Opposition — Lead Industries Ass'n v. Donovan

~~

No. 80-1134

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

LEAD INDUSTRIES ASSOCIATION, INC., et al.,

Petitioners,

Vv.

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,

et al., and INTERNATIONAL UNION, UNITED AUTOMO-

BILE, AEROSPACE AND AGRICULTURAL IMPLEMENT

WoRKERS OF AMERICA, UAW,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the District of Columbia

BRIEF IN OPPOSITION FOR UAW

JOHN A. FILLION

General Counsel

M. JAY WHITMAN ,

Associate General Counsel

CLAUDE D. MONTGOMERY

Assistant General Counsel

8000 East Jefferson Avenue

Detroit, Michigan 48214

(313) 926-5216

Counsel for UAW

WILSON - EPES PRINTING CO.. Inc. - 789-0096 - WASHINGTON. D.C. 20001

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ame nee Aeneas ©

COUNTERSTATEMENT OF QUESTIONS PRESENTED

1. Can OSHA, consistent with its statutory authority,

promulgate an occupational health regulation for a toxic

substance which requires certain industries to make

major engineering and work practice control changes?

2. Did OSHA’s promulgation of a workplace health

standard, pursuant to the notice and comment rulemak-

ing requirement of the Occupational Safety and Health

Act, deny due process to affected parties:

(a) When it specifically used consultants to analyze

an informal hearing record for possible evidentiary

support for a given standard?

(b) When it promulgated a standard which differed

from the one proposed?

8. Can OSHA require employers to remove workers

whose bodies are unnecessarily contaminated with a toxic

substance to prevent further function deterioration, and

simultaneously protect the economic status of workers

who cannot lawfully oppose removal?

(i)

>

ii

LIST OF PARTIES

The names of the petitioners and intervenors who

sought review of the revised permanent standard for oc-

cupational exposure to lead, promulgated by the Occupa-

tional Safety and Health Administration at 43 FED. REG.

53067, are not correctly stated in Petitioners Brief at ii

n.l. The International Union, United Automobile, Aero-

space and Agricultural Implement Workers of America,

UAW, intervened below, in No. 79-1048 and consolidated

cases, on the side of the Secretary of Labor."

* Some confusion has been engendered by the fact the United

Steelworkers of America, AFL-CIO-CLC, who were petitioners in

No. 79-1048 below, cross-intervened on the side of the Secretary

in the cases consolidated with No. 79-1048. The Oil, Chemical and

Atomic Workers International Union intervened as a petitioner

after the cases were consolidated. The National Constructors

Association also intervened as a respondent in the consolidated

cases in response to the OCAW intervention to preserve the Secre-

tary’s decision not to regulate the construction industry.

TABLE OF CONTENTS

Counterstatement of the Questions Presented ...............

I I 1 salmilnigionesaabdeatineedeptees

et Wr OD Ls cenksdnacbnoccsdonsenanebesosiauapsbece

Opinions Below Ia tse AS ea es ee A RE OE

Counterstatement of the Case ........................-----+- watcasenve

Summary of Argument ............................ccccccosesscoccesseeveese

PING iinecrnindsnsicesececessssecnsnsnenesanovercencssooasverinesnsanonnipives

I. The Court Below Has Not Expanded OSHA’s

Authority to Promulgate New Occupational

Health Standards ..............0....2000....ccsccccccccccccccseseee

II. OSHA’s Reliance on Outside Consultants Was

Appropriate and Lawful ...............-------------------++++-

III. Medical Removal Protection Benefits are a Law-

RESETS ALI

(SRE SIO LL OEE CADRE TEE OTERO T.

