside OSHA's statutory grant of authority, contradicts the will of Congress as manifested by the OSH Act's legislative history, and violates an express prohibition on OSHA's power within the statute. 55 We reject LIA's contentions.
124
1. The MRP program. MRP supplements the medical surveillance provisions of the lead standard. All employers are required to measure the air-lead content of all workplaces to determine whether employees suffer exposure to lead above the "action level" of 30 ug/m 3, or above the PEL. Section 1910.1025(d). For any workers exposed to air-lead above the action level for more than 30 days a year, the employer must offer a program of biological monitoring, including exhaustive blood measurements, other laboratory tests, and detailed medical examinations. Section 1910.1025(j). If these tests and examinations reveal that a worker has a high blood-lead level or some ailment attributable to lead exposure, the employer must remove the worker from the high-exposure workplace. The standard sets out the criteria for and terms of this removal in great detail. Section 1910.1025(k).
125
The standard will ultimately require employers to remove any worker who is exposed to air-lead at or above the action level 56 and whose blood-lead level averages 50 ug/100g or more on three consecutive blood tests (or on all tests conducted over a six-month period if the worker's last three tests took place over a period of less than six months), unless the worker's blood-lead level on the last of these tests is at or below 40 ug/100g. However, since a great number of employees currently have blood-lead levels well above these figures, OSHA found it infeasible to enforce these removal criteria immediately. 5297 4/2. OSHA therefore has phased in the removal standard gradually, with three preliminary stages requiring removal at progressively lower blood-lead and air-lead levels. 57 For each stage of the removal standard OSHA has also designated the reduced blood-lead level which employees must achieve before they can return to the jobs from which they were removed. 58 Finally, the employer must also remove an employee when a "final medical determination" 59 is made that the lead exposure at the employee's workplace threatens his health, and the employer cannot return the employee to the workplace until a final medical determination is made that exposure in the workplace no longer places the employee's health at risk. 60
126
The rule on MRP benefits, Section 1910.1025(k)(2), is the true center of the controversy. An employer enjoys the discretion to place a removed worker in a low-exposure job in the same plant, or a job at a non-lead facility, or even to simply retain him at his high-exposure job for a smaller number of hours per week to reduce his time-weighted average exposure level below the action level. 5297 5/2. If these actions fail, however, the employer must lay the worker off. Id. And most important, whatever form removal takes, the employer must maintain the worker's earnings and seniority rights during removal for a period up to 18 months, 61 and must restore him to all the rights of his original job status when he becomes medically eligible for return. 62
127
2. General authority under the OSH Act. The face of the statute and the legislative history both demonstrate unmistakably that OSHA's statutory mandate is, as a general matter, broad enough to include such a regulation as MRP. 63 A number of terms of the statute give OSHA almost unlimited discretion to devise means to achieve the congressionally mandated goal. See Industrial Union Dep't, AFL-CIO v. Hodgson, supra, 499 F.2d at 474 . Thus OSHA is to ensure worker safety and health "by developing innovative methods, techniques, and approaches for dealing with occupational safety and health problems(.)" 29 U.S.C. § 651 (b)(5) (1976). The definition of an "occupational health and safety standard" speaks of "a standard which requires * * * the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment." Id. § 652(8). Moreover, an OSHA standard should, "(w)here appropriate, * * * prescribe suitable * * * control * * * procedures" to prevent hazards. Id. § 655(b)(7). Finally, "(t)he Secretary * * * shall * * * prescribe such rules and regulations as he may deem necessary to carry out (his) responsibilities" under the statute. Id. § 657(g)(2). Thus, as Senator Saxbe stated in noting the similarity of two proposed versions of the Act:
128
Neither bill contains, as one might reasonably imagine, a list of specific "do's and don'ts" for keeping workplaces safe and healthful. Industrial safety and health problems are as complex and changing as American industry itself. They cannot be solved by a lengthy list of prohibitions spelled out in a statute.
129
Instead, the bills would set up a legal structure; that is, they would empower an administrative agency to issue detailed safety and health regulations, called standards, which will have the force and effect of law. * * *
Legislative History, supra, at 297-298. 64
130
The scheme of the statute, manifest in both the express language and the legislative history, also appears to permit OSHA to charge to employers the cost of any new means it devises to protect workers. Thus Congress directed all enforcement authority for OSHA standards against the employer, 29 U.S.C. §§ 658 , 659(a) (1976), and charged employers with the expense of providing medical examinations to employees, id. § 655(b)(7), and of keeping all records necessary for enforcement, id. § 657(c). The employer's general financial responsibility under the Act is also implicit in the requirement that
131
11 (e)ach employer shall promptly notify any employee who has been or is being exposed to toxic materials * * * and shall inform any employee who is being thus exposed of the corrective action being taken.
