Petition — Lead Industries Ass'n v. Donovan

Supreme Court brief1981

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Supreme Court, U.S,

80-1184 . FILED

| JAM? 1981

MICHAEL RODAK, JR., CLERK

IN THE =

Supreme Court of the United States

OCTOBER TERM, 1980

Pee

LEAD INDUSTRIES ASSOCIATION, INC., ef al.,

Petitioners,

—against—

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,

F. RAY MARSHALL, Secretary of Labor, and EULA

BINGHAM, Assistant Secretary of Labor for Occupational

Safety and Health,

Respondents.

Petition for a Writ of Certiorari to the United

States Court of Appeals for the District of Columbia

STANDISH FORDE MEDINA, JR.

Debevoise, Plimpton, Lyons & Gates

299 Park Avenue

New York, New York 10017

(212) 752-6400

Attorney for the Petitioner Lead Industries

Association, Inc. and liaison counsel for

the industry petitioners and intervenors

(Names and addresses of counsel for other

petitioners are listed on the inside cover)

January 7, 1981

WILLIAM F. BoypD, Esq.

P.O. Box 659

Kellogg, Idaho 83837

Attorney for Intervenor

The Bunker Hill Company

JOSEPH C. CARTER, JR., Esq.

DAVID F. PETERS, Esq.

707 East Main Street

Richmond, Virginia 23212

Attorneys for Petitioner

Ethyl Corporation

FRANK M. COATES, JR., Esq.

Post Office Box 2471

Baton Rouge, Louisiana 70821

Attorney for Intervenor

Schuylkill Metals Corp.

HUGH M. FINNERAN, Esq.

One Gateway Center

Pittsburgh, Pa. 15222

Attorney for Petitioner

PPG Industries, Inc.

VINCENT J. FULLER, Esq.

PETER J. KAHN, Esq.

1000 Hill Building

Washington, D.C. 20006

Attorneys for Intervenor

Dixie Metals Company

BRUCE HAMILL, Esq.

1500 Rhode Island Avenue, N.W.

Washington, D.C. 20005

Attorney for Petitioners

National Paint & Coatings

Assoc., Inc., et al.

WILLIAM V. HEARNBURG, Esq.

P.O. Box 1000

Carrollton, Georgia 23212

Attorney for Petitioner

Southwire Company

WILLIAM J. KILBERG, Esq.

STEPHEN E. TALLENT, Esq.

1776 G Street, N.W.

Washington, D.C. 20006

Attorneys for Petitioner

ASARCO Incorporated

ROBERT D. MORAN, Esq.

1828 L Street, N.W.

Washington, D.C. 20036

Attorney for Intervenor

Cast Metals Federation

JEROME POWELL, Esq.

JOHN M. Woop, Esq.

1150 Connecticut Avenue, N.W.

Washington, D.C. 20036

Attorneys for Petitioner

American Iron and Steel

Institute

W. SCOTT RAILTON, Esq.

1150 Connecticut Avenue, N.W.

Washington, D.C. 20036

Attorney for Petitioner

St. Joe Minerals Corp.

EDWIN H. SEEGER, Esq.

1101 Sixteenth Street, N.W.

Washington, D.C. 20036

Attorney for Intervenor

The Bunker Hill Company

ALLAN J. TOPOL, Esq.

888 Sixteenth Street, N.W.

Washington, D.C. 20006

Attorney for Intervenor

The Shipbuilders Council

of America

CARL W. VoGT, Esq.

1150 Connecticut Avenue, N.W.

Washington, D.C. 20006

Attorney for Petitioners

National Paint & Coatings

Assoc., Inc., ef al.

ELROY H. WOLFF, Esq.

1730 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

Attorney for Petitioner

Battery Council International

ROBERT V. ZENER, Esq.

1776 F Street, N.W.

Washington, D.C. 20006

Attorney for Petitioners

Ford Motor Company, ef ai.

Questions Presented

1. What is the scope of OSHA’s statutory authority to

promulgate health and safety regulations?

A. Technological Feasibility. Does OSHA have author-

ity to issue a standard without evidence or a finding that

the technology necessary for compliance exists or can be

developed in the near future (if ever), and to compel entire

industries to abandon their basic production technologies

and to rebuild their plants and factories, from the ground

up?

B. Economic Feasibility. Does OSHA have authority to

adopt a health standard when, by its own admission, the

agency has not computed, estimated or analyzed the cost

of complying with the standard and has not considered

the cumulative cost impact of the standard and other

occupational and environmental regulations?

C. “Reasonably Necessary”. Does OSHA have author-

ity to adopt as “reasonably necessary” a health standard

when the agency has not estimated and cannot estimate

whether the new standard will provide greater health

benefits than the old one; has designed the standard not to

protect workers from “concrete medical disability” but to

prevent subclinical “effects” which occur in the “absence

of illness”; and has not conducted any cost-benefit or

cost-effectiveness analyses?

D. Earnings Protection. Does OSHA have authority to

supersede workmen’s compensation laws by imposing a

requirement for “medical removal protection” that man-

dates the payment of full wages and benefits to all

employees removed from lead exposure, including em-

ployees who are not ill and for whom alternate work

positions are not available?

2. If the Occupational Safety and Health Act is interpreted

to give OSHA authority to promulgate a standard in any of the

circumstances described in Question 1(A) or 1(B), does the Act

unconstitutionally delegate legislative authority to the agency?

3. Did OSHA deny the industry petitioners due process of

law: (a) by adopting a health standard which was maiterially

different from and far more stringent than the proposed

standard and which, because it was issued without adequate

rulemaking notice, deprived petitioners of the opportunity to

provide the agency with data needed for a decision based upon

“substantial evidence”, and (b) by relying upon secret, post-

hearing studies by independent, outside experts?

List of Parties

The names of the petitioners and intervenors who sought

review of the revised permanent standard for occupational

exposure to lead issued by the Occupational Safety and Health

Administration on November 13, 1978, 43 Fed. Reg. 53007-14

(November 14, 1978), are set forth in footnote 1 below.' The

l United Steelworkers of America, AFL-CIO-CLC; International

Union, United Automobile, Aerospace & Agricultural Implement

Workers of America; National Constructors Association; Oil, Chemi-

cal and Atomic Workers International Union; and Cast Metals Federa-

tion (No. 79-1048); American Iron & Steel Institute, Inc.; Bethlehem

Steel Corp.; Jones & Laughlin Steel Corp.; National Steel Corp.;

Republic Steel Corp.; United States Steel Corp.; and The Shipbuilders

Council of America (No. 79-1054); Lead Industries Association, Inc.;

Chloride, Incorporated; Standard Industries; Dixie Metals Co.; Schuyl-

kill Metals Corp.; and Bunker Hill Co. (No. 79-1078); Battery Council

International, Inc. (No. 79-1079); ASARCO Incorporated (No. 79-

1080); Southwire Co. (No. 79-1081); National Paint & Coatings Asso-

ciation, Inc. and Sigma Coatings, Inc. (No. 79-1082); PPG Industries,

Inc. (No. 79-1083); South Central Bell Telephone Co., inc.; Southern

Bell Telephone and Telegraph Co.; Southwestern Bell Telephone Co.;

American Telephone and Telegraph Co.; Bell Telephone Co. of

Nevada; The Bell Telephone Co. of Pennsylvania; The Chesapeake and

Potomac Telephone Co.; The Chesapeake and Potomac Telephone Co.

of Maryland; The Chesapeake and Potomac Telephone Co. of Virgi-

nia; The Chesapeake and Potomac Telephone Co. of West Virginia;

Cincinnati Bell Incorporated; The Diamond State Telephone Co.;

Empire State Subway Co. (Limited); Illinois Bell Telephone Co.;

Indiana Bell Telephone, Inc.; Michigan Bell Telephone Co.; The

iii

respondents are F. Ray Marshall (Secretary of Labor), Eula

Bingham (Assistant Secretary of Labor for Occupational

Safety and Health) and the Occupational Safety & Health

Administration.

Mountain States Telephone and Telegraph Co.; Malheur Home Tele-

phone Co.; The Ohio Bell Telephone Co.; New England Telephone and

Telegraph Co.; New Jersey Bell Telephone Co.; New York Telephone

Co.; Northwestern Bell Telephone Co.; Pacific Northwest Bell Tele-

phone Co.; The Pacific Telephone Co.; The Southern New England

Telephone Co.; Wisconsin Telephone Co.; Bell Telephone Laborato-

ries, Inc.; Transoceanic Communications, Inc.; Transoceanic Cable

Ship Company, Inc.; and Transpacific Communications, Inc. (No. 79-

1084); General Motors Corp. (No. 79-1106); Ford Motor Co. (No. 79-

1107); Chrysler Corp. (No. 79-1108); National Association of Recy-

cling Industries, Inc.; Inland Metals Refining Co.; Keystone Resources

Corp.; and RSR Corp. (No. 79-1111); Ethyl Corp. (Nos. 79-1114 and

-1145); Corning Glass Works (No. 79-1120); St. Joe Minerals Corp.

(No. 79-1121); and RSR Corp. (No. 79-1146).

Table of Contents

Page

i, os sc aeen she hekemenek bie aneenad i

esis 6 ys shbanp hubs chen eves oe CAREER ii

I 5) sc bas Ws § We Cdenene ns aeouakewes Vv

i «6.0 bs occ Chahoan ce beds ou Mhuaes vii

Be ais ae Kan Oilaia a 6 e0rns Gee Mme en ]

26 ask ah nee cee oe ek be ec deakeeaad en 2

EE ina cb évu ied enn veadivcrinekiee sachs 2

SP ec ine netdebesaceveabhendioas 3

Reasons for Granting the Writ....................08. 7

THE DECISION BY THE COURT BELOW IS IN-

CONSISTENT WITH THIS COURT’S DECISIONS

IN THE BENZENE AND WHIRLPOOL CASES

AND WITH NUMEROUS DECISIONS BY OTHER

COURTS OF APPEALS, AND RAISES IMPOR-

TANT ISSUES CONCERNING THE SCOPE OF

OSHA’S STATUTORY AUTHORITY TO AFFECT

THE SURVIVAL OF ENTIRE INDUSTRIES....... 7

A. The panel majority misinterpreted the technologi-

cal feasibility requirement, incorrectly defined and

applied the substantial evidence test, and con-

strued the Act to permit an unconstitutional dele-

gation of legislative authority .................. 10

B. The panel majority misinterpreted the economic

feasibility requirement by permitting the agency to

issue a health standard without computing or ana-

lyzing the cost of the regulation................ 13

| PRECEDING PAGE WAS BLANK

Page

C. The panel majority misinterpreted the “reasonably

necessary requirement by allowing OSHA to

adopt a standard without establishing that the

standard would produce any health benefits and

without conducting any cost-benefit or cost-effec-

CINE SOI iis was deine ks kia bescw seria 16

D. The panel majority ignored the language and legis-

lative history of the Act, and misinterpreted this

Court’s ruling in Whirlpool, in concluding that

OSHA has authority to require employers to pro-

vide full earnings protection and job security to all

workers in the lead industries.................. 19

E. OSHA denied the industry petitioners due process

of law by failing to give them adequate notice of

the rulemaking proceedings and by relying on

secret, post-hearing studies by independent expert

ED Soir i in Gn obrc8 pea be dae eee io 21

(1) Inadequate Rulemaking Notice ............. 21

(2) Ex Parte Expert Evidence..............000. 22

Cs: 6 ids 4 oad 6-5 hRS FREY BIE ew ss bs 0008 04K 24

Appendix

Majority Opinion of the Court Below............ la

Dissenting Opinion of the Court Below........... 247a

Pe PE od ose oa bs kin ccs ove dbecde 287a

Vii

Table of Authorities

Cases Page

AFL-CIO v. Marshall, 617 F.2d 636 (D.C. Cir. 1979),

cert. granted sub nom. American Textile Mfrs. Insti-

tute, Inc. v. Marshall, 101 S.Ct. 68 (1980) ...... 6-8, 13, 19

American Iron & Steel Institute v. OSHA, 577 F.2d 825

(3d Cir. 1978), cert. granted, 100 S.Ct. 3054, cert.

Se: Sc RS ks ok 30's 0 0 cic ba Rode « 12-13

Citizens to Preserve Overton Park, Inc. v. Volpe, 401

i PE Wie eet pees boa) wine aan eek st 13, 24

Home Box Office, Inc. v. FCC, 567 F.2d 9 (D.C. Cir.),

cont. Gented, 434 U.S. B29 CISTT) . ow cccccvcccccccsee 22-23

Industrial Union Dep’t v. American Petroleum Institute,

448 U.S. , 100 S.Ct. 2844 (1980)............. 7-9, 13-18

Lead Industries Association, Inc. v. OSHA, 610 F.2d 70

Es ahs he eRe Cees dee bb Kees sae 24

Marshall v. West Point Pepperell, Inc. , 588 F.2d 979 (Sth

NN ie Las DU a Gk poe ee ReR EWS. CREDO SS ES ESS 13

National Lime Ass’n v. EPA, 627 F.2d 416 (D.C. Cir.

he Mn ok Cie dea aeehs kee anes ees 12-13

National Small Shipments Traffic Conference, Inc. v.

Ps et Pea ee eR. CR, BPFOD cccewedccddevcas 23

RMI Co. v. Secretary of Labor, 594 F.2d 566 (6th Cir.

DEG i tink ceGth we taak eaaehns 6 0st e > bs adeanes 14, 17-18

Society of Plastics Industry, Inc. v. OSHA, 509 F.2d

1301 (2d Cir.), cert. denied, 421 U.S. 992 (1975)..... 12

Synthetic Organic Chemical Mfrs. Assoc. v. Brennan,

506 F.2d 385 (3d Cir. 1974), cert. denied, 423 U.S. 830

ERPOIN CEN C RC dRACRO KAA AAAD OR RSEC OH SOEKKODERSS CRED 21

Texas Independent Ginners Ass’n v. Marshall, 630 F.2d

Sa can cons dededutegas 13, 15, 17, 18-19

Viii

Page

Turner Co. v. Secretary of Labor, 561 F.2d 82 (7th Cir.

aL inch ondeas DM UER Se Rak Reed ne eeenkas o cee 17

United States Lines, Inc. v. FMC, 584 F.2d 519 (D.C.

PRG Eh 6 ceeds n Gh Culver ed.c beer aencéecebaes 23

Vermont Yankee Nuclear Power Corp. v. NRDC, 435

RE fecal cot sh enei paewe oe eeabeweones 10

Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980)...... 9, 19-20

Statutes and Regulations

Administrative Procedure Act, 5 U.S.C. § 553(b)...... 21

Sauces Cage, Ze U.5.C. § 125409) 2... ccc cnccccccess 2

Occupational Safety & Health Act of 1970, 29 U.S.C.

hi er ea peach paveaonedehws passim

EPA National Ambient Quality Standard for Lead, 43

Fed. Reg. 46246-63 (Oct. 5, 1978). ..........ccceees 14

ro pea Meg 8 ee re 3

ee es IEE bv ci nedcccvesccccoceses 6

Io cas Wag cakes 0 deeces banvas 3

Es ee EEE os 6s cab e cub Ween bade haodadee 4

Miscellaneous

Address by Assistant Secretary Bingham to ABA Insti-

tute on Law, Science and Technology in Health Risk

Regulation (April 20, 1979), reported at 1979 BNA

OSHA Rptr. 1690 (April 26, 1979) ................. 7-8

American Metal Market (Oct. 13, 1978) .............. 14

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

Docket No.