(iii)

Page

iv

INDEX OF AUTHORITIES

Cases

AFL-CIO v. Brennan, 530 F.2d 109 (8rd Cir.

| SE RE TEGRETOL SETS 7 ta EO

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

1979), cert. granted sub nom., American Textile

Manufacturers Institute v. Marshall, Nos. 79-

SEES IR RE Ea AG A

American Iron & Steel Institute v. EPA, 568 F.2d

LS See Ona

American Iron & Steel Institute v. OSHA, 577

pf 4 Bs Me | | Ease en

American Petroleum Institute v. OSHA, 581 F.2d

493 (5th Cir. 1979), aff’d on other grounds, 445

US. , 100 S. Ct. 2844 (1960) .........................

Chrysler Corp. Vv. Dept. of Transportation, 515

ES 8 oe . /( ) eee

GAF Corp. v. OSHRC, 561 F.2d 918 (D.C. Cir

et i 0 sccimiathindsinnenscoccags

Industrial Union Department, AFL-CIO v. Hodg-

son, 499 F.2d 467 (D.C. Cir. 1974) -..................

Industrial Union Department v. American Petro-

leum Institute, 448 U.S. ——, 100 S. Ct. 2044

GER DC EE TI ERSTE Ss 55 Ec

International Telephone & Telegraph Corp. v. Local

134, International Brotherhood of Electrical

Workers, 419 U.S. 428 (1975) ...............-..-.....-...

Society of Plastics Industry, Inc. v. OSHA, 509

F.2d (2nd Cir.), cert. denied, 421 U.S. 992

EEOC SE ASE we a a

South Terminal Corp. v. EPA, 504 F.2d 646 (1st

a ceppeienati

Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, 485 U.S. 6519

ESSE SA SAREE RENE RC CSNDL ES a OD

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

Page

6,8

4,8

5, 10

V

INDEX OF AUTHORITIES—Continued

Statutes Page

IE, LOD CBD cvccneccascaanescccrccccccccccescosctooenenese 9

I, MME GE BOs ic cinscesccnssnecescsncsscncserccsencvncencees passim

Regulations

I I aoc ccaccnvencsnacanancsesesscecsesshoseeee 5, 7,9

Miscellaneous

40 FED. REG. 45934 et seq. ......2...22222.222222-2eeceeeeeeeees 9

48 FED. REG. 52952 et seq. -.....2.2..22...ccccceeeeeeeeeeeeeee passim

46 FeD. REG. 6184 et seq. ..........2..2...2.2..22-20-00eeeeeeeee 4,7

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-1134

LEAD INDUSTRIES ASSOCIATION, INC., et al.,

a Petitioners,

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,

et al., and INTERNATIONAL UNION, UNITED AUTOMO-

BILE, AEROSPACE AND AGRICULTURAL IMPLEMENT

WORKERS OF AMERICA, UAW,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the District of Columbia

BRIEF IN OPPOSITION FOR UAW

OPINIONS BELOW

The opinions of the Court of Appeals are unofficially

reported at 8 BNA OSHC 1810, and appear in the Ap-

pendix to the Lead Industries Association Petition

(pages la to 286a—cited Pet. at —.)

COUNTERSTATEMENT OF THE CASE

Lead is a natural soft metal, mined from the earth’s

crust, smelted, widely distributed and used by a variety

of manufacturing industries. In its inorganic form, lead

is also an ancient and well-known poison. Preamble, 43

Fep. Rec. 52952 col. 3.1 The medical community has

become increasingly concerned with effects of prolonged .

lead absorbtion throughout the Twentieth Century. Rec-

ognized public health organizations have reflected this

concern by recommending ever lower levels of workplace

exposure to lead.”

Medical science has identified a range of hazards

passed by lead absorbtion into the blood stream and bone

marrow. Classic, severe lead intoxication causes vomit-

ing, stupor, irritability and convulsion leading to seiz-

ures, comas, heart attacks and death. (52954/2.) Less

well known, lead absorbtion can cause impotence and

sterility in men; and decreased fertility, and abnormal

menstrual and ovarian cycles in women. (52954/2).°

In the process of investigating the health effects of

lead, OSHA found that the body burden of lead should

be kept below 50 ug/100 g* to provide a margin of

safety against the adverse neurological effects of lead

1 Hereafter the preamble will be cited as “(52952/3).”

2 Earlier in this century, airborne lead exposure was thought

acceptable at levels of 500 micrograms per cubic meter of air.