132
The report of the Senate subcommittee from which the statute emerged stressed the need to place the cost of standards on employers, noting that
133
11 many employers particularly smaller ones simply cannot make the necessary investment in health and safety, and survive competitively, unless all are compelled to do so. The competitive disadvantage of the more conscientious employer is especially evident where there is a long period between exposure to a hazard and manifestation of an illness. In such instances a particular employer has no economic incentive to invest in current precautions, not even in the reduction of workmen's compensation costs, because he will seldom have to pay for the consequences of his own neglect.
134
S. Rep. No. 91-1282, 91st Cong., 2d Sess. 4 (1970), reprinted in Legislative History, supra, at 144. 65 Senator Yarborough, chairman of the parent Committee on Labor and Public Welfare, told the Senate:
135
11 We need a Federal statute, not to try to federalize things, but to equalize the cost in one industry vis-a-vis another. We know the costs would be put into consumer goods but that is the price we should pay for the 80 million workers in America.
136
Legislative History, supra, at 444. Senator Eagleton, a member of the subcommittee, added that "(t)he costs that will be incurred by employers in meeting the standards of health and safety to be established under this bill are * * * reasonable and necessary costs of doing business." Id. at 1150.
137
LIA points to the statutory requirement that employees as well as employers comply with all OSHA regulations. 29 U.S.C. § 654 (b) (1976). But the subcommittee report made clear that this requirement is essentially an exhortation to employees to cooperate in the standards and is not meant
138
to diminish in anyway (sic ) the employer's compliance responsibilities or his responsibility to assure compliance by his own employees. Final responsibility for compliance with the requirements of this act remains with the employer.
139
S. Rep. No. 91-1282, supra, at 10-11, reprinted in Legislative History, supra, at 150-151; see Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541, 553 (3d Cir. 1976). 66
140
MRP thus appears to lie well within the general range of OSHA's powers. LIA nevertheless focuses on two signposts of congressional intent to show that the drafters of the statute specifically meant to deny OSHA power to create a program like MRP. First, LIA points out that the OSH Act was passed only a year after the Federal Coal Mine Health and Safety Act of 1969, which required job removal with earnings protection for miners whose chest x-rays revealed they had pneumoconiosis. 30 U.S.C. § 843 (b)(2)-(3) (1976). Thus, argues LIA, in 1970 Congress was well aware of the concept of medical removal protection, and so its failure either to require MRP in the OSH Act or at least to expressly delegate to OSHA the power to create it proves that Congress intended that OSHA not include MRP in any standards. 67 Thus LIA relies on the principle of expressio unius est exclusio alterius. Marshall v. Gibson's Products, Inc. of Plano, 584 F.2d 668, 675-676 (5th Cir. 1978). 68
141
We agree that this rule of statutory construction may provide some evidence of congressional intent, but the evidence is hardly decisive, or even strong:
142
This maxim is increasingly considered unreliable * * * for it stands on the faulty premise that all possible alternative or supplemental provisions were necessarily considered and rejected by the legislative draftsmen. * * *
143
Nat'l Petroleum Refiners Ass'n v. FTC, 482 F.2d 672, 676 (D.C.Cir.1973), cert. denied, 415 U.S. 951 , 94 S.Ct. 1475 , 39 L.Ed.2d 567 (1974). Moreover, the rule can only apply sensibly when we compare very similar statutes, and we find a crucial difference between the two in question here. In the OSH Act Congress invested a new agency with extremely broad jurisdiction to prevent all types of safety and health hazards throughout American industry. In the Coal Act, on the other hand, Congress culminated decades of intense concern for a single industry by creating a sharply focused statute, with 30 pages of safety and health regulations that even surpass an OSHA standard in their detail. 30 U.S.C. §§ 811-878 (1976). Congress may well have avoided all mention of medical removal protection in the OSH Act simply because it thought that mandating such a specific program was inappropriate in a statute so much broader and so much more dependent on agency implementation than the Coal Act.
