# Petition — Lead Industries Ass'n v. Donovan > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1105%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 453 U.S. 913 ## Text 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. i 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 ii 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 =~ vi 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 2 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. 2 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 3 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 4 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. 5 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 “. 6 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. 7 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 8 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. 9 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 >». 10 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 1] 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 >> 12 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. 13 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- 14 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”). 15 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. 7+ 16 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. 17 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 19 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. 20 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 21 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 Register. See Synthetic Organic Chemical Mfrs. Assoc. v. Brennan, 506 F.2d 385, 389 (3d Cir. 1974), cert. denied, 423 U.S. 830 (1975). OSHA did not observe that requirement in this case. 22 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. 23 (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”). 24 “(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 25 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 26 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 la 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 * V. 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. 2a 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. 3a 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, 4a 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. Sa 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 7a 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. 8a 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. 9a 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1105%3A1. Public record. Not legal advice.