LEAD INDUSTRIES ASSOCIATION, INC., et al.,

Petitioners,

—against—

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,

F. RAY MARSHALL, Secretary of Labor, and EULA

BINGHAM, Assistant Secretary of Labor for Occupational

Safety and Health,

Respondents.

Petition for a Writ of Certiorari to the United

States Court of Appeals for the District of Columbia

Opinions Below

The opinions of the Court of Appeals are unofficially re-

ported at 8 O.S.H.C. 1810 (August 28, 1980) and appear in the

Appendix to this petition (pages la to 286a, infra).? The

standard for occupational exposure to lead (the “Standard”),

which was issued by OSHA on November 13, 1978, is found at

The majority decision was written by Chief Judge Wright, with

Judge Robinson concurring, and is cited to the Appendix in this

petition as “Maj. Op. at ___”; the dissent was written by Judge

MacKinnon and is cited “Diss. Op. at ___”. All emphasis has been

added throughout this petition unless otherwise indicated.

43 Fed. Reg. 53007-14 (Nov. 14, 1978), as corrected in 44 Fed.

Reg. 5446-48 (Jan. 26, 1979) and 44 Fed. Reg. 20680-81 (Apr.

6, 1979); OSHA’s preamble and explanatory text appear in

volume 43 of the Federal Register at pages 52952-53007 (Nov.

14, 1978) and pages 54354-509 (Nov. 21, 1978), and are cited in

this petition by Federal Register page and column (e.g. 52952/

1).

Jurisdiction

The judgment of the Court of Appeals was entered on

August 15, 1980. Timely petitions for rehearing were filed by

the National Association of Recycling Industries, Inc.

(“NARI”), on August 29, 1980, and, as permitted by the lower

court, by the Lead Industries Association, Inc. (“LIA”), and

others on September 25, 1980. On October 16, 1980, industry

petitioners moved for a stay of the Standard until 30 days after

the final determination of the rehearing petitions, advising the

Court of Appeals that “the industry petitioners in this action

intend to seek review by the Supreme Court in the event that

their Rehearing Petition is denied.” By orders dated October

24, 1980, the lower court denied the pending motions, includ-

ing industries’ petitions for rehearing and their stay applica-

tion, and directed that the mandate become effective forthwith.

Subsequent applications to this Court by NARI, the American

Iron and Steel Institute, LIA and others for a stay of the

Standard were granted on December 8, 1980 with respect to

provisions relating to engineering and work practice controls,

compliance plans, new hygiene facilities, ZPP tests, multiple

physician review procedures, signs and certain start-up dates.

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

Statute Involved

The statutory provisions involved in this case are Sections

3(8), 4(b)(4), 6(b)(5), 6(b)(7) and 6(f) of the Occupational

Safety and Health Act (the “Act” or the “OSHA Act”), 29

U.S.C. §§ 652(8), 653(b)(4), 655(b)(5), 655(b)(7) and 655(f).

The relevant text of these provisions is set forth at pages 287a

through 290a of the Appendix hereto. Procedural regulations

issued by OSHA are found in 29 C.F.R. Part 1911.

Statement of the Case

For centuries lead has been a “crucial” element in “the

manufacture of a vast number of essential products.” Maj. Op.

at 8a. Industries as diverse as battery manufacturers, steel

companies, automobile manufacturers, telecommunication

firms, electronics companies, pigment manufacturers, the en-

tire defense industry, and others consume annually more than

one million tons of lead, most of which is produced by the

nation’s primary and secondary lead smelting industries.

OSHA has regulated workplace air-lead levels since 1971,

when it adopted the national consensus standard of 200 ug/m’

(micrograms of lead per cubic meter of air) as the permissible

exposure limit (“PEL”). 29 C.F.R. § 1910.1000, Table Z-2. At

that time, it was generally accepted that worker blood-lead

concentrations should be maintained below 80 ug/100g (micro-

grams per 100 grams of whole blood) (52952/3; Exhibit 294B,

at 179), and even now OSHA acknowledges that lead-asso-

ciated illness seldom occurs except at higher blood-lead concen-

trations (54471/1). Unlike most of the other substances for

which OSHA has issued new health standards, lead is not a

carcinogen.

On October 3, 1975, OSHA published a proposed regulation

that would have reduced the permissible exposure limit by half,

from 200 ug/m’ to 100 ug/m’. The proposal also contained

detailed requirements concerning environmental monitoring,

medical surveillance, respirator use, employee training, house-

keeping and record maintenance.

OSHA conducted hearings in March, April and May 1977

concerning the proposed exposure limit of 100 ug/m’. The

agency reopened the record in September 1977 for the limited

purpose of receiving comments concerning a supplemental

proposal for “medical removal protection” (“MRP”). Under

the supplemental proposal, an employer would be required to

remove workers from lead-exposed jobs in certain circum-

stances, in the absence of any risk of death or serious injury,

and would also be required to pay them their usual wages and

maintain their seniority as if they were still working. Hearings

were held on medical removal protection during November and

December 1977.

Among the several independent, expert witnesses who had

presented evidence at OSHA's request during the hearing con-

cerning the feasibility of the 100 ug/m’ exposure limit and

MRP were David J. Burton and Nicholas Ashford.’ After the

hearings had been concluded, OSHA—without notifying the

parties—retained both experts to prepare ex parte post-hearing

reports which responded to criticism of their earlier testimony

and which for the first time provided data and expert commen-

tary to the agency on a mew issue—the feasibility of a PEL of

50 ug/m’.*

On November 13, 1978, OSHA adopted a regulation estab-

lishing an exposure level of 50 ug/m’ and imposing a full MRP

requirement. Because the subject of the evidence submitted in

the record had been the proposed air-lead exposure limit of 100

ug/m’ (see Maj. Op. at 169a), and there is thus virtually no

3 Both Burton (of D.B. Associates, Inc.) and Ashford (of MIT’s

Center for Policy Alternatives) were retained by OSHA because, as the

agency admitted, “OSHA . . . does not have the in-house capability”

or the “in-house expertise” to conduct the necessary reviews and

analyses. Wrenn Aff. ¢ 10; see Maj. Op. at 36a. Burton alone was paid

more than $243,000 for his work (ALD 20).

4 See Maj. Op. at 38a-39a; Diss. Op. at 247a-48a. As the majority

acknowledges (Maj. Op. at 45a, 42a), “the post-hearing contract with

[Burton] was OSHA's first attempt to obtain expert advice directly

addressing the feasibility of the 50 ug/m’ standard.” Although Burton

and Ashford had been cross-examined during the hearing (as required

by OSHA’s own rules, 29 C.F.R. § 1911.15(6)(2)), their post-hearing

studies were not included in the record; nor were they made available

to the public for review and comment.

evidence in the record on the subject, OSHA was unable to

point to any technology that would enable the major lead

industries to meet the 50 ug/m’ PEL. Indeed, OSHA recog-

nized that even to attempt compliance with the new exposure

ievel would compel the major lead industries to rebuild their

plants and factories, from the ground up, to accommodate

completely new and “highly speculative” technology (e.g.,

52978-79, 52981-82, 52979/3; Maj. Op. at 145a),° and the

agency therefore gave those incustries five to ten years within

which to attempt compliance with the final PEL of 50 ug/m’

(53008/1). Because of the speculative nature of the hoped-for

technology, and because the only studies in the record related

to the cost of the proposed PEL of 100 ug/m’, OSHA, by its

own admission, did not and could not estimate the cost of

attempting to comply with the final PEL of 50 ug/m? (54496/3,

52981/3).

The medical removal protection provision in the Standard

requires that workers whose blood-lead levels exceed a speci-

ied level (currently 70 ug/100g, to be phased down to 50 ug/

00g by 1983) must be removed from exposure and may not be

returned until their blood-lead levels have been reduced.* Re-

5 For example, OSHA stated that the primary lead smelting industry

“may need to rebuild in part or in whole” over a ten-year period “to

achieve a healthful workplace . . . . Attainment of the PEL may

require the development and implementation of substantial technologi-

cal change, possibly including alternatives to pyrometallurgy which are

now in the experimental stage” (52978-79, 52981-82, 54480). OSHA

further acknowledged that each secondary smelter will “require con-

struction of an entirely new smelting plant” (52979/3, -/2); the battery

industry will require “significant modifications . . . in the production

process” (52984/1); nonferrous foundries will “require some further

{but undefined] development and refinement” in their technology

(52985/1); and pigment manufacturers will either “require extensive

modification of the[ir] present production processes” and plants or will

have to give up lead altogether and use “other [unidentified] materials”

(ibid.).

6 It is important to keep in mind that the present removal level of 70

ug/100g is not indicative of sickness or physical disability. As OSHA

acknowledges, even workers with blood-lead levels in excess of the

initial MRP removal “trigger” of 80 ug/100g—the generally acceyted

biological guideline at the time these proceedings commenced—will

“.

moval can also be effected on the basis of a doctor’s deter-

mination. In order to encourage workers to participate in the

biological monitoring and medical surveillance programs

(54441/2), employers must maintain the earnings (including

overtime) and seniority of workers removed from lead-exposed

jobs as if the workers had not been removed. Employers must

provide such earnings protection even when the worker is not

ill or disabled (54471/1), even when the worker’s elevated

blood-lead level is not the employer’s fault and is not occupa-

tionally related (54472/3, 54473/1), and even when the em-

ployer has no position available to which the removed worker

can be productively transferred (54467/3). The MRP require-

ment, the cost of which OSHA never computed, is thus

markedly beyond the provision in the cotton dust standard now

before the Court in American Textile Mfrs. Institute, Inc. v.

Marshall, Docket Nos. 79-1429, -1583 (the “Cotton Dust

Case”).’

The Standard as issued was scheduled to become effective on

February 1, 1979. The effective date was administratively

stayed on January 25, 1979 by OSHA, 44 Fed. Reg. 5446

(January 26, 1979), and was partially stayed by the Court of

Appeals on March 1, 1979 pending judicial review pursuant to

29 U.S.C. § 655(f). By a split decision, the Court of Appeals

affirmed the Standard on August 15, 1980 as to the major lead

industries, and remanded to OSHA for further consideration

seldom have any “concrete medical disability or impairment involving

symptoms of disease” (54471/1). Indeed, OSHA and the lower court

have acknowledged that the new Standard was designed not to protect

workers from actual disease or illness but to prevent subclinical

biological “effects” which occur in the “absence of illness” (52964/1,

54413/2; see Maj. Op. at 115a-16a, 128a).

7 The limited medical removal protection provision at issue in the

Cotton Dust Case is not related to an employer’s medical program and

applies only to employees who are unable to wear respirators and for

whom “another position . . . is available”. See 29 C.F.R. § 1910.1043

(f)(2)(v). Thus, as the majority panei in the case at bar recognized, the

MRP provision in the lead Standard is very different from the one in

the Cotton Dust Case and is “relatively without precedent”. See Maj.

Op. at 12a, 22a n.15, and 66a n.63.

with respect to certain other industries (the “remand indus-

tries”). Although the lower court correctly concluded that

OSHA had failed to establish that the Standard was feasible

for the remand industries, it nevertheless ordered those indus-

tries to comply with virtually all of the Standard duri:.z the

remand.

Reasons for Granting the Writ

THE DECISION BY THE COURT BELOW IS INCON-

SISTENT WITH THIS COURT’S DECISIONS IN THE

BENZENE AND WHIRLPOOL CASES AND WITH

NUMEROUS DECISIONS BY OTHER COURTS

OF APPEALS, AND RAISES IMPORTANT ISSUES

CONCERNING THE SCOPE OF OSHA’S STATUTORY

AUTHORITY TO AFFECT THE SURVIVAL OF

ENTIRE INDUSTRIES.

The clarification of OSHA’s standard-setting powers which

began with Industrial Union Dep’t v. American Petroleum

Institute, 448 U.S. ___., 100 S.Ct. 2844 (1980) (the “Benzene

Case”), and is continuing with the Cotton Dust Case, is of

critical importance. Because OSHA’s standards have a pro-

found impact on the national economy and often jeopardize

the very survival of entire industries, it is imperative that the

limitations on the agency’s authority be defined with precision

and enforced with consistency. Unless this petition is granted,

however, conflicting circuit court decisions will continue to

create confusion and uncertainty concerning important issues

that were not presented by the Benzene Case and will not be

resolved by the Cotton Dust Case.‘

8 — The problems created by the new lead Standard result largely from

OSHA’s continued insistence upon attempting to eliminate all risk to

worker health, however insubstantial and unproven the risk and how-

ever infeasible the required technology. Indeed, as OSHA director Eula

Bingham has bluntly asserted, the agency believes that it is not

“prohibited from doing just about anything we want to do.” Address

by Assistant Secretary Bingham to ABA Institute on Law, Science and

In contrast to the Cotton Dust Case, where the technological

feasibility of OSHA’s standard is not at issue, the present case

raises the question whether OSHA may adopt a standard which

compels major industries to rebuild their plants and completely

change their production processes in order to pursue OSHA’s

extreme policies.’ This case also raises the companion question

whether, if OSHA has such authority, it may satisfy the

feasibility requirement, without the benefit of any formal,

technical study of the exposure limit ultimately adopted and

without finding that there is technology available capable of

achieving that exposure level. OSHA has here merely created

an ipse dixit “presumption” that in five to ten years all affected

industries will be able to develop technologies capable of

meeting thy Standard in some of their operations. The decision

of the court below upholding OSHA on these issues is not only

in conflict with this Court’s ruling in the Benzene Case and

with decisions of the Courts of Appeals for the Second, Third

and Fifth Circuits, but also so frees the agency from any of the

statutory limitations on its standard-setting powers as to create

an unconstitutional delegation of legislative power.

This case also significantly extends the latitude improperly

afforded OSHA by the Court of Appeals in the Cotton Dust

Case in connection with the issue of economic feasibility. In the

Cotton Dust Case, OSHA at least purported (however inaccu-

Technology in Health Risk Regulation (April 20, 1979), reported at

1979 BNA OSHA Rptr. 1690 (April 26, 1979).

9 Were the lower court’s interpretation of OSHA’s authority over

production processes to be upheld, OSHA for all practical purposes

would have the power to dictate what goods and materials could be

produced in this country and what industries would be permitted to

survive. Indeed, in the case at bar, OSHA’s own expert consultants

concluded that enforcement of even the proposed PEL of 100 ug/m’

would jeopardize the continued existence of two of the nation’s four

primary lead smelters, eliminate 17-19 of approximately 50 secondary

smelters, and force more than 100 battery companies (out of 143 firms)

out of business. See Ex. 26, at 1-2; Ex. 234[24], at 2; 52984/2; Maj.

Op. at 193a, 204a.

rately) to make findings concerning the cost impact of the new

regulation. In the present case, by comparison, OSHA con-

ceded that it had not estimated the cost of meeting the final

exposure level of 50 ug/m’, largely because of the “highly

speculative” nature of the technology that would have to be

developed even to attempt compliance. Here again, the deci-

sion by the court below—allowing OSHA to promulgate the

Standard without determining or analyzing the cost of meeting

the 50 ug/m’ PEL and without computing the cost of the MRP

requirement—conflicts with decisions by other courts of ap-

peals. Moreover, the decision by the lower court, permitting

OSHA to impose upon employers an obligation to continue

paying full salary to workers who are removed from lead

exposure under the Standard’s inflexible requirements, is con-

trary to this Court’s decision in Whirlpool v. Marshall, 445

U.S. 1 (1980), and directly contravenes Section 4(b)(4) of the

Act, 29 U.S.C. § 653(b)(4).