144
LIA's second special argument on legislative intent is that the Congress that passed the OSH Act deliberately rejected an amendment, sponsored by Representative Daniels, that would have created a form of medical removal protection. And indeed Section 19(a)(5) of the House bill, H.R. 16785, 91st Cong., 2d Sess. (1970), Legislative History, supra, at 842, became controversial and even infamous as the "strike-with-pay" provision. LIA notes that Section 19(a)(5) had a purpose similar to that of MRP:
145
There is still a real danger that an employee may be economically coerced into self-exposure in order to earn his livelihood, so the bill allows an employee to absent himself from that specific danger for the period of its duration without loss of pay. * * *H.R. Rep. No. 91-1291, 91st Cong., 2d Sess. 30 (1970), reprinted in Legislative History, supra, at 860. LIA also points out that Senator Williams, in advocating the Senate bill, felt compelled to reassure his colleagues that it contained no "strike-with-pay" clause and so did not "rais(e) a possibility for endless disputes over whether employees were entitled to walk off the job with full pay(.)" Legislative History, supra, at 416.
146
LIA's argument, however, does not survive close reading of Section 19(a)(5), which reveals that the "strike-with-pay" clause differs markedly from the MRP regulation. The rejected clause reads as follows:
147
The Secretary of Health, Education, and Welfare shall publish within six months of enactment of this Act and thereafter as needed but at least annually a (l)ist of all known or potentially toxic substances and the concentrations at which such toxicity is known to occur; and shall determine following a request by any employer or authorized representative of any group of employees whether any substance normally found in the working place has potentially toxic or harmful effects in such concentration as used or found; and shall submit such determination both to employers and affected employees as soon as possible. Within sixty days of such determination by the Secretary of Health, Education, and Welfare of potential toxicity of any substance, an employer shall not require any employee to be exposed to such substance designated above in toxic or greater concentrations unless it is accompanied by information, made available to employees, by label or other appropriate means, of the known hazards or toxic or long-term ill effects, the nature of the substance, and the signs, symptoms, emergency treatment, and proper conditions and precautions of safe use, and personal protective equipment is supplied which allows established work procedures to be performed with such equipment, or unless such exposed employee may absent himself from such risk of harm for the period necessary to avoid such danger without loss of regular compensation for such period.
148
H.R. Rep. No. 1291, supra, at 12, Legislative History, supra, at 842. Two features of this clause merit emphasis. First, the grounds for removal derive from ad hoc, informal action by HEW. By comparison, the grounds for removal in MRP result from OSHA rulemaking. Second, and perhaps more important, under the "strike-with-pay" clause the employee himself can apparently make the individual judgment that the grounds for removal apply, and so he can effectively remove himself. Under MRP removal is determined solely by OSHA's objective criteria and may indeed occur against the worker's will. 69 Thus the "strike-with-pay" clause would probably invite controversy and abuse in a way that MRP would not, so the reasons for which Congress rejected the former may well not apply to the latter.
149
3. The Section 4(b)(4) prohibition. LIA's most serious statutory argument against MRP is that MRP violates the express prohibition contained in Section 4(b)(4) of the OSH Act, 29 U.S.C. § 653 (b)(4) (1976):
150
Nothing in this chapter shall be construed to supersede or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.
151
LIA argues vigorously that MRP contravenes this prohibition in both purpose and effect. As a matter of purpose, it cites evidence that OSHA designed MRP to remedy the inadequacies of state workmen's compensation laws. JA 1082-1090. But this evidence shows little more than that LIA was able to put its ideas into the mouths of OSHA witnesses during cross-examination, and in any event we do not construe Section 4(b)(4) as being concerned with agency motive. LIA's argument on the effect of MRP does, however, deserve serious attention.
152
Under workmen's compensation law, a worker suffering disablement of a designated type can recover, depending on the state, up to two thirds of his lost wages. These laws presume that if a disabled worker could recover all his lost wages, he would have no incentive to return to work. JA 1087-1088. LIA contends that under MRP a worker would never seek worker's compensation, nor would he ever become medically or financially eligible for it. A worker removed for such a disability would be guaranteed all the earnings rights of his high-exposure job; suffering no loss of wages, he would be entitled to no wage replacement under worker's compensation. Moreover, under MRP most workers would be removed because of high blood-lead levels before they exhibit clinical symptoms of disablement. Thus they would enjoy their guaranteed salary before they became disabled in the eyes of workmen's compensation law. LIA concludes that for workers vulnerable to lead disease MRP would "supersede" and "affect" worker's compensation law to the point of wholly replacing it.
153
LIA acknowledges that under the "credit" provision of MRP, Section 1910.1025(k)(2)(iv), the employer could reduce his payments under MRP by the amount the removed employee receives under worker's compensation. But LIA contends that this credit is meaningless since no worker harmed by lead will ever receive worker's compensation in the first place.
154
To resolve this issue we first recognize that Section 4(b)(4) is vague and ambiguous on its face. We must seek then the best, not a perfect, reading. 70 Thus LIA's argument under Section 4(b)(4) really shows that no literal reading of it is possible, since any health standard that reduces the number of workers who become disabled will of course "affect" and even "supersede" worker's compensation by ensuring that those workers never seek or obtain workmen's compensation benefits.
155
Applied to those workers who, thanks to MRP, never become disabled, the argument certainly proves too much. Nevertheless, LIA's argument, if sharpened, remains plausible, since it can still sensibly apply to a small and special group of workers: those who are removed under MRP pursuant to a final medical determination that they are already disabled, and for whom no low-exposure job of equal salary is available.
156
We must first reject OSHA's attempt to rebut LIA by asserting that, whereas worker's compensation is "compensatory" in nature, MRP is "preventive." At best, this assertion argues that MRP differs from worker's compensation in purpose, whereas we have said that Section 4(b)(4) is concerned with effects. At worst, OSHA's assertion is a non sequitur.
157
Nevertheless, though we must take seriously LIA's argument with respect to the special group of workers we have described, we do not think it proves MRP to violate Section 4(b)(4). First, this special group of workers is probably very small, and will become progressively smaller. As the new PEL lowers lead exposure throughout industry, and as older workers with high accumulations of lead retire, 5445 9/3, fewer and fewer workers will require removal because of manifest disablement from lead. Moreover, workers remaining in this group will still have an incentive to file worker's compensation claims. First, worker's compensation laws universally reimburse workers for the medical expenses of their disablement, while MRP does not. 5447 1/3. Second, MRP benefits can only last slightly more than 18 months, whereas worker's compensation may replace lost wages for longer periods or even indefinitely. 82 Am.Jur.2d Workmen's Compensation § 382 (1976). 71
158
The question remains, then, what does Section 4(b)(4) mean, if it does not mean that OSHA is barred from creating medical removal protection? We see two plausible meanings. First, as courts have already held, Section 4(b) (4) bars workers from asserting a private cause of action against employers under OSHA standards. Jeter v. St. Regis Paper Co., 507 F.2d 973 (5th Cir. 1975); Byrd v. Fieldcrest Mills, Inc., 496 F.2d 1323 (4th Cir. 1974). Second, when a worker actually asserts a claim under workmen's compensation law or some other state law, Section 4(b)(4) intends that neither the worker nor the party against whom the claim is made can assert that any OSHA regulation or the OSH Act itself preempts any element of the state law. For example, where OSHA protects a worker against a form of disablement not compensable under state law, the worker cannot obtain state relief for that disablement. Conversely, where state law covers a wider range of disablements than OSHA aims to prevent, an employer cannot escape liability under state law for a disablement not covered by OSHA. In short, OSHA cannot legally preempt state compensation law, even if it practically preempts it in some situations.
159
We conclude that though MRP may indeed have a great practical effect on workmen's compensation claims, it leaves the state schemes wholly intact as a legal matter, and so does not violate Section 4(b)(4).
160
4. Interference with national labor policy. As its final statutory argument LIA contends that MRP violates the policies of federal labor legislation. Specifically, LIA asserts that MRP sets in concrete a program that is a traditional and mandatory subject of collective bargaining under federal law, and thus violates the congressional principle that the substantive provisions of labor-management relations be left to the bargaining process. Local 24, Int'l Brhd of Teamsters v. Oliver, 358 U.S. 283, 295 , 79 S.Ct. 297, 304 , 3 L.Ed.2d 312 (1959). We do not doubt that MRP will have a noticeable effect on future collective bargaining, see, e.g., JA 1180-1183, 1215, but such an effect hardly proves that OSHA has misconstrued legislative intent.
161
Earnings protection is no doubt a mandatory subject of collective bargaining, but so is any issue directly related to worker safety. NLRB v. Gulf Power Co., 384 F.2d 822, 824-825 (5th Cir. 1967). In passing a massive worker health and safety statute, Congress certainly knew it was laying a basis for agency regulations that would replace or obviate worker safety provisions of many collective bargaining agreements. Congress may well have viewed collective bargaining agreements along with state worker's compensation laws as part of the status quo that had failed to provide workers sufficient protection. See Legislative History, supra, at 164.