Quite apart from the question of feasibility, the decision by

the lower court is contrary to this Court’s decision in the

Benzene Case, and to decisions by other courts of appeals,

insofar es it holds that the Standard was “reasonably neces-

sary”. Here, for example, (a) OSHA conceded that it could not

meaningfully estimate the health benefits, if any, that would

result from the reduced air-lead exposure limit (54427/1), (b)

the lower court acknowledged that there was no evidence

concerning “the actual incidence of significant health effects at

the old and new” exposure limits (Maj. Op. at 110a), and (c)

the lead Standard was designed, not to prevent significant risks

to health, but merely to protect workers from biological “ef-

fects” which, as OSHA recognized, occur in the “absence of

illness” (52964/1, 54413/2; Maj. Op. at 115-16, 128). Nor did

OSHA conduct either a cost-benefit or a cost-effectiveness

analysis.

In addition to these important questions about the OSHA

Act, this case presents pervasive procedural issues concerning

the obligation of OSHA and other administrative agencies to

give interested persons adequate notice of, and an opportunity

>».

to comment on, proposed regulations and the evidence submit-

ted in support of those regulations.

As noted earlier, OSHA issued a rulemaking notice and held

extensive hearings concerning a proposed air-lead PEL of 100

ug/m? but then, after obtaining secret, post-hearing evidence

from independent experts, adopted a materially different and

far more stringent 50 ug/m? exposure limit. In doing so, OSHA

turned applicable procedural requirements concerning cross-

examination and rulemaking notice into a charade, denied

interested persons due process, and made it impossible for the

agency to obtain the data necessary to meet the “substantial

evidence” and “best available evidetice” requirements. The

lower court’s decision sanctioning OSHA’s actions misin-

terprets Vermont Yankee Nuclear Corp. v. NRDC, 435 U.S.

519 (1978), and totally frustrates meaningful review of adminis-

trative regulations.

A. The panel majority misinterpreted the technological feasi-

bility requirement, incorrectly defined and applied the

substantial evidence test, and construed the Act to permit

an unconstitutional delegation of legislative authority.

This Court has never considered whether Congress gave

OSHA power to adopt a standard when the technology capable

of achieving that standard does not exist and will not be

available soon (if ever) to the industries affected. Nor has the

Court had occasion to consider whether OSHA has the author-

ity to adopt a standard that forces an industry to abandon or

rebuild its existing plants in order to develop and implement

entirely new production processes which may never be effec-

tive. It is essential that the Court consider these issues to ensure

that the feasibility requirement remains a viable part of the

Act, as intended by Congress.

If permitted to stand, the majority decision would relieve

OSHA of any obligation to determine that technology capable

of meeting a standard is or soon will be available. The view of

the panel majority is that, “[sJince . . . the agency will [be

allowed to] make highly speculative projections about future

technology, . . . [the courts] cannot require OSHA to prove

with any certainty that industry will be able to develop the

necessary technology, or even to identify the single technologi-

cal means by which it expects industry to meet the PEL.” Maj.

Op. at 145a. Instead, all that is required, the majority con-

cludes, is for someone to “conceive” some “industrial strate-

gies” or “embryonic schemes for compliance” involving

“highly speculative” technology that industry must somehow

implement over a five- or ten-year period (e.g., Maj. Op. at

145a, 172a).

The majority’s interpretation of the Act not only eliminates

the requirement that standards must be technologically feasible

but also enables OSHA to avoid any meaningful review under

the “substantial evidence” test in Section 6(b)(5), 29 U.S.C.

§ 655(b)(5). Indeed, the lower court upheld the Standard de-

spite OSHA’s admission that “virtually all of . . . [the] evi-

dence” presented at the hearings “went to the feasibility of

. . . [the proposed exposure limit of] 100 ug/m’,” not the final

PEL of 50 ug/m’. OSHA Ct. App. Stay Br. at 6; see Diss. Op.

at 248a, 25Sa.

A court, the majority posits, need only “find substantial

evidence to justify [the] presumption” that there is a “reason-

able possibility” that at some point in the future a “typical

firm” will be technologically able to comply with the Standard

in “most” of its operations. Maj. Op. at 154a, 159a.'® On the

10 The majority attempted to justify this reduction of OSHA’s burden

of proof by noting the availability of temporary variance proceedings

and enforcement proceedings in which a company could contend that

subsequent events have proven the Standard infeasible. Maj. Op. at

16la-63a. The lower court’s approach simply ignores the structure of

the Act, which requires OSHA to establish the feasibility of a standard

before imposing upon individual companies the burden of proving that

the standard cannot be met. Common sense dictates the same result,

since obviously it would be absurd to compel industries to waste

enormous sums vainly attempting to comply with a standard for which

the necessary technology admittedly does not exist and cannot soon, if

ever, be developed. Indeed, in the analogous context of a challenge to

basis of this legally untenable premise, the majority found—

not surprisingly—that the substantial evidence test had been

satisfied by evidence which “give[s] some credence to OSHA’s

prediction that the PEL might be met.” Maj. Op. at 177a.

Indeed, with respect to the primary and secondary smelting

industries generally, the majority upheld the Standard even

though OSHA only “managed to cite some record evidence

promising technological developments that might meet the PEL

in the long range.” Jd. at 206a.

These interpretations by the lower court of the technological

feasibility requirement and of a court’s role in reviewing agency

‘findings of feasibility are unjustifiable for at least three rea-

sons.

First, they conflict with prior decisions of other circuit courts

of appeals interpreting the technological feasibility require-

ment. Those decisions have permitted OSHA to “force” an

industry to upgrade its technology only when OSHA has

found, on the basis of substantial evidence, either (i) that

technology exists (not might exist) which is readily adaptable to

the industry in question, or (ii) that the necessary technological

improvements “loom on today’s horizon” and involve chang-

ing existing “processes” or “devices”, not rebuilding all plants

or developing completely new and untested technologies for

entire industries a decade hence. See, e.g., Society of Plastics

Industry, Inc. v. OSHA, 509 F.2d 1301, 1309-10 (2d Cir.), cert.

denied, 421 U.S. 992 (1975); American Iron & Steel Institute v.

an EPA air pollution standard, the Court of Appeals properly rejected

such a shift of the burden of proof and held that “the flexibility

appropriate to enforcement will not render ‘achievable’ a standard

which cannot be achieved on a regular basis . . . .” National Lime

Ass’n v. EPA, 627 F.2d 416, 431 n.46 (D.C. Cir. 1980).

Equally without merit is the majority’s conclusion that an OSHA

health standard can be technologically feasible if it is feasible “in most

. . Operations.” Maj. Op. at 159a. Such an interpretation of OSHA's

rulemaking authority would permit the agency to disregard totally the

requirements of the Act with respect to precisely those hard-to-control

operations that may create the health hazards which are the subject of

the Act.

OSHA, 577 F.2d 825, 833-34 (3d Cir. 1978), cert. granted, 100

S.Ct. 3054, cert. dismissed, 101 S.Ct. 38 (1980); Marshall v.

West Point Pepperell, Inc., 588 F.2d 979 (Sth Cir. 1979).

Second, the interpretations are contrary to this Court’s

statement in the Benzene Case, 100 S.Ct. at 2869, that the

agency must meet the burden of producing sufficient evidence

to show that “it is at least more likely than not” that the

statutory standard was satisfied. See also Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971); Na-

tional Lime Ass’n v. EPA, 627 F.2d 416, 430, 451 n.126 (D.C.

Cir. 1980); Texas Independent Ginners Ass’n v. Marshall, 630

F.2d 398, 409 (5th Cir. 1980). The majority’s reliance upon

hopeful “presumptions” does not satisfy these requirements.

Compare Maj. Op. at 14Sa.

Finally, the majority’s interpretations have the effect of

expanding OSHA’s authority beyond the constraints carefully

imposed by Congress in its choice of statutory language, raising

the spectre of an unconstitutional exercise of discretion without

the safeguard of appropriate review. The Act limits OSHA’s

power to the realm of technological feasibility; the lower

court’s decision expands that power to the world of speculation

where “presumption” replaces evidentiary fact. See the Ben-

zene Case, 100 S.Ct. at 2866.

B. The panel majority misinterpreted the economic feasibility

requirement by permitting the agency to issue a health

standard without computing or analyzing the cost of the

regulation.

As is true with respect to technological feasibility, this case

presents important issues concerning OSHA's obligation to

estimate the economic impact of a standard, issues that have

not previously been considered by the Court and are not raised

in the Cotton Dust Case. Thus, the majority of the Court of

Appeals panel found that OSHA had demonstrated economic

feasibility despite the conceded absence of any evidence what-

soever with respect to the economic feasibility of the 50 ug/m’

exposure limit. /t is undisputed that the agency never computed

or even estimated the cost of complying with the final PEL.''

Maj. Op. at 169a-70a; Diss. Op. at 255a, 271a. Nor did OSHA

estimate the cumulative impact from the combined costs of the

Standard and other government regulations, at least one of

which—EPA’s new National Ambient Quality Standard for

Lead (43 Fed. Reg. 46246-63 (Oct. 5, 1978))—by itself jeopard-

izes the economic viability of the major lead industries.'?

It is impossible to square OSHA's failure to estimate com-

pliance costs with the statutory requirement that standards

‘must be feasible, and the decision of the Court of Appeals

upholding the Standard is in conflict with decisions of other

circuits requiring that such estimates be made. See, e.g., RMI

Co. v. Secretary of Labor, 594 F.2d 566 (6th Cir. 1979);

American Petroleum Institute v. OSHA, 581 F.2d 493, 502-03

(Sth Cir. 1978), aff’d on other grounds sub nom. Industrial

Union Dep’t v. American Petroleum Institute, 448 U.S. ___.,

100 S.Ct. 2844 (1980).

Nor does the decision of the Court of Appeals come to grips

with the statutory requirement that OSHA’s decisions be sup-

ported by “substantial evidence” and “the best available evi-

11 OSHA concedes that it did “not undertake a formal analysis of cost

of compliance” (54496/3), did not prepare “cost estimates” for the

Standard (OSHA Ct. App. Br. at 222), and did not have sufficient data

to derive a “meaningful quantification of cost” (52981/3). Signifi-

cantly, neither OSHA nor the lower court was ever able even to

estimate the dollar cost of compliance with the PEL of 50 ug/m’ or the

MRP provision. What little discussion there is in OSHA’s explanatory

preamble and the majority opinion about OSHA’s “estimates” invari-

ably involves the agency's unsupported conclusions concerning the cost

of meeting the proposed PEL of 100 ug/m3, not the 50 ug/m3 PEL

actually adopted. See, e.g., Maj. Op. at 166a-68a.

12 See, e.g., American Metal Market (Oct. 13, 1978)(senior EPA econo-

mist acknowledges that the new EPA standard may “virtually wipe out

the domestic secondary lead industry”).

dence.” On the contrary, the lower court sidesteps the eviden-

tiary gap in the record by reading the “best available evidence”

rule in Section 6(b)(5) of the Act, 29 U.S.C. § 655(b)(5), to

refer solely to the evidence that happened to be “available” in

the record, whatever that evidence might be—good, bad or

non-existent. See, e.g., Maj. Op. at 147a-48a, 170a n.133. But

none of the opinions in the Benzene Case even remotely

suggests that the “best available evidence” rule permits OSHA

to relieve itself of its burden to establish feasibility simply by

gathering evidence on one proposed standard and then pro-

mulgating another standard for which it finds, not surprisingly,

that the record contains no “available” evidence. See, e.g.,

Justice Powell’s concurrence at 100 S.Ct. 2876 (“the statutory

preference for the ‘best available evidence’ . . . implies that

OSHA must use the best known techniques for . . . accurate

estimation . . . when such techniques are available”). To hold

that the “best available evidence” rule excuses such an abdica-

tion of responsibility is, as the dissent states, “patently irre-

sponsible” and “ludicrous”. Diss. Op. at 273a. See also Texas

Independent Ginners Ass’n v. Marshall, supra, 630 F.2d at 413

n.48 (OSHA must “consider. . . evidence that [is] available

and... perform .. . research and experiments that [are]

practicable”).

The panel majority also relied on the “speculative nature of

the technology” that industry must develop as an excuse for

OSHA’s failure to estimate the costs of compliance. Maj. Op.

at 179a, 170a. With this approach, the weaker the proof of

technological feasibility and the more impossible the task of

compliance, the less demanding is OSHA’s burden of proof on

economic feasibility. Carried to its logical conclusion, the

majority’s reasoning would allow OSHA to forego any attempt

to demonstrate economic feasibility if OSHA merely hints that

someone may some day invent the technology necessary to

meet a proposed standard.

C. The panel majority misinterpreted the “reasonably neces-

sary” requirement by allowing OSHA to adopt a standard

without establishing that the standard would produce any

health benefits and without conducting any cost-benefit or

cost-effectiveness analyses.

Misinterpreting this Court’s rulings in the Benzene Case, the

Court of Appeals upheld the lead Standard despite OSHA’s

concession that the agency had not determined, and could not

“meaningfully” evaluate, what health benefits, if any, would

result from the new regulation. Without such an evaluation, it

was impossible for OSHA to establish that the Standard is

“reasonably necessary . . . to remedy a significant risk of

material health impairment,” as required by the Benzene Case.

100 S.Ct. at 2863.'> The agency acknowledged that,

“. , , the available data does not allow meaningful quan-

titative estimation of the degree of prevention of the

different forms of health damage likely to be achieved by

lowering worker air exposures and blood lead levels by

various amounts for various periods of time.” (54427/1)

Translated into plain English, OSHA was saying, “We are

unable to estimate the health benefits, if any, that would be

achieved by reducing the air-lead exposure limit to the level set

in the new Standard.” '* Indeed, the majority below acknowl-

13 The panel majority candidly admits that for some industries there is

little or no record evidence that workers are actually exposed to lead,

and acknowledges that exposure in other industries is intermittent.

Maj. Op. at 215a,. 225a-26a, 227a. If this Court’s decision in the

Benzene Case is to have any meaning, “significant risk” cannot exist

where exposure is intermittent, minimal or non-existent. Furthermore,

no threshold finding about “significant risk” can have been made for

the several industries which were “never even mentioned in the Pream-

ble” (Maj. Op. at 224a n.162) but which are nonetheless subjected to

most aspects of the Standard.

14 Although OSHA did purport to analyze “the likely distribution of

blood-lead levels among workers” at various air-lead levels (Maj. Op.

at 111)(emphasis in original), its statement that it did not evaluate

“health damage” at the different PEL’s was a candid admission that

those distributions could not be translated into meaningful health data

for purposes of the findings required by the Benzene Case.

edges that there is no evidence of “the actual incidence of

significant health effects at the old and new PEL’s.” Maj. Op.

at 110a. Even if OSHA had attempted to evaluate “the dif-

ferent forms of health damage likely to be achieved by lower-

ing” the permissible air-lead level, the agency’s own statements

confirm that OSHA adopted the exposure limit of 50 ug/m’

not to protect workers against “a significant risk of material

health impairment” but to prevent biological “effects” which

occur in the “absence of illness” (52964/1, 54413/2). See Maj.