162
LIA cites Supreme Court precedent for the principle that new legislation should not be construed to interfere with existing law, e.g., Administrator v. Robertson, 422 U.S. 255, 265-266 , 95 S.Ct. 2140, 2147 , 45 L.Ed.2d 164 (1975), but the cited cases simply hold that repeals by implication are disfavored. They are thus irrelevant to this case, where no statute is repealed. When an issue related to earnings protection not wholly covered by OSHA regulation arises between labor and management, it will remain a mandatory subject of collective bargaining. Meanwhile we find nothing in the OSH Act or other labor legislation to suggest that Congress could remove from OSHA the power to create a program instrumental to achieving worker safety simply because such a program could otherwise be created through collective bargaining. See Brennan v. Western Union Telegraph Co., 561 F.2d 477, 482-483 (3d Cir. 1977), cert. denied, 434 U.S. 1063 , 98 S.Ct. 1237 , 55 L.Ed.2d 764 (1978). Such an inference would contravene the principle that remedial welfare and labor laws merit liberal construction. Southern Railway Co. v. OSHRC ; 539 F.2d 335 , 338 (4th Cir.), cert. denied, 429 U.S. 999 , 97 S.Ct. 525 , 50 L.Ed.2d 609 (1976). 72
163
5. Reasonableness of MRP. Having concluded that a program of earnings protection for removed workers lies within OSHA's statutory power, we need finally to inquire whether MRP is a reasonable exercise of that power. Like any OSHA program, MRP must pass the statutory tests of judicial review: OSHA must demonstrate substantial evidence to support any conclusions of determinable fact that underlie the program and, where the new provision cannot rely on factual certainty, must carefully explain the bases of its "legislative" decision to create it. Industrial Union Dep't, AFL-CIO v. Hodgson, supra, 499 F.2d at 475-476 . This test essentially reinforces the principle that where a statute empowers an agency to make rules necessary to carry out the provisions of the statute, the court will uphold such a rule if it is " 'reasonably related to the purposes of the enabling legislation.' " Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369 , 93 S.Ct. 1652, 1661 , 36 L.Ed.2d 318 (1973), quoting Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 280-281 , 89 S.Ct. 518, 525 , 21 L.Ed.2d 474 (1969).
164
Here, we have no trouble upholding the agency's decision as reasonable and well grounded in the evidence. OSHA has very precisely articulated the bases for MRP, set forth factual findings where relevant, made all inferences and speculations explicit, and explained why it rejected counter-evidence and proposed alternate programs. See generally 5297 2/3-5297 6/3. 5444 0/1-5447 3/3. We need only review the major points briefly here.
165
OSHA offered two primary bases for MRP. First, the standard's PEL leaves little margin of safety for workers, since even at an air-lead of 50 ug/m 3 as many as 29.3 percent of all exposed workers will at any time have a blood-lead level over 40 ug/100g, the level which OSHA sets as its goal for all workers. 5441 2/2. However, lead disease is highly reversible in its early stages, since a person removed to a low-exposure workplace can excrete accumulated lead. 5297 2/3. OSHA thus concluded that removal was a preventive device crucial to the standard.
166
OSHA found, however, that unless workers were guaranteed all their wage and seniority rights upon removal, they would resist cooperating with the medical surveillance program that determined the need for removal, since they reasonably might fear being fired or sent to lower-paying jobs if they revealed dangerously high blood-lead levels. 5444 2/2-5444 6/2. The record showed that workers often consumed self-prescribed chelating agents, 73 and lied to physicians about their subjective symptoms, all because they held job security more dear than their health. 5444 6/3-5444 7/1 (citing evidence). OSHA also found existing earnings protection programs in private bargaining agreements too few and too limited. 5444 4/2. Moreover, exercising its statutory authority to rely on experience gained under other health and safety laws in fashioning a standard, 29 U.S.C. § 655 (b)(5) (1976), OSHA compiled evidence that even under a congressionally-mandated earnings protection program like the one that is part of the Federal Coal Mine Health and Safety Act, see text and notes at notes 67-68 supra, workers perhaps because they were not guaranteed the seniority rights and pay increases of their high-exposure jobs frequently refused to cooperate in medical review. 5444 7/1-5444 9/1. Finally, OSHA found evidence that seniority rights were often the linchpin of any earnings protection, and that required seniority protection could easily be coordinated with collective bargaining provisions on seniority. 5444 7/1-2.