Op. at 115-16 (“here .. . . OSHA is acting to prevent, not overt

early symptoms of a disease, but subclinical effects”); id. at 128

(OSHA's “blood-lead level goal . . . ultimately rests on its

theory of subclinical effects”).

The majority decision is.also in direct conflict with decisions

of the Courts of Appeals for the Fifth, Sixth and Seventh

Circuits, holding that OSHA must “determine whether the

benefits expected from a standard bear a reasonable relation-

ship to the costs imposed by the standard.” Texas Independent

Ginners Ass’n v. Marshall, supra, 630 F.2d at 411; American

Petroleum Institute v. OSHA, supra, 581 F.2d at 503; RMI Co.

v. Secretary of Labor, 594 F.2d 566 (6th Cir. 1979); Turner Co.

v. Secretary of Labor, 561 F.2d 82 (7th Cir. 1977). The agency,

of course, made no such determination in this case. OSHA also

rejected out of hand, without any cost-effectiveness analysis,

an industry-suggested approach—one which many of OSHA’s

own witnesses supported—based on a biological compliance

mechanism. In addition, despite its admission that respirators,

properly used and maintained, protect workers (e.g., 54457/1)

and will be required in many operations regardless of techno-

logical improvements (e.g., 54482/2, 54483/3, 54484/3),

OSHA did not conduct any cost-effectiveness analysis to com-

pare the costs of, and benefits from, using respirators as

opposed to more expensive and frequently wasteful ap-

proaches.

OSHA’s statutory obligation to conduct cost-benefit and

cost-effectiveness and to determine that a standard is

“reasonably necessary remedy “significant risk[s] of mate-

rial health impairment”, not involve a callous disregard

for workers’ health. Rather, it is an obligation that is inherent

in OSHA’s basic charter to protect workers’ health, since every

dollar wasted on infeasible engineering controls is a dollar that

is unavailable to accomplish actual benefits through more

efficient alternatives. The Act thus simply reflects a recognition

by Congress that capital resources are finite and must be

allocated in a rational way. See RMI Co. v. Secretary of Labor,

supra, 594 F.2d at 573. As Mr. Justice Powell explained in his

concurrence in the Benzene Case, the comparison of costs and

benefits is required because,

“OSHA's reading of § 6(b)(5) could force the depletion of

an industry’s resources in an effort to reduce a single risk

by some speculative amount, even though other signifi-

cant risks remain unregulated.” 100 S.Ct. at 2878 n.7.

“The cost of complying with a standard may be ‘bearable’

and still not be reasonably related to the benefits ex-

pected. A manufacturing company, for example, may

have financial resources that enable it to pay the OSHA-

ordered costs. But expenditures for unproductive pur-

poses may limit seriously its financial ability to remain

competitive and provide jobs.” Jd. at 2877 n.4.

However liberally the “substantial evidence” and “best avail-

able evidence” tests are read, one thing is certain: as the

expected cost or potential impact of particular OSHA require-

ments increases, there is a corresponding need for OSHA to act

on the basis of fact, rather than compounded assumptions. But

unless OSHA is required to conduct cost-benefit and cost-

effectiveness analyses to balance known facts against specula-

tion, risks against gains, and to articulate fully why a particular

approach is reasonably necessary in relation to others, a re-

viewing court has no basis on which to determine whether the

agency’s action has been arbitrary or unreasonable. See, e.g.,

Texas Independent Ginners Ass’n v. Marshall, supra, 630 F.2d

at 412 (“OSHA’s refusal here to estimate the expected benefits

of its... regulations . . . requires the conclusion that the

agency has not shown these regulations to be reasonably

necessary on the basis of substantial evidence”).

The need for cost-benefit and cost-effectiveness analyses

becomes all the more pressing when, as here, OSHA would

compel major industries to rebuild their plants completely to

accommodate speculative technologies (e.g., 52978-79, 52981-

82, 54480, 52979/3), technologies that may never be developed

or accomplish the desired end. Moreover, even were these

speculative technologies successful, OSHA acknowledges that

employers will still have to use respirators in many hard-to-

control operations in order to protect workers’ health (54482/

2, 54483/3, 54484/1, 54484/3, 54488/3, 54490/2-3).

D. The panel majority ignored the language and legislative

history of the Act, and misinterpreted this Court’s ruling

in Whirlpool, in concluding that OSHA has authority to

require employers to provide full earnings protection and

job security to all workers in the lead industries.

OSHA has no statutory authority to require employers to

adopt a medical removal protection program that would re-

quire full earnings to be paid to all workers removed from

exposure for “safety” reasons, including workers who are not

ill or incapacitated and for whom alternate positions are not

available.'* That, however, is what OSHA has done.

OSHA’s authority under the Act to adopt regulations dealing

with “working conditions” and safe or healthful “places of

employment” is not a license for OSHA to regulate any and

every aspect of employment that OSHA happens to believe

may have some incidental impact on worker health or safety.

There is a fundamental difference between ordering an em-

15 The Court granted certiorari in the Cotton Dust Case on a wage

guarantee issue materially different from that presented in the case at

bar. See footnote 7 supra and accompanying text. Thus, even if the

wage guarantee provision in the cotton dust standard were upheld (and

it should not be), that decision would not dispose of the issue here.

ployer to provide biological monitoring and medical surveil-

lance programs for his employees, on the one hand, and

requiring that he make payments designed (as OSHA concedes

(54441/2)) to induce recalcitrant employees to participate in

those programs, on the other. Indeed, the absence of any

legitimate relationship between MRP earnings protection and

health objectives is dramatically underscored by the fact that

an employee is entitled to full earnings protection even when he

has refused to participate in the employer’s protective medical

programs (54470/2). Such nonmedical payments are hardly the

kind of expenses contemplated by Congress when it imposed

-on employers the “costs . . . [of] meeting the [health] stan-

dards . . . established” under the Act. As this Court empha-

sized in Whirlpool Corp. v. Marshall, 445 U.S. 1, 18 (1980),

“Congress very clearly meant to reject a law unconditionally

imposing upon employers an obligation to continue to pay

their employees their regular pay checks when they absented

themselves from work for reasons of safety.” The MRP provi-

sion in the lead Standard imposes just such an obligation.

The MRP provision is inconsistent not only with this Court’s

reasoning in the Whirlpool case but also with the language of

the Act itself. Section 4(b)(4) specifies that “[nJothing” in the

Act “shall be construed to supersede or in any manner affect

any workmen’s compensation law . ...” 29 U.S.C.

§ 653(b)(4). The MRP/earnings protection requirement in the

Standard, however, “affects” and “supersedes” workmen’s

compeusation schemes by enlarging benefits for those who

might have compensable illnesses and by providing benefits for

those who, although not ill, may exhibit subclinical effects

sometimes associated with lead exposure. The majority admits

that the MRP/earnings protection program would replace

existing workmen’s compensation laws as a “practical” matter

(Maj. Op. at 79a). It nevertheless suggests that the language of

Section 4(b)(4) is inapplicable because it is meant to prohibit

only OSHA standards that have a “/legal”—as opposed to

“practical” —impact on workmen’s compensation laws. Maj.

Op. at 79a. The majority’s interpretation belies common sense,

distorts the language of the Act, and ignores Congress’ careful

deference to state laws, laws that invariably recognize the

dangers inherent in paying an employee 100 percent of his

salary for not working.

E. OSHA denied the industry petitioners due process of law

by failing to give them adequate notice of the rulemaking

proceedings and by relying on secret, post-hearing studies

by independent, expert consultants.

(1) Inadequate Rulemaking Notice. The majority upheld

OSHA’s violation of petitioners’ statutory and constitutional

rights to adequate rulemaking notice by permitting the agency

to promulgate a Standard which was totally different from the

regulation proposed and concerning which virtually no evi-

dence had been received. This case raises starkly a basic

question concerning the nature of OSHA’s obligation to give

interested parties adequate notice of proposed rulemaking.

Simply put, can OSHA, merely by stating in boilerplate lan-

guage that a proposed regulation may not provide adequate

margins of safety, adopt a health standard materially different

from and more stringent than the one proposed?

The court below admits that the difference between the

proposed standard of 100 ug/m’ and the final Standard of 50

ug/m? is “obviously substantial”, enlarges the number of

employees affected, and “greatly increases” the “standard’s

economic and technological demands on industry.” Maj. Op. at

46a-47a. Nevertheless, the majority concludes that the OSHA

notice “adequately informed” interested persons of the sub-

stance of the vastly different and more stringent final rule.'*

16‘ The statutory authority for promulgation of the lead Standard, 29

U.S.C. § 655(b)(2), provides for a notice-and-comment procedure

markedly different from its familiar Administrative Procedure Act

equivalent, 5 U.S.C. § 553(b). The APA requires only that “general

notice” of either “the terms or substance” of the proposal be published

in the Federal Register. The counterpart in the OSHA Act, however,

requires that the “proposed rule” itself be published in the Federal

F.2d 385, 389 (3d Cir. 1974), cert. denied, 423 U.S. 830 (1975). OSHA

did not observe that requirement in this case.

To support this conclusion, the majority opinion cites vari-

cus statements in the notice which it claims “portended” the

course OSHA eventually steered. Maj. Op. at 47a. These

“portents”, as the record indicates, were wholly inadequate.'’

OSHA admits that the record is virtually devoid of evidence on

the technological feasibility or health benefits of a level of 50

ug/m? and that the record contains nothing at all on the

economic feasibility of such a level. As the dissent cogently

argues,

“That no such evidence was offered by anyone during the

extended hearings, especially considering the intensity of

the participants’ adversarial positions, constitutes the best

support for concluding that the 50 ug/m? level was not a

‘logical out-growth’ of the Notice of the Rulemaking

proposal of a ‘100 ug/m’. . . level.’” Diss. Op. at 256a

(emphasis in original).

Adequate notice would obviously have generated a dramati-

cally different record, both on the technological and economic

feasibility of the Standard and on the other issues presented by

petitioners.'* OSHA should not be permitted to follow a

system of notice-by-ambush that denies due process to parties

in OSHA rulemaking proceedings and makes it impossible for

the agency to obtain the “substantial evidence” necessary for

an informed decision.

(2) Ex Parte Expert Evidence. Ignoring the clear mandate of

decisions such as Home Box Office, Inc. v. FCC, 567 F.2d 9

17‘ These statements included, for example, OSHA’s open-ended inquiry

whether an exposure level of 100 ug/m’ “incorporates an appropriate

margin of safety”. As the dissent correctly observes (Diss. Op. at 257a),

OSHA could just as easily argue that these statements justified a

standard of zero.

18 The majority argues—without any factual or logical foundation

whatsoever—that since the industry petitioners claimed that 100 ug/m’

was infeasible, they would have made the same arguments, without

offering additional evidence, concerning 50 ug/m’. Maj. Op. at 55a.

This is patent nonsense. The investigations and evidence concerning

feasibility would obviously have been considerably different had peti-

tioners been apprised of the agency’s intentions.

(D.C. Cir.), cert. denied, 434 U.S. 829 (1977); United States

Lines, Inc. v. FMC, 584 F.2d 519 (D.C. Cir. 1978); and

National Small Shipments Traffic Conference, Inc. v. ICC, 590

F.2d 345 (D.C. Cir. 1978), the court below condoned OSHA's

use of secret post-hearing reports (concededly the only evidence

considered by OSHA on the feasibility of a PEL of 50 ug/m’

(Maj. Op. at 45a)) by certain witnesses who had previously

testified at OSHA’s request as independent experts during the

hearings. The majority did so on the grounds that,

(a) the industry petitioners purportedly failed to show that

the reports, which they have never seen and which they

were unable to secure under the Freedom of Information

Act, contained data that were not in the public record,'®

and

(b) there is “no functional difference” between post-hearing

deliberations involving permanent in-house staff and

those involving independent consultants, even when those

consultants are expert witnesses who, for substantial fees

(Burton was paid more than $243,000 for his work), had

previously taken positions with respect to disputed critical

facts concerning the proposed air-lead exposure limit of

100 ug/m?’ and who obviously had a vested professional

and economic interest in defending the accuracy of their

studies and opinions. Maj. Op. at 39a, 43a.

As the dissent explained (Diss. Op. at 250a-52a), the fallacies

inherent in such rationales are obvious.

There can be no question about the prejudicial impact of

these ex parte reports. Both admittedly influenced OSHA’s

decisions. As OSHA acknowledged when opposing LIA’s

FOIA request for the documents,

19 The mere fact that the consultants were experts meant that their

opinions, views and evaluations constituted new evidence, regardless of

whether these experts did or did not rely upon materials outside the

record. In any event, the contracts referred to documents outside the

record and requested “additional research” and “material supplemen-

tary” to the experts’ testimony. Maj. Op. at 41a-42a. See Diss. Op. at

252a (“the secret reports were nof cumulative of the record evidence

. . . [and] may have included extra-record evidence”).

“(T]he dispositive fact is that the memoranda unques-

tionably were used by OSHA in its ‘on the record’

rulemaking deliberations.” OSHA Reply Br. at 4, Lead

Industries Association, Inc. v. OSHA, 610 F.2d 70 (2d Cir.

1979). See also Maj. Op. at 45 (“the post-hearing contract

with . . . [Burton] was OSHA’s first attempt to obtain

expert advice directly addressing the feasibility of the 50

ug/m? standard”).

The majority’s decision is therefore flatly inconsistent with

earlier decisions by the courts of appeals and with this Court’s

decision in Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402 (1971), requiring the entire record to be available.

Without such a record, no court can perform the searching and

careful review called for by the OSHA Act, by due process,

and by the need to protect against the arbitrary exercise of

administrative discretion.

Conclusion

For the foregoing reasons, this petition for a writ of cer-

tiorari should be granted and the partial stay issued by the

Court on December 8, 1980, should remain in effect pending

review by the Court.

Dated: January 7, 1981

Respectfully submitted,

/s/ Standish F. Medina, Jr.

STANDISH FORDE MEDINA, JR.

Debevoise, Plimpton, Lyons & Gates

299 Park Avenue

New York, New York 10017

(212) 752-6400

Attorney for the Petitioner Lead

Industries Association, Inc. and

liaison counsel for the industry

petitioners and intervenors

WILLIAM F. Boyp, Esq.

Brown, Peacock, Keane & Boyd

P.O. Box 659

Kellogg, Idaho 83837

(208) 784-1105

Attorney for Intervenor

The Bunker Hill Company

JOSEPH C. CARTER, JR., Esq.

DAVID F. PETERS, Esq.

Hunton & Williams

707 East Main Street

Richmond, Virginia 23212

(804) 788-8200

Attorneys for Petitioner

Ethyl Corporation

FRANK M. COATES, JR., Esq.

Taylor, Porter, Brooks & Phillips

Post Office Box 2471

Baton Rouge, Louisiana 70821

(504) 387-3221

Attorney for Intervenor

Schuylkill Metals Corp.

HUGH M. FINNERAN, Esq.

One Gateway Center

Pittsburgh, Pa. 15222

(412). 434-3131

Attorney for Petitioner

PPG Industries, Inc.

VINCENT J. FULLER, Esq.

PETER J. KAHN, Esq.

Williams & Connolly

1000 Hill Building

Washington, D.C. 20006

(202) 331-5000

Attorneys for Intervenor

Dixie Metals Company

BRUCE HAMILL, Esq.

National Paint & Coatings

Association, Inc.

1500 Rhode Island Avenue, N.W.

Washington, D.C. 20005

(202) 462-6272

Attorney for Petitioners

National Paint & Coatings

Assoc., Inc., ef al.

WILLIAM V. HEARNBURG, Esq.

Southwire Company

P.O. Box 1000

Carrollton, Georgia 23212

(404) 832-5375

Attorney for Petitioner

Southwire Company

WILLIAM J. KILBERG, Esq.

STEPHEN E. TALLENT, Esq.

Gibson, Dunn & Crutcher

1776 G Street, N.W.

Washington, D.C. 20006

(202) 789-8500

Attorneys for Petitioner

ASARCO Incorporated

ROBERT D. MORAN, Esq.

Suite 1111

1828 L Street, N.W.

Washington, D.C. 20036

(202) 857-0057

Attorney for Intervenor

Cast ’ tals Federation

JEROME POWELL, Esq.

JOHN M. Woon, Esq.

Reed, Smith, Shaw & McClay

Suite 900

1150 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 457-6119

Attorneys for Petitioner

American Iron and Steel

Institute

W. SCOTT RAILTON, Esq.

Reed, Smith, Shaw & McClay

Suite 900

1150 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 457-6162

Attorney for Petitioner

St. Joe Minerals Corp.

EDWIN H. SEEGER, Esq.

Prather, Seeger, Doolittle

& Farmer

1101 Sixteenth Street, N.W.

Washington, D.C. 20036

(202) 296-0500

Attorney for Intervenor

The Bunker Hill Company

ALLAN J. TOPOL, Esq.

Covington & Burling

888 Sixteenth Street, N.W.

Washington, D.C. 20006

(202) 452-6000

Attorney for Intervenor

The Shipbuilders Council

of America

CARL W. VOGT, Esq.

1150 Connecticut Avenue, N.W.

Washington, D.C. 20006

(202) 452-6800

Attorney for Petitioners

National Paint & Coatings

Assoc., Inc., et al.

ELROY H. WOLFF, Esq.

1730 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

(202) 624-9014

Attorney for Petitioner

Battery Council International

ROBERT V. ZENER, Esq.

1776 F Street, N.W.

Washington, D.C. 20006

(202) 626-7260

Attorney for Petitioners

Ford Motor Company,

General Motors Corporation,

and Chrysler Corporation

APPENDIX

Opinion of the United States Court

for the District of Columbia Circuit

Notice: This opinion is subject to formal revision before publication

in the Federal Reporter or U.S.App.D.C. Reports. Users are requested

to notify the Clerk of any formal errors in order that corrections may be

made before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 79-1048

UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC,

PETITIONER *

F. RAY MARSHALL, Secretary of Labor, United States

Department of Labor, and Doctor EULA BINGHAM, As-

sistant Secretary for Occupational Safety and Health,

United States Department of Labor, RESPONDENTS *

CAST METALS FEDERATION, INTERNATIONAL UNION, UNITED

AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLE-

MENT WORKERS OF AMERICA, UNITED STEELWORKERS

oF AMERICA, AFL-CIO-CLC et al., SHIPBUILDERS COUN-

CIL OF AMERICA, OIL, CHEMICAL AND ATOMIC WORKERS

INTERNATIONAL UNION, AFL-CIO, DIXIE METALS CoM-

PANY, NATIONAL CONSTRUCTORS ASSOCIATION, GENERAL

MoToRS CORPORATION, BUNKER HILL COMPANY, STAND-

ARD INDUSTRIES, and SCHUYKILL METALS CORPORATION,

INTERVENORS

* Consolidated with the following cases (identified by this

circuit’s case number and petitioner), in all of which the

Department of Labor and its Occupational Safety and Health

Bills of costs must be filed within 14 days after entry of judgment. The

court looks with disfavor upon motions to file bills of costs out of time.

Petitions to Review the Occupational Health Standard

for Lead Promulgated by the Secretary of Labor

Argued November 1, 1979

Decided August 15, 1980

George H. Cohen, with whom James M. Harris, Julia

Penny Clark, Robert M. Weinberg, Norman M. Berger,

Mary Win-O’Brien, and James D. English were on the

brief, for petitioner United Steelworkers of America,

AFL-CIO-CLC, and for intervenors Dixie Metals Com-

pany, General Motors Corporation, Bunker Hill Company,

Standard Industries, United Steelworkers of America,

AFL-CIO-CLC, and Schuykill Metals Corporation.

W. Scott Railton, with whom James Kearney, Jerome

Powell, Robert A. Emmett, Paul L. Landry, John McN.

Cramer, and John M. Wood were on the brief, for peti-

tioners American Iron and Steel Institute et al.

Standish F. Medina, Jr., with whom Nicole A. Gordon

and Edwin H. Seeger were on the brief, for petitioners

Lead Industries Association, Inc. et al.

Administration are the respondents: No. 79-1054, American

Iron and Steel Institute et al.; No. 79-1078, Lead Industries

Association, Inc. et al.; No. 79-1079, Battery Council Inter-

national; No. 79-1080, ASARCO Incorporated; No. 79-1081,

Southwire Company; No. 79-1082, National Paint and Coat-

ings Association, Inc. et al.; No. 79-1088, PPG Industries,

Inc.; No. 79-1084, South Central Bell Telephone Company

et al.; No. 79-1106, General Motors Corporation; No. 79-1107,

Ford Motor Company; No. 79-1108, Chrysler Corporation;

No. 79-1111, National Association of Recycling Industries,

Inc. et al.; No. 79-1114, Ethyl Corporation; No. 79-1120,

Corning Glass Works; No. 79-1121, St. Joe Minerals Corpora-

tion; and No. 79-1146, RSR Corporation.

Elroy H. Wolff and Linda S. Peterson were on the

brief for petitioners Battery Council International et al.

! Thaddeus Holt, William J. Kilberg, and Lawrence Z.

Lorber were on the brief for petitioner ASARCO

Incorporated.

William K. Hearnburg and James W. Kesler were on

the brief for petitioner Southwire Company.

Richard O’Brecht and Bruce Hamil were on the brief

for petitioners National Paint and Coatings Association,

Inc. et al.

Hugh M. Finneran and Horace A. Thompson, III were

on the brief for petitioner PPG Industries, Inc.

Carl F. Goodman, with whom Jeanne S. Conroy, Charles

G. Hollis, Frank R. Saunders, and James A. DeBois were

on the brief, for petitioners South Central Bell Telephone

Company et al.

Robert V. Zener and Edward J. Dilworth, Jr. were

on the brief for petitioners General Motors Corporation,

Ford Motor Company, and Chrysler Corporation.

Edward L. Merrigan, with whom Edward F. Schiff

and David A. Donohue were on the brief, for peti-

tioners National Association of Recycling Industries, Inc.

et al.

Joseph C. Carter, Jr., David F. Peters, John J. Adams,

and Horace A. Thompson, III were on the brief for pe-

titioner Ethyl Corporation.

Dennis K. Kade, Assistant Counsel for Appellate Liti-

gation, Department of Labor, and Benjamin W. Mintz,

Associate Solicitor for Occupational Safety and Health,

Department of Labor, a member of the bar of the Su-

preme Court of the United States, pro hac vice, by special

leave of court, with whom Allen H. Feldman, Acting

Counsel for Appellate Litigation, Department of Labor,

Nancy L. Southard, Acting Assistant Counsel for Ap-

pellate Litigation, Department of Labor, and Richard

L. Gross, Attorney, Department of Labor, were on the

brief, for respondents.

Robert S. Moran was on the brief for intervenor Cast

Metals Federation.

Claude D. Montgomery, with whom John A. Fillion,

Judith A. Scott, and M. Jay Witman were on the brief,

for intervenor International Union, United Automobile,

Aerospace and Agricultural Implement Workers of

America.

Alan J. Topal and Steven S. Rosenthal were on the

brief for intervenor Shipbuilders Council of America.

Robert Stulberg, with whom Girardeau A. Spann and

William B. Schultz were on the brief, for intervenor Oil,

Chemical and Atomic Workers International Union, AFL-

CIO.

Vincent J. Fuller and Peter J. Kahn were on the brief

for intervenor Dixie Metals Company.

Stephen C. Yohay, with whom Anthony J. Obadal and

Steven R. Semler were on the brief, for intervenor Na-

tional Constructors Association.

Edwin H. Seeger, Carl B. Nelson, Jr., and John T.

Golden were on the brief for intervenor Bunker Hill

Company.

Frank M. Coates, Jr. was on the brief for intervenor

Schuykill Metals Corporation.

James R. Richards was on the brief for amicus curiae

Capital Legal Foundation urging that the lead standard

be declared invalid.

Marjorie Elizabeth Cox was on the brief for amici

curiae California Department of Industrial Relations et

al, urging affirmance.

Wendy B. Kloner and Douglas L. Parker were on the

brief for amici curiae Women’s Legal Defense Fund et

al, urging affirmance.

Befure WRIGHT, Chief Judge, and ROBINSON and MAC-

KINNON, Circuit Judges.

Opinion for the court ** filed by Chief Judge WRIGHT.

Dissenting opinion filed by Circuit Judge MACKINNON.

Ill.

OUTLINE OF THE OPINION FOR THE COURT

Pages

I a ar caiealdatlaeinieeaiile 8-13

SCOPE OF REVIEW wvssvsenesessnsseesnesessecsncsncsnesneensenenne 13-15

a scenstenemcentineniiulanionne 15-62

A. Bias of the Decisionmaker ............................ 17-23

B. Improper Staff Role and Separation of

ES ER RON DEES EE OO Cen CeO 23-35

C. Improper Use of Consultants -...................... 35-45

D. Notice of Rulemaking .................................... 45-59

E. Denial of Cross-Examination -...................... 59-62

SUBSTANTIVE STATUTORY ISSUES ........................ 62-98

A. Medical Removal Protection -...................... 62-84

1. The MRP program .................................. 63-66

2. General authority under the OSH Act... 66-75

8. The Section 4(b) (4) prohibition _.......... 75-79

4. Interference with national labor policy.. 79-81

5. Reasonableness of MRP ..... Cee 81-84

B. Multiple Physician Review ........................... 84-88

C. Access to Medical Records ............................ 89-98

PERMISSIBLE EXPOSURE LIMIT ............................ 99-140

A. The Threshold Question: “Reasonable Ne-

cessity” and “Significant Risk” _............... 99-112

B. The Section 6(b) (5) Question: “Material

RES a ES 112-116

C. The Evidence on Subclinical Effects ........... 116-129

1. Hematological effects 00... 118-119

2. Neurological effects -...............00020......... 120-121

i I kane 121-124

4. Reproductive effects ..............0..0...-ccccccceeee 124-128

Na ces ienal 128-129

D. Air-Blood Correlation .....................0..-cccccc0ece- 1380-140

VI. FEASIBILITY—DEFINING THE STANDARD ............ 140-163

A. Judicial Interpretation ......00..00000000000000.. 141-148

1. The meaning of feasibility ........0........... 141-145

eS. : & ————” RRGRESE een: 145-148

B. The Circularity Problem ................................ 148-153

C. Resolving the Circularity ..............000000000......... 1538-163

1. Construing the earlier standards _......... 1538-155

es ee re oe 155-163

VII. THE FEASIBILITY OF THE LEAD STANDARD .......... 163-238

A. OSHA’s General Approach .......................... 163-171

B. The Evidence for the Industries _................. 171-238

1. Pramety lead emeitine ............................. 172-181

a. Technological feasibility _.............. 172-178

b. Economic feasibility ................00..... 179-181

2. Secondary lead smelting ...........0..0000..... 181-197

a. Technological feasibility 182-190

b. Economic feasibility ..............0.......... 190-197

8. Battery manufacture 0.0.00... 197-205

a. Technological feasibility ................... 198-202

b. Economic feasibility ...........00000000..... 202-205

4. Brass and bronze (nonferrous) foun-

ee PLP es JISC ORE: |OUR Res, 205-207

5. Pigment manufacture 000... 207-212

Di I aah ce ce 212-215

7. Auto manufacture. .....................cccccecccecc-.. 215-218

8. General findings on “other industries” ..218-224

9. Analyses of specific “other industries’’..224-233

10. Feasibility of medical removal protec-

NIE Cte Ca OL CoRR IS a 233-237

11. Overlap with EPA regulations 237-238

Vas Seren OO no 238-244

Bite IE oc Aissiteashchabitcotsncsiinimeiiiniainsbastateienenestllcdcnen 244-246

WRIGHT, Chief Judge: In November 1978 the Occupa-

tional Safety and Health Administration (OSHA), exer-

cising 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 Amer-

ican workers from exposure to airborne lead in the

workplace.’ In these consolidated appeals petitioners rep-

resenting both labor union and industry interests chal-

lenge virtually every aspect of the new lead standard

and the massive rulemaking from which it emerged.

1 The new standard appears at 43 FED. Rec. 53007 (1978),

with minor amendments at 44 FED. REG. 5446 (1979), and at

29 C.F.R. § 1910.1025 (1979). The Preamble to the standard

appears at 43 FED. REG. 52952-53007 (1978), with Attach-

ments, which we shall refer to as part of the Preamble, at

43 Fep. REG. 54354-54509 (1978). In the interest of sim-

plicity, we shall cite the Preamble only by page and column

number for Volme 43 of the Federal Register, and the final

lead standard only by section number for Title 29 of the 1979

edition of the Code of Federal Regulations.

The Secretary of Labor has delegated his authority to set

standards under 29 U.S.C. §655 (1976) to the Assistant

Secretary of Labor for Occupational Safety and Health, who

is the head of OSHA. For purposes of this opinion, the words

“Secretary,” “agency,” and “OSHA” are interchangeable.

2 By order of March 1, 1979 this court agreed to stay certain

portions of the new lead standard pending outcome of this

appeal. Our summary at the end of this opinion identifies

parts of the stay which shall remain in effect for certain

industries while OSHA reconsiders certain issues on remand.

The unions* claim that OSHA has failed to carry out

its statutory duty to ensure that “no employee will suffer

material impairment of health * * *.” Jd. § 655(b) (5).4

The industry parties* charge OSHA with almost every

procedural sin of which an agency can be guilty in in-

formal rulemaking, attack some of the most important

substantive provisions of the standard as exceeding

3 Briefs in opposition to portions of the standard were filed

by the United Steelworkers of America (USWA) and inter-

venor Oil, Chemical and Atomic Workers International

(OCAW). USWA, however, joined by the United Automobile

Workers, also filed a reply brief defending the new lead

standard against the challenges posed by the industry parties.

Two amici briefs supporting employee interests were also

filed, in behalf of California state employment agencies and

women’s rights and civil rights groups, both briefs solely

devoted to supporting the OSHA provision for medical re

moval protection.

* Because we find the union arguments that attack the

standard without any notable merit, while the industry chal-

lenges pose extremely substantial questions of law and fact,

we address the union arguments only very briefly near the

end of this opinion.