167
OSHA also supported each particular criterion and term of the removal program with evidence and explanation. For example, it offered both medical testimony and worker health statistics to demonstrate that workers needed removal protection for at least 18 months to allow the reversible phase of lead disease to subside and reduce their blood lead to safe levels. 5446 8/1-5446 9/2. And beyond justifying each element of the final MRP, OSHA soundly explained why it rejected a number of proposed MRP schemes. 5445 0/1-5445 1/3.
168
For example, OSHA rejected the suggestion that it directly force, rather than encourage, workers to participate in medical surveillance, since such force might violate their freedom of religion and right to privacy, and in any event could not prevent workers from hiding symptoms and using chelating agents. OSHA also struck down a proposal that instead of requiring removal with earnings protection, OSHA simply require employers to provide workers information on their blood-lead levels and then let the workers decide whether to remove themselves; OSHA found no evidence that workers, given the choice, would always or even often choose health over job security. And last, OSHA rejected the idea that workers with high blood-lead levels use respirators rather than be removed, pointing to all the evidence it had compiled for other purposes on the inherent flaws of respirator protection.
169
We therefore conclude that MRP is a reasonable exercise of legitimate authority. 74
B. Multiple Physician Review
170
Lacking total trust in both the honesty and the competence of company doctors, OSHA included in its detailed rules on medical surveillance a scheme called the Multiple Physician Review Mechanism. Section 1910.1025(j)(3)(iii). Under this mechanism, whenever the standard calls for a medical examination for a worker, the employer may select, and must pay for, the physician. If the employee for any reason wants a second medical opinion, he can request a second examination by a physician of his own choice, again at the employer's expense. If the first two physicians disagree as to whether the employee exhibits any medical harm from his current lead exposure, the employer and the employee, with the advice of the two physicians they have designated, may designate yet a third physician. The opinion of that third physician, once again obtained at the employer's expense, is binding on the employer unless the employer and employee agree to follow a course of action supported by at least one of the physicians. 75
171
LIA contends that the multiple physician review mechanism exceeds OSHA's statutory mandate because it is designed to bolster employee confidence rather than employee health. LIA also argues that the mechanism violates the implicit limits on required medical examinations to be charged to employers contained in 29 U.S.C. § 655 (b)(7) (1976). That section states that whenever OSHA deems medical examinations necessary and charges them to the employer, the results of such examinations "shall be furnished * * *, at the request of the employee, to his physician." LIA infers from this language that an employer discharges his statutory obligation by paying for any initial examination and then supplying the reports to the employee's personal doctor. Finally, LIA argues that the record provides no substantial evidence to support the factual assumptions underlying the scheme. None of these contentions passes muster.
172
The multiple physician review mechanism furthers OSHA's legitimate goals both directly and indirectly. First, OSHA's concern went beyond the employee-patient's perception of the company doctor. The agency found that though the great majority of company physicians were honest, many of them lacked the medical sophistication to detect the subtle and elusive signs of early lead disease. The multiple review scheme decreases the chances of a single erroneous diagnosis becoming the final medical determination. It thereby directly enhances worker health. Second, any device designed primarily to enhance workers' confidence in the physicians who examine them for lead disease will in turn enhance their health, since an employee who trusts the integrity and skill of the examining physician will more likely cooperate in, and thereby improve the accuracy of, the examination. 76
173
Nor is LIA's construction of 29 U.S.C. § 655 (b)(7) (1976) accurate. That section contains the following key language:
174
In addition, where appropriate, any such standard shall prescribe the type and frequency of medical examinations or other tests which shall be made available, by the employer or at his cost, to employees exposed to such hazards in order to most effectively determine whether the health of such employees is adversely affected by such exposure. * * *
175
This language, so far from limiting OSHA's authority, rather plentifully expands it. The phrase "type and frequency of medical examinations" can certainly include second and third opinions requested by the employee, especially where OSHA finds that such review examinations can "most effectively determine" a threat to worker health. The language directing employers to supply medical reports to employees' physicians simply covers those situations in which only company-appointed doctors examine the employee; it in no way limits company-paid examinations to those conducted by company doctors. This section therefore is a rather broad mandate to OSHA to char

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/390182. Public record. Not legal advice.