5 The central industry brief opposing the standard was filed

by Lead Industries Association, Inc. (LIA), representing all

affected industries except those which OSHA has placed in

the category of “other industries,” see Part VII-B-8 infra.

Industry briefs challenging OSHA were also filed by the -

American Iron & Steel Institute (AISI), representing some

of those “other industries’; the National Association of Re-

cycling Industries, Inc. (NARI), representing the secondary

lead smelters as well as recyclers of non-lead metals; the

three major domestic automobile manufacturers—Chrysler,

Ford, and General Motors; and the Bell System. Amicus

Capital Legal Foundation filed a brief opposing the medical

removal provision. Intervenor National Construction Asso-

ciation filed a brief supporting OSHA’s decision to exempt

the construction industry from the new lead standard. This

opinion will frequently refer to LIA as the source of industry

arguments made by that party as well as other industry

parties.

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 stand-

ard, remanding to the agency for reconsideration only

the question of the feasibility of the standard for a

number of the affected industries.®

* The summary at the end of this opinion explains the terms

of the remand and lists the industries for which the question

of feasibility remains open on remand.

The dissenting opinion takes strong opposition to our views

on such important issues as the role of the consultants in the

rulemaking, the adequacy of notice in the rulemaking, the

statutory validity of the medical removal protection pro-

gram, and the technological and economic feasibility of the

standard. As we acknowledge at several points in this

opinion, OSHA’s procedures and evidence-gathering were less

than perfect, and a number of important questions on appeal

are very close. We believe, however, that the Supreme

Court’s unanimous opinion in Vermont Yankee Nuclear Power

Corp. v. Natural Resources Defense Council, Inc., 485 U.S.

519 (1978), requires us to be especially wary of imposing

on the agency any procedural or evidentiary constraints

beyond those explicitly established by Congress in the OSH

Act. Therefore, though we recognize that the dissent has

raised serious questions about a number of aspects of the rule-

making, we disagree with its conclusions. However, in as com-

plex and unwieldy a case as this, we think it impractical and

unnecessary to respond to the dissent in a point-by-point

fashion. Rather, we believe our extensive discussions of the

key issues adequately explain our reasons for rejecting the

dissent’s views. See infra Part III-C (Improper Use of Con-

sultants) ; Part III-D & E (Notice of Rulemaking & Denial of

Cross-Examination) ; Part IV-A (Medical Removal Protec-

tion) ; Part VII (Feasibility of the Lead Standard).

10a

I. BACKGROUND

Lead exists naturally in the earth’s crust, the atmos-

phere, 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. 52952/3. We do not

know to a scientific certainty the 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." We do know that in

the United States today, where industry consumes an-

nually over one million tons of lead, at least 800,000

workers, representing 120 occupations in over 40 indus-

tries, are exposed to airborne lead on the job and there-

by face the dangers of lead poisoning.

As scientific means for measuring lead exposure and

lead absorption have improved over the last 50 years,

scientists and the government have set lower and lower

figures for the maximum tolerable level of airborne lead

exposure, but have struggled in setting a precise permis-

sible exposure limit (PEL). A PEL of 500 ug/m® (500

7Two of our recent opinions have discussed the presence

of lead in the atmosphere and the health hazards posed by

lead absorption, Lead Industries Ass’n, Inc. v. EPA, ——

F.2d . (D.C. Cir. No. 78-2201, decided June 27,

1980) (slip op. at 4-5) ; Ethyl Corp. v. EPA, 541 F.2d 1, 7-9

(D.C. Cir.) (en banc), cert. denied, 426 U.S. 941 (1976),

though both of these cases involved review of EPA regula-

tions under the Clean Air Act dealing with the threat of lead

in the general environment.

lla

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*. In 1957

the American Conference of Governmental Industrial

Hygienists increased the recommended maximum to 200

ug/m*, but in 1971 lowered it once again to 150 ug/m’.

Joint Appendix (JA) 1487-1491; 52952/3-52953/1. How-

ever, in that same year, 1971, the newly created Occupa-

tional 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 consen-

sus standard” recommended by the American National

Standards Institute, which set a PEL, measured as an

eight-hour time-weighted average, of 200 ug/m*®. Two

years later the Director of the National Institute for Oc-

cupational Safety and Health (NIOSH) advised the Sec-

retary of Labor to lower the PEL to 150 ug/m® yet

again, and two years after that, in August 1975, the

NIOSH Director suggested that the Secretary lower the

PEL still further.

In response, on October 3, 1975 OSHA published no-

tice of a proposed new standard for occupational lead

exposure, which combined a PEL of 100 ug/m’® with

detailed rules for environmental monitoring, employee

medical surveillance and training, and other health and

safety measures. 40 FED. REG. 45934 (1975). 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 stand-

ard most noticeably in setting the final PEL at 50 ug/m’*.

———_ —————

8OSHA later issued supplemental notices of rulemaking,

42 Fev. REG. 808, 46547 (1977), the latter inviting com-

ments on medical removal protection.

12a

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 pro-

posed standard, as we address petitioners’ separate claims.

However, we proceed now to summarize very briefly

the scheme of the new lead standard.

The final standard restricts employee exposure to

metallic lead, inorganic lead compounds, and organic

lead soaps, 53007/2; § 1910.1025(b), and applies to al-

most all workplace:.? The general scheme of the stand-

ard resembles that of earlier OSHA standards.” It sets

‘a PEL of 50 ug/m® and an “action level” of 30 ug/m*.

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 ex-

ceeds the PEL. Section 1910.1025(d).

All affected employers must meet the 50 ug/m* PEL

immediately through some combination of engineering

controls, work practice or administrative controls,” and

® The standard exempts construction workers and agricul-

tural workers. Section 1910.1025(a)(2). On August 23,

1979 OSHA issued a corrective amendment to this section,

explaining that the standard exempts regular employees of

the construction industry, but not employees of other indus-

tries who do construction work. OSHA Brief, Addendum A.

10 F.g., 29 C.F.R. §1910.1001 (1979) (asbestos); id.

§ 1910.1017 (vinyl chloride) ; id. § 1910.1043 (cotton dust).

11 The “action level” is the level of airborne lead concen-

tration which triggers the employer’s responsibility to insti-

tute medical surveillance and biological monitoring. See

§ 1910.1025 (j).

12 Engineering controls alter the industry’s machines,

processes, materials, or products to reduce lead exposure at

13a

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® and then

the final PEL of 50 ug/m? solely through engineering

and work practice controls. The deadlines for each in-

dustry are determined by OSHA’s sense of that industry’s

technological and economic capacity for change. Section

1910.1025(e) (1).** 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.

its source. 52989/3. Work practice or administrative controls

are those controls, other than personal respirators, which

protect employees from the lead which does escape into the

workplace. They include rotation of employees, housekeeping

and cleaning, and personal hygiene. /d.

18 The phase-in schedule appears in Table I, § 1910.1025 (e) :

Industry 1

Compliance dates 2

200 8 100 50

ug/m® ug/m*® ug/m*®

Primary lead production ................ (3) 3 10

Secondary lead production .............. (3) 3 5

Lead-acid battery manufacturing. (3) 2 5

Nonferrous foundries ...................... (3) 1 5

Lead pigments manufacturing ...... (3) 3 5

All other industries —..........0........... (3) 0 1

1 Includes ancillary activities located on the same work-

site.

2 Expressed as the number of years from the effective

date by which compliance with the given airborne ex-

posure level, as an 8-hour TWA, must be achieved.

8 On effective date.

This key provision of the lead standard is based on OSHA’s

view that respirators are an inferior and inadequate means

of protecting workers. 52990/2-3.

l4a

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 res-

pirators, §§ 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 ex-

posure exceeds the PEL, the employer must give the em-

ployees protective work clothing and equipment, § 1910.-

1025(g), and in all workplaces the employer must follow

rigorous rules on housekeeping and hygiene, §§ 1910.-

1025 (h), (i).

Whenever exposure in a workplace exceeds the action

level for more than 30 days in a year, the employer

must supplement environmental monitoring with bio-

logical 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 find-

ings of a company physician’s medical: examination, the

employer must pay for a second, and possibly a third,

medical examination to assess the accuracy of the first

examination, § 1910.1025(j) (3) (iii).

Under one of the most important and controversial

parts of the standard, and one relatively without prece-

dent in earlier standards, whenever biological monitor-

ing 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

15a

from the workplace. Section 1910.1025(k). Under this

medical removal protection (MRP) provision, the em-

ployer may place the removed worker in another, low-

exposure, workplace or, if no such workplace is avail-

able, may have to place the worker on leave. But what-

ever 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 origi-

nal workplace until the lead-induced ailment disappears

or the worker’s blood-lead level shows significant reduc-

tion. Sections 1910.1025(k) (1) (iii)-(v), (k) (2).

Finally, the standard requires employers to create

safety and health training programs for their lead-

exposed workers, § 1910.1025(/), to keep detailed records

on environmental monitoring in the workplace and on

the biological monitoring and medical surveillance of in-

dividual 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

In our recent decision in the cotton dust case, AFL-

CIO v. Marshall, —— F.2d —— (D.C. Cir. No. 78-

1562, decided October 24, 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 re-

view for OSHA cases. However, we summarize that

analysis very briefly here.

16a

Though the OSH Act adopts the “substantial evidence”

test for judicial review, 29 U.S.C. § 655(f) (1976), rule-

making under that Act remains essentially informal.

AFL-CIO v. Marshall, supra, —— F.2d at ——, slip

opinion at 25:

The tasks of this reviewing court are thus to en-

sure 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 sub-

stantial evidence in the record to support its deter-

minations.

(Footnotes omitted.) Of course, we must rigorously re-

view the agency’s interpretations of the substantive pro-

visions 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 legisla-

tive 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, —— F.2d at ——,

slip opinion at 25-28, 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, —— USS. .

48 U.S. L. WEEK 5022, 5035 (July 2, 1980) (herein-

after cited to Law Week pages only) (plurality opin-

17a

ion); id. at 5037 (Burger, C.J., concurring). Rather,

our task is to “ensure public accountability,” ——— F.2d

at ——, slip opinion at 27, 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 evi-

dence 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

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 dis-

regarded minimal principles of procedural fairness. Ver-

mont Yankee Nuclear Power Corp. v. Natural Resources

Defense Council, Inc., 485 U.S. 519 (1978). Second, as

both a legal and a practical matter, we must recognize

the procedural flexibility inherent in informal rulemak-

ing, as well as the difficulty an agency faces in manag-

ing hundreds of comments and witnesses and developing

a coherent standard out of tens of thousands of pages

of record evidence.

18a

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 op-

portunity 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 im-

portant issues and offer interested persons verbatim

transcripts of the hearing. 29 C.F.R. § 1911.15(b)

(1979).

Nevertheless, Congress’ decision to impose the substan-

tial 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

lerislative process of informal rulemaking into something

akin to adjudication, nor empowers courts to turn rule-

makings into courtroom trials. Ass’n of Nat'l Adver-

tisers, Inc. v. FTC, F.2d —— (D.C. Cir. No. 79-

1117, decided December 27, 1979). Thus, as we examine

the procedural claims in the lead proceeding, we must

avoid imposing procedural constraints beyond those in

APA Section 553, the OSH Act, and the Due Process

Clause, and we remain bound by judicial construction

of the demands of APA Section 553 as our source for the

general principles of informal rulemaking.

Acting under these constraints, we ultimately find

nothing illegal in OSHA’s procedural conduct.

19a

A. Bias of the Decisionmaker

LIA urges us to vacate the entire lead standard be-

cause, in its view, the official who ultimately set the

standard, Assistant Secretary of Labor Eula Bingham,

had prejudged the essential issues in the rulemaking

proceeding. For proof of this allegedly fatal bias, LIA

points to a speech Bingham delivered on November 3,

1978 to a United Steelworkers of America conference

on occupational exposure to lead.

Bingham’s speech began innocuously, if dramatically

(“Brothers and Sisters”), by noting her concern for

workers and by recognizing how much OSHA depended

on the*+ 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 medi-

eal removal protection provision (MRP):

I think that there may be some apprehension be-

cause Assistant Secretaries in the past have not al-

ways 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 Commit-

tee hearings. As far as I’m concerned, it is impossi-

ble to have a Lead Standard without it. * * *

Appendix to Lodged Documents (ALD) 3. As to the dan-

gers of lead:

* * * T can tell you about a plant within 300 miles

of the city where workers are told to go to the hos-

pital 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

20a

is undergoing kidney dialysis, and I’ll bet you a

dinner that some of those workers have been in Jead

plants.

Id. at 4. As to economic feasibility:

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.

* +

* * * T don’t understand a society such as ours

who is not willing to pay a dollar more for a battery

to insure that workers do not have to pay for that

battery with their lives.

Id. at 5. The speech went on to urge workers “to con-

trol their own destiny” by educating themselves about

the lead problem, and ended by calling for political sup-

port in the imminent congressional elections for candi-

dates sympathetic to OSHA’s goals. Jd. at 9.

Were it our task to assess the wisdom and propriety

of an administrator’s public conduct, we might well ad-

monish 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 re-

leased it, came 30 days after Bingham had effectively

made her own decision on the standard and ten days

after she had approved the final language.

An administrative official is presumed to be objective

and “capable of judging a particular controversy fairly

2la

on the basis of its own circumstances.” United States

v. Morgan, 318 U.S. 409, 421 (1941). Whether the

official is engaged in adjudication or rulemaking, mere

proof that she has taken a public position, or has ex-

pressed 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 (1976);

United States v. Morgan, supra, 313 U.S. at 421. 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 (1948). To disqualify adminis-

trators because of opinions they expressed or developed

in earlier proceedings would mean that “experience ac-

quired from their work * * * would be a handicap in-

stead of an advantage.” Jd. at 702.

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 con-

ducts in good faith. Lead Industries Ass’n, Inc. v. EPA,

— F.2d ' (D.C. Cir. No. 78-2201, decided

June 27, 1980) (slip opinion at 99); Carolina Environ-

mental Study Group v. United States, 510 F.2d 796, 801

(D.C. Cir. 1975).

This court has indeed required disqualification of an

agency adjudicator when his public statements about

pending cases revealed he “‘has in some measure ad-

judged the facts as well as the law of a particular

ease in advance of hearing it.’” Cinderella Career &

Finishing Schools, Inc. v. FTC, 425 F.2d 588, 591 (D.C.

Cir. 1970), quoting Gilligan Will & Co. v. SEC, 267 F.2d

461, 469 (2d Cir.), cert. denied, 361 U.S. 896 (1959) ;

22a

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 (1965). And, although these

cases involved adjudication, we could perhaps logically

apply them to hybrid rulemaking proceedings like the

present one in which the factual predicates of final rules

are subject to review under the substantial evidence

test.

So applied, however, these cases would lead us to va-

cate the lead standard only if Dr. Bingham had demon-

strably made up her mind about important and specific

factual questions and was impervious to contrary evi-

dence. 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 dif-

ference 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.” ——— F.2d at ——, slip

opinion at 38.

The relevant statute in Ass’n of Nat’l Advertisers, Inc.

v. FTC, supra, Section 18 of the Federal Trade Com-

mission 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 de-

23a

ciding whether the official had prejudged factual issues.

— F.2d at ——, slip opinion at 33.“

Dr. Bingham’s general expression of solidarity with the

Steelworkers was legally harmless. Her call for support

for congressional candidates sympathetic to her agency’s

mission did not bear on any specific issues in the case,

and is probably the sort of political activity we simply

must accept from a political appointee. Thus her bias,

if any, shows up in her remarks about MRP, the dangers

of lead poisoning, and the inflationary effect of the lead

standard.

Had she made these remarks before the rulemaking

began or while OSHA was receiving public comments,

we might still have had to strain precedent to find

grounds for disqualification. Her remarks on MRP do

not bear on any specific factual issues, but rather reveal a

general predisposition on a matter of policy, of the sort

held legally harmless in FTC v. Cement Institute, supra,

and Ass’n of Nat’l Advertisers, Inc. v. FTC, supra. Her

remarks about endangered workers do bear on a factual

question, but only very generally; they reveal no pre-

judgment on the precise and complex factual issues in the

case, such as the exact blood-lead level at which disease

14 FTC Chairman Pertschuk had made public statements

expressing his strong belief in the harm advertising caused

small children and in the need for stringent rules to curb

that harm. Our decision stated that in presenting legal and

policy arguments for the rules Pertschuk “not unnaturally

employed the factual assumptions that underlie the rationale

for Commission action,” but that his use of such assumptions

“did not necessarily bind him to them forever.” Ass’n of

Nat’l Advertisers, Inc. v. FTC, —— F.2d . (D.C.

Cir. No. 79-1117, decided Dec. 27, 1979) (slip op. at 48).

We also noted that the very requirement that an agency

issue a formal notice of proposed rulemaking assumes that

the agency head will make tentative conclusions of fact to

help focus the rulemaking comments. —— F.2d at ——,

slip op. at 44-45.

24a

develops. Finally, although the speech does allude spe-

cifically to the cost of the standard to the battery in-

dustry, 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 under-

valuing worker health.

In any event, the fact remains that Dr. Bingham de-

livered the speech after she had decided on the stand-

ard 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 mind-

reading, but they would have to involve far more ex-

plicit 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,” and her statement on that subject falls with-

in 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. Thus, Bing-

ham’s speech simply does not reveal prejudgment with

sufficient specificity to prove bias under the Cinderella

15 Bingham had been chairperson of the advisory committee

empaneled by the Secretary to aid him in setting a standard

for coke ovens. In that role she voted for a medical removal

provision, but the Secretary decided not to include the pro-

vision in the coke oven standard. Since that time Bingham

has overseen the issuance of at least one OSHA standard—

for arsenic—that contains no MRP provision. See 43 FED.

REG. 19584 (1978). Though LIA notes that the record on the

arsenic standard had been closed before Bingham assumed

her new job, that standard does at least show that Bingham’s

views did not force OSHA into an unyielding posture. Simi-

larly, though the cotton dust standard issued under Bingham’s

direction does provide for retaining wages for removed

workers, 29 C.F.R. § 1910.1043(f) (2) (v) (1979), that pro-

vision, triggered by a worker’s inability to wear a respirator,

differs noticeably from the lead MRP, § 1910.1025(k), which

depends on the measured blood-lead level in a worker’s body.

25a

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. Bing-

ham’s speech, however unfortunate, does not prove the

proceedings unfair.

B. Improper Staff Role and Separation of Functions

LIA aims its next procedural attack at OSHA staff

attorneys who, LIA argues, acted essentially as advocates

for a stringent lead standard by consulting with and

persuading the Assistant Secretary as she drew her

conclusions from the record. LIA would have us con-

clude 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 un-

fair. Grounding its contention somewhat equivocally on

due process, the procedural principles inherent in hybrid

rulemaking, and OSHA’s own regulations providing for

cross-examination, LIA asks us to invalidate the entire

proceeding.

The key agency employee in question was Richard

Gross, a lawyer in the Office of the Solicitor at OSHA,

who served as a so-called “standard’s attorney” through-

out the rulemaking.’® His precise role is as ambiguous

as it is important. LIA portrays him as a sort of guard-

16 Another lawyer from the Office of the Solicitor, Donald

Kuchenbecker, also served in this role during the hearing,

but apparently did not join Gross in advising the Assistant

Secretary during the setting of the final standard. LIA also

points to a special consultant on MRP, Robert Jennings,

who assisted Gross throughout the proceedings. See Appendix

to Lodged Documents (ALD) 28-48. LIA apparently concedes

that Jennings, though not the other OSHA consultants, see

text and note at note 32 infra, was, in effect, a staff employee.

26a

ian 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 im-

permissibly 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 work-

er health inevitable in any OSHA employee.

The standard’s attorney was at the center of activity

throughout the rulemaking.’’ He worked with the regu-

lar 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 wit-

nesses. 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 criti-

cism of the experts’ testimony, and asked the experts

for any new information that supported or contradicted

the OSHA proposal.'* During the hearing itself he con-

17The following summary of the role of the standard’s

attorney derives from the Affidavit of Grover C. Wrenn,

Director of Health Standard Programs at OSHA. Supple-

mental Appendix (SA) 2237.

18 The letters of Gross’ colleague, Donald Kuchenbecker,

to two of the expert medical witnesses best reveal the work

of the standard’s attorney. ALD 66-82. The letters are ex-

haustively detailed and generally quite neutral in briefing

the witnesses on the important medical issues and urging

them to supply all new relevant evidence, including any at

odds with a stringent lead standard. Nevertheless, Kuchen-

becker did make some imprudent remarks. He told Dr.

Piomelli that it “would not be helpful to OSHA” if the latter

27a

ducted all initial questioning of OSHA witnesses and

cross-examined all other witnesses. After the hearings

he assisted the Assistant Secretary by reviewing the evi-

dence in the record, preparing summaries, analyses, and

recommendations, and helping draft the Preamble to

the final standard.

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 under-

goes 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 com-

promise, 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 sup-

ported by one specific party.

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

were to state that there was no correlation between air-lead

and blood-lead measurements, ALD 77, and told both Dr.

Piomelli and Dr. Seppalainen that OSHA wanted to avoid

the “ticklish issue” of how to accommodate female workers

of child-bearing age if feasibility limits required OSHA to set

a standard that threatened such women but not other workers.

ALD 72, 74-75.

In context, these remarks do not overcome the generally

objective import of the letters; moreover, Kuchenbecker him-

self did not advise the Assistant Secretary on the final stand-

ard, and we are loath to project his attitude onto Gross.

28a

principles “against” the industry parties so obviously

adverse to them. Moreover, by conducting the “direct

examination” of OSHA witnesses and the cross-examina-

tion of all others, the standard’s attorney certainly cre-

ated the public impression of conventional legal advo-

cacy. 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 objective-

ly—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 “ad-

‘vocate” in the context of such rulemaking,” we will

assume he played that role so we can measure his conduct

against the legal constraints on the agercy.”

19 We also have some doubt as to the wisdom of singling out

a staff lawyer in this case, when other, nonlegal, staff people

probably participated with great vigor both in developing

the agency position during the hearings and in advising the

Assistant Secretary in drafting the final standard. In the

major case in this court to address the issue of staff influence,

Hercules, Inc. v. EPA, 598 F.2d 91 (D.C. Cir. 1978), see text

and note at note 29 infra, the agency decisionmaker admitted

she had consulted with a wide range of staff employees after

the record was closed. Nevertheless, in expressing concern

about the propriety of staff influence there, we focused solely

on the conduct of the staff attorneys, id. at 127, even though

they were the only staff people consulted with whom the de-

cisionmaker did not discuss factual or policy questions. Draw-

ing a generic distinction between lawyers and nonlawyers in

an informal rulemaking may be dubious practice. But we need

not decide the matter here, because we hold that the stand-

ard’s attorney’s conduct did not impair the proceedings even

if that conduct was generically different from his colleagues’.

20 We assume, however, only that the standard’s attorney

may have inffuenced the Assistant Secretary by reinforcing,

according to his bias, certain information and arguments

that they were put in the record of the public proceedings.

Thus this is not a case where agency employees supplied the

decisionmaker with actual new evidence which the agency

has identified as part of the basis of its decision, but which it

°° eS

29a

has refused to disclose except through a “blind reference.”

See United States Lines, Inc. v. FMC, 584 F.2d 519, 533-536

(D.C. Cir. 1978). The distinction is important, since we

were referring only to the latter situation when we

stated, in the course of restricting ex parte contacts, in Home

Box Office, Inc. v. FCC, 567 F.2d 9, 55 (D.C. Cir.) (per

curiam), cert. denied, 484 U.S. 829 (1977): “From a

functional standpoint, we see no difference between assertions

of fact and expert opinion tendered by the public * * *and

that generated internally in an agency * * *.”

In the absence of proof by LIA that the staff did supply

the decisionmaker with new hard data off the record, our

assumption that the staff lawyer was an advocate does not

mean that he was anything other than a staff advocate. That

is, even if he were predisposed on the lead standard, the

standard’s attorney’s conduct remained within the general

boundaries of the deliberative process and, however biased,

his communications with the Assistant Secretary remained

within the boundaries of deliberative material. Thus, any

errors in the Assistant Secretary’s determinations attributable

to the staff lawyer’s predisposition remain within the liberal

notion of the deliberative process we described in the con-

text of the intra-agency communication exemption to the

Freedom of Information Act:

It is possible that the assistants in winnowing down

the record may have made errors of inclusion or exclu-

sion, or even gross distortions of fact. But these possi-

bilities reflect human errors and misjudgments which

are part of the deliberative process. The fact that errors

may creep in and mislead the final decision-maker merely

suggests that there may be errors in the deliberative or

adjudicatory process; it does not mean that the pre-

liminary studies by the staff are separate from the ad-

judicatory process or should be classified as part of the

public record. The work of the assistants in separating

the wheat from the chaff is surely just as much part of

the deliberative process as is the later milling by running

the grist through the mind of the administrator. And

that some wheat is thrown away and some chaff included

with the grain does not alter the nature of the process,

even though it reflects error on the part of the assistants.

Montrose Chemical Corp. v. Train, 491 F.2d 63, 71 (D.C. Cir.

1974). It will be important to keep this notion of the de

liberative process in mind when we examine below the simi-

larity of outside consultants to agency staff.

30a

We note at the outset that nothing in the Administra-

tive Procedure Act bars a staff advocate from advising

the decisionmaker 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 decisionmaker and any other person about a fact

in issue, and in particular bars any prosecuting or in-

vestigating 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 472-478; 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). 5 U.S.C. §557(d) (1976), which applies

21The ATTORNEY GENERAL’S MANUAL ON THE ADMINIS-

TRATIVE PROCEDURE ACT (1947), which is helpful in constru-

ing the APA because the Justice Department helped to draft

the statute, Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., supra note 6, 435 U.S. at

546 & n.19, notes:

Not only were the draftsmen and proponents of the bill

aware of this realistic distinction between rule making

and adjudication, but they shaped the entire Act around

it. Even in formal rule making proceedings * * * the Act

leaves the hearing officer entirely free to consult with any

other member of the agency’s staff. In fact, the inter-

mediate decision may be made by the agency itself or by

a responsible officer other than the hearing officer. This

reflects the fact that the purpose of the rule making

proceeding is to determine policy. Policy is not made in

Federal agencies by individual hearing examiners; rather

it is formulated by the agency heads relying heavily upon

the expert staffs which have been hired for that purpose.

And so the Act recognizes that in rule making the inter-

mediate decisions will be more useful to the parties in

advising them of the real issues in the case if such de-

3la

to formal rulemaking as well as adjudication, prohibits

ex parte communications relevant to the merits of a pro-

ceeding between the agency and interested parties out-

side the agency. Even were we to ignore our own de-

termination 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; Leg-

islative 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)).

Moreover, in establishing the special hybrid procedures

in the OSH Act, Congress never intended to impose the

separation-of-functions requirement it imposes in adjudi-

cations. The legislative history shows that Congress con-

sistently turned back efforts to impose such formal pro-

cedures on OSHA standard-setting.”? Adding to informal

rulemaking the special requirement of a substantial evi-

dence test does not change the essential character of the

cisions reflect the views of the agency heads or of their

responsible officers who assist them in determining

policy. * * *

ATTORNEY GENERAL’S MANUAL at 15.

22 The House-reported bill would have imposed on OSHA

a@ quasi-adjudicatory scheme for setting standards, including

a special five-member standard-setting board, Legislative

History of the Occupational Safety and Health Act of 1970,

92d Cong., Ist Sess. 1095-1096 (Comm. Print) (June 1971)

(hereinafter Legis. Hist.), which was intended to ensure

separation of functions within the agency. Jd. at 148. Con-

gress rejected the scheme, intending instead that “profes-

sional and technical expertise * * * involved in the develop-

ment and promulgation of a standard * * * would be fully

available to the Secretary, both as members of his staff, and

as members of advisory committees.” Jd.

32a

rulemaking, Ass’n of Nat’l Advertisers, Inc. v. FTC,

supra, —— F.2d at ——, slip opinion at 18,° 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) .%

Thus we can discern no statutory basis in either the

APA or the OSH Act for a separation-of-functions re-

quirement in OSHA rulemaking. And under the Su-

preme Court’s decision in Vermont Yankee Nuclear Pow-

er Corp. v. Natural Resources Defense Council, Inc., su-

pra, that is virtually the end of the inquiry. Unless

we find that the standard’s attorney here violated the

23 Indeed, an “emerging consensus” of the Courts of Appeals

cautions us not to exaggerate the difference between “sub-

stantial evidence” and “arbitrary and capricious” review

even with regard to agency factfinding, the element of in-

formal rulemaking to which these formulas directly apply.

Pacific Legal Foundation v. Dep’t of Transportation, 593

F.2d 1338, 1343 n.35 (D.C. Cir.), cert. denied, U.S. —-,

48 U.S. L. WEEK 3218 (Oct. 1, 1979).

24 As Judge Leventhal put it in American Airlines, Inc. v.

CAB, 359 F.2d 624, 629 (D.C. Cir.), cert. denied, 385 U.S.

843 (1966) :

[R]ule making is a vital part of the administrative

process, particlularly adapted to and needful for sound

evolution of policy * * *, [and] is not to be shackled, in

the absence of clear and specific Congressional require-

ment, by importation of formalities developed for the

adjudicatory process and basically unsuited for policy

rule making.

See United States v. Florida East Coast R. Co., 410 U.S. 224,

240-241 (1973); United States v. Allegheny-Ludlum Steel

Corp., 406 U.S. 742, 757-758 (1972); Wright, Court of

Appeals Review of Federal Regulatory Agency Rulemaking,

26 ADMIN. L. REV. 199, 206-207 (1974).

Of course, the mere fact that this particular proceeding

became highly adversarial cannot transform informal rule-

making into something else. See Hoffman-LaRoche, Inc. v.

Kleindienst, 478 F.2d 1, 18 (8d Cir. 1978).

33a

due process rights of the petitioners, 435 U.S. at 543,

or that this is one of those “extremely compelling cir-

cumstances” in which courts remain free to impose non-

constitutional extra-statutory procedures on agencies,

id., we must reject LIA’s challenge here.*

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, 484 U.S. 829 (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 communica-

tions. In United States Lines, Inc. v. FMC, 584 F.2d

519, 536-543 (D.C. Cir. 1978), decided after Vermont

25 We note that LIA’s attempt to infer a ban on ez parte

staff contacts from OSHA’s own regulations impermissibly

strains the language and import of those regulations. The

agency has carried out its mandate to combine informal rule-

making with the substantial evidence test by ruling that

“fairness may require an opportunity for cross-examination

on crucial issues” and providing:

The presiding officer is empowered to permit cross-

examination under such circustances. The essential in-

tent is to provide an opportunity for effective oral pre-

sentation by interested persons which can be carried

out with expedition and in the absence of rigid pro-

cedures which might unduly impede or protract the rule-

making process.

29 C.F.R. § 1911.15(a) (3) (1979). This very general ac-

commodation of the need for some sort of oral presentation

in no way implies such an unusual rule as a ban on staff

influence over agency decisions, especially where there is no

proof that the standard’s attorney provided the Assistant

Secretary with any hard data that escaped cross-examination.

Cf. Ass’n of Nat’l Advertisers, Inc. v. FTC, supra note 14,

—— F.2d at ——, slip op. at 18 (statutory provision of

limited right of cross-examination does not convert informal

rulemaking into adjudication).

34a

Yankee, we r-affirmed the principle of Home Box Office,

finding the bau on ex parte contacts there inherent in the

statutory requirements of a hearing™ and judicial re-

view 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

decisionmakers,”" nor does the reasoning of either case

lead us to apply the ben on ex parte contacts to agency

staff.

In Home Box Office, of course, we expressed our gen-

eral concern that whenever the record fails to disclose

important communications that may have influenced the

agency decisionmaker, 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 con-

text of massive evidence that industry parties financially

interested in the rulemaking secretly lobbied with FCC

staff and commissioners. We stated:

~ [T]he evidence is certainly consistent with often-

voiced claims of undue industry influence over Com-

mission proceedings, and we are particularly con-

cerned that the final shaping of the rules we are

reviewing here may have been by compromise among

the contending industry forces, rather than by exer-

cise of the independent discretion in the public inter-

26 Thus, one reason that United States Lines, Inc. v. FMC,

supra note 20, is inapposite is that the OSH Act, unlike the

statute there, does not make a hearing a sine qua non of

standard-setting, but requires a hearing only when a party

requests one upon filing an objection to a proposed rule. 29

U.S.C. § 655(b) (8) (1976).

27In United States Lines, Inc. v. FMC, supra note 20,

agency staff served as a conduit between the agency and the

interested outside parties, 584 F.2d at 537-538, but the court’s

real concern obviously lay with the improper influence of the

outsiders.

35a

est the Communications Act vests in individual com-

missoners. * * *

Id. at 53. Influence from within an agency poses no

such threat. Moreover, in summarizing our guidance for

the agencies in Home Box Ojjice 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 such party[.]” Jd. 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 argu-

ments from private parties, we stated that “adversarial

comment is particularly critical where, as here, ex parte

communications are made by a party interested in se-

curing the Commission approval necessary for the le-

gality of its contracts[.]” United States Lines, Inc. v.

FMC, supra, 584 F.2d at 542.

Neither the constitutional 7* nor the implicit statutory

principles that decided these cases apply with any force

to the type of staff influence LIA challenges here. More-

over, an OSHA rulemaking proceeding is of a character

wholly distinct from that of a proceeding which resolves

“conflicting private claims to a valuable privilege,” San-

gamon Valley Television Corp. v. United States, 269 F.2d

221, 224 (D.C. Cir. 1959), quoted in Home Box Office,

Ine. v. FCC, supra, 567 F.2d at 55, and from a “quasi-

adjudicatory” proceeding in which we found the poten-

tial for bias as great as that in a case of competing

claims, United States Lines, Inc. v. FMC, supra, 584 F.2d

at 589, 542.

28 The Supreme Court has held that due process does not

reauire separation between investigation and adjudication

in an agency proceeding. Withrow v. Larkin, 421 U.S. 35, 47-

52 (1974). As a general rule, due process probably imposes

no constraints on informal rulemaking beyond those imposed

by statute. See Willapoint Oysters, Inc. v. Ewing, 174 F.2d

676, 694 (9th Cir. 1949). Thus we are very wary of extend-

ing the due process reasoning of Home Box Office.

36a

In only one recent case have we actually addressed

the propriety of ex parte contacts between agency de-

cisionmakers and agency staff, but even there our dis-

cussion of the issue only was dictum, and indeed es-

sentially 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 prob-

lem 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.

To be sure, most of the special factors we’ cited in

avoiding ruling on the issue in Hercules, Inc. are absent

here.” Nevertheless, LIA’s reading of Hercules, Inc. ig-

2° The judicial officer in Hercules, Inc. v. EPA, supra note

19, only consulted the staff attorneys on the location of

documents in the record; she did not discuss facts and policy

with them. 598 F.2d at 121-122. The proceeding in that case

was complete before we handed down Home Box Office, so

we followed Action for Children’s Television, Inc. v. FCC,

564 F.2d 458, 474 (D.C. Cir. 1977), in refusing to apply

Home Box Office retroactively. Hercules, Inc. v. EPA, supra,

598 F.2d at 126. These two factors obviously distinguish

Hercules, Inc. from the present case. Of a third factor, how-

ever, we are less sure. We noted in Hercules, Inc. that Con-

gress had created, and the courts had reinforced, severe

and rigid timetables for rulemaking on toxic substances, so

the agency needed all the help it could get in the face of the

massive record there to comply with the law. Jd. Although

OSHA is not under the same specific restraints, its proceed-

ings, like EPA’s, involve records of “extraordinary bulk and

complexity,” id., and its mandate, like EPA’s, invokes “the

rule of ancient origin that expedition in protecting the public

health justifies less elaborate procedure than may be required

in other contexts.” Jd. (citing cases).

37a

nores the almost unmistakable conclusion we drew there:

that the issue was one for Congress or the agencies to

resolve. Recognizing, however euphemistically, that Ver-

mont Yankee “counsels restraint” in imposing nonstatu-

tory 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 require-

ment unless agencies begin to abuse the practice, in which

case “[a]mendatory or supplementary legislation can

supply any deficiency.” 92 CoNG. Rec. 2159 (1946) (re-

marks of Senator McCarran), quoted in Hercules, Inc. v.

EPA, supra, 598 F.2d at 127. We ended our discussion

of the issue by asserting:

Now might be a particularly propitious time for

Congress or the agencies to limit or provide disclo-

sure of post-hearing contacts between staff advocates

and decisionmakers. * * *

Id. at 127-128. The invitation to Congress and the agen-

cies may remain, but so do the limits of the judicial task.

Rulemaking is essentially an institutional, not an indi-

vidual, process, and it is not vulnerable to communication

within an agency in the same sense as it is to communi-

cation from without. In an enormously complex proceed-

ing 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, 879 F.2d 458, 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

LIA makes two attacks on OSHA’s reliance on out-of-

house consultants in developing the lead standard.

38a

The first attack goes to the general use of consultants

and the effect thereof on the Assistant Secretary’s exer-

cise of her duty to determine the final standard. LIA

contends that the Assistant Secretary hired so many con-

sultants and relied on them so heavily for so many tasks

that she essentially abdicated her responsibility for set-

ting the lead standard to outsiders. OSHA itself admits

that it lacked sufficient staff expertise to deal with all

the important issues without outside help,® 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.

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 feasibiilty

and ileveloping a “technology-forcing” rationale for the

standard. The agency hired a number of other expert

consultants, giving them fairly broad mandates to sum-

marize and evaluate data in the record, prepare record

data for computer processing, and help draft portions of

the Preamble and the final standard. F£.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 in-

centive to tell the agency what it wants to hear, and have

no civil service protection against retaliation for telling

uncomfortable truths.

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,

30 Affidavit of Grover C. Wrenn, SA 2240-2241.

39a

in imposing procedural rules on the agencies. If any-

thing, the law generally bearing on the issue supports

OSHA here. The OSH Act empowers the agency to em-

ploy 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 re-

sponsibilities seriously. Weyerhauser Co. v. Costle, 590

F.2d 1011, 1026 (D.C. Cir. 1978) .*

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 (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,

879 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, it did not, of course, address

the question of outside consultants. Nevertheless, apply-

ing 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 personally confront the essential evidence and argu-

ments 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 At-

tachments to the final standard the decisionmaker re-

viewed the evidence and explained the evidentiary bases

31“Where existing methodology or resezcch in a new area

of regulation is deficient, the agency necessarily enjoys broad

discretion to attempt to formulate a solution to the best of its

ability on the basis of available information.” Industrial Union

Dep’t, AFL-CIO v. Hodgson, 499 F.2d 467, 474-475 n.18 (D.C.

Cir. 1974).

40a

for each part of the standard. Moreover, the Assistant

Secretary demonstrated her independence from the con-

sultants by strongly criticizing some of their conclusions

on the key issue of feasibility. F'.g., 52984/1.

To inquire further would be to probe impermissibly

into the mental processes by which the Assistant Secre-

tary made her decision. See United States v. Morgan,

supra, 313 U.S. at 422; Washington Research Project,

Inc. v. Dep’t of HEW, 504 F.2d 238, 248 (D.C. Cir.

1974), cert. denied, 421 U.S. 963 (1975). The unsup-

ported allegation that hired consultants might have an

incentive to act dishonestly cannot overcome the presump-

tion 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.

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 feasi-

bility of a permissible air-lead standard of 50 ug/m', as

opposed to the 100 ug/m* standard the agency had pro-

posed 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 be-

tween 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

4la

the public hearings.** Both fulfilled the new requests by

submitting written reports, of 117 and 192 pages respec-

tively, 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 com-

munications 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.

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 stand-

ard. See Seacoast Anti-Pollution League v. Costle, 572

F.2d 872, 881 (1st Cir. 1978), cert. denied, 439 U.S. 824

(1979). Thus LIA has not shown that OSHA has mate-

rially prejudiced parties who were not privy to the com-

munications. See id.; compare Doe v. Hampton, 566

F.2d 265, 276-278 (D.C. Cir. 1977) (ex parte introduc-

tion of substantive medical evidence that went beyond

merely assisting decisionmaker 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

82 Burton’s earlier report had concerned the economic and

technological feasibility of the proposed PEL of 100 ug/m?.

Ashford had first been retained to study the economic feasi-

bility of the medical removal provision, but also submitted

a preliminary report on the correlation between blood-lead

and air-lead. Both Burton and Ashford testified at length

during the public hearings.

42a

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 docu-

ments.

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 rule-

making 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? *

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 de-

liberative 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 ques-

tion of the legal propriety of OSHA’s reliance on DBA

and CPA is foreclosed by our earlier conclusion that

83 LIA contends that because the lead standard threatened

enormous costs for the industries and a windfall to employees

through the medical removal provision, the rulemaking re-

mains subject to the ex parte contact doctrine even under

the narrower formulations in Judge MacKinnon’s special

concurring opinion in Home Boz Office, Inc. v. FCC, supra

note 20, 567 F.2d at 61, and in Action for Children’s Tele-

vision, Inc. v. FCC, supra note 29, 564 F.2d at 477. But

virtually any important new regulation will be expensive for

some parties and economically beneficial to others, and we do

not think the limiting principles suggested in these cases can

-sensibly apply to a general rulemaking where distinct parties

are not seeking or competing for specific legal privileges of

great monetary value.

43a

neither the APA nor the Home Box Office doctrine im-

poses a separation-of-functions requirement on the agen-

cies. 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.

Despite some suspicious phrases singled out by LIA, a

few examples from the documents reveal that the con-

sultants’ 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 ‘an-

swers’ 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 “[rJeferences 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.** Finally, in a released segment of its

actual post-hearing report DBA states unmistakably,

“Where sufficient information is not available in the rec-

84 ““Tetermine what conclusions the reulemaking [sic] record

will support on the following questions and indicate the rela-

tive weight of the evidence supporting these conclusions.”

ALD 100. This instruction is also the context for another

actually harmless sentence seized on by LIA: “Do Not rely

only on explicit commentary, but make all possible and rea-

sonable inferences the evidence will allow.” Id. (emphasis

in original).

44a

ord from which to draw conclusions, no analysis is pre-

sented.” ALD 108.

The OSHA contract with CPA and Ashford may seem

to give the consultant a broad mandate—“to conduct ad-

ditional 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 blcod lead levels.” ALD 11. 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

35 The Vaughn index, Vaughn v. Rosen, 484 F.2d 820 (D.C.

Cir. 1973), to the DBA report submitted in the Freedom of

Information Act litigation over the consultants’ reports, see

Lead Industries Ass’n, Inc. v. OSHA, 610 F.2d 70 (2d Cir.

1979), reveals that OSHA continually expected DBA to “mar-

shal” and “comment on” the evidence in the record, but

never to supply new evidence. ALD 88-97. LIA points to a

section heading entitled “Impact on Cost by Use of an Ex-

panded Definition of Technical Feasibility,” ALD 91, but the

language is too general to suggest that DBA proffered a new

legal argument. The phrase “expanded definition” may mean

nothing more than a new analytic perspective on the evidence.

36 OSHA now contends that the “post-hearing comment”

referred to is actually a part of the record, in the form of a

letter to OSHA at SA 2235A.

45a

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.

When performed by agency staff, this sort of sophisti-

cated review of evidence has always been recognized as

legitimate participation in the deliberative process. Mor-

gan I, supra, 298 U.S. at 481-482; Montrose Chemical

Corp. v. Train, 491 F.2d 68, 69-71 (D.C. Cir. 1974) ;

Braniff Airways, Inc. v. CAB, supra, 879 F.2d at 461.

And the circuit courts, in applying the intra-agency ex-

emption 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 10380,

1032-1033 (5th Cir. 1972), cert. denied, 410 U.S. 926

(1973), where the court also noted, as we do here, that

the agency had been specifically empowered by statute

to hire consultants.

Recognizing that the principle of Exemption 5 of the

FOIA bears generally on the question of post-hearing con-

tacts with consultants, we find ourselves fortunate in

having before us Judge Friendly’s recent reports at issue

in this case. After petitioning for review of this rule-

making, 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 con-

cluded that both the DBA report and the CPA report

contributed to the process by which the Assistant Secre-

46a

tary made her final decision. He conceded that the re-

ports 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. Jd. at 83. He sug-

gested, moreover, that to the extent the reports drew

inferences from and weighed the evidence they were more

truly “deliberative” and thus better candidates for ex-

emption than mere summaries of the record. Id.

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 deci-

sionmaker.” Jd. at 84. Thus, the earlier participation

of these consultants as expert witnesses in no way dis-

qualifies 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 compro-

mise among the contending industry forces, rather than

by exercise of the independent discretion in the public

interest” of agency officials. Home Bow Office, Inc. v.

FCC, supra, 567 F.2d at 53.*"

8? We must underscore the two factors that undermine

LIA’s challenge on the facts of this case: The agency’s

alleged improper contacts were with outside parties who (1)

had no direct financial stake in the outcome of the rulemaking

and (2) aided in the deliberative process but did not offer

new hard evidence. Thus we need not decide if the result

would change if the first factor changed—if outside parties

47a

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* standard. How-

ever, 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

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 ad-

ministrative 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—‘ade-

quacy.”

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 gen-

eral requirement for informal rulemaking in 5 U.S.C.

§ 553(b) (8) (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 inter-

who were financially interested in the outcome communicated

ex parte with the agency in the purported role of aides to the

deliberative process.

48a

ested

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