(500 ug/m*). In 1933, the U.S. Public Health Service recommended

an exposure goal of 150 ug/m* (52952/3). Although the newly

created Occupational Safety and Health Administration adopted

the national consensus standard of 200 ug/m? in 1971 as mandatory

minimum, the National Institute for Occupational Safety and

Health (NIOSH) recommended a 150 ug/m* permissible exposure

limit (PEL) in 1973 (52953/1). NIOSH recommended lowering

the PEL still further in 1975 (52953/1).

8 OSHA identified four major categories of health effects: (a)

Heme synthesis inhibition—decreased body capacity to carry oxygen

in the blood (52955/1—52957/1); (b) neurological effects—degen-

eration of both the central and peripheral nervous systems

(52957/1-52958/2) (c) renal system—kidney damage and failure

(52958/2-52959/1); reproductive effects (52959/1-52960/3).

450 micrograms per liter of whole blood.

3

absorbtion; and below 40 ug/100 g to do the same for

the heme synthesis, renal system and reproductive sys-

tem problems which are associated with lead absorbtion.°®

OSHA began its standard setting process on October

3, 1975, with a proposal for a new permanent lead stand-

ard which would, among other things, set the PEL at

100 ug/m*. 40 FED. Rec. 45934. Informal hearings on

the proposed standard began in 1977, in Washington,

D.C., and were later expanded to include hearings on

April 26, 1977, in St. Louis, Missouri, and on May 3,

1977, in San Francisco, California. A special hearing

was held, beginning November 1, 1977, on certain issues

relating to medical removal protection. It was not until

three years after the process had begun that OSHA

promulgated the final standard at issue in this proceed-

ing (52952/1). See, (53007/1), 29 C.F.R. § 1910.1025.

The key features of the final standard as promulgated

are: (1) a PEL of 50 ug/m*, which exposure is to be

achieved through the use of engineering, work practice,

and administrative controls; (2) extended implementa-

tion schedules for engineering controls; (3) interim use

of respirators; (4) multiple physician review program;

and (5) mandatory removals and consequent removal

protection benefits program.

Nothing in this program was new to the world of

occupational health regulation,® yet industry petitioners

attacked the program as being far too strong, while the

USWA and the OCAW attacked it as too weak. The

5 See, 52958/2; 52955/3; 52959/1; and 52960/8 respectively.

6 For example, primary reliance on engineering controls was a

key feature in the Coke Oven Standard, see, American Iron & Steel

Institute v. OSHA, 577 F.2d 825 (8rd Cir. 1978); while a medical

removal program and removal protection benefits were part of the

Cotton Dust Standard, see, AFL-CIO v. Marshall, 617 F.2d 636

(D.C. Cir. 1979), cert. granted No. 79-1429 & 79-1583.

4

court below affirmed the standard as a whole, and for

the major industries such as primary and secondary

smelting, but remanded .the issues of feasibility for cer-

tain specific industries* with directions to return in six

(6) months. On January 21, 1981, OSHA published its

feasibility findings for the remand industries, amending

the standard to give the primary steel and automobile

industries from three to seven years to comply with the

final PEL. 46 FEp. REG. 6134. These findings also have

been submitted to the court below.

LIA’s petition was filed prior to publication of OSHA’s

“Supplemental Statement of Reasons” for the remand

industries.

SUMMARY OF ARGUMENT

The Courts of Appeals argue that OSHA has the au-

thority to require industries to engage in large scale

undertakings to improve the quality of the ambient air

workers breathe. The Act empowers the Secretary of

Labor to identify control technologies and require indus-

try to choose among them. Any statutory issues, which

are not settled, concerning the proper role of cost in

industry standard setting will be resolved by this Court’s

review of AFL-CIO v. Marshall, 617 F.2d 686 (D.C. Cir.

1980), cert. granted sub nom., American Textile Manu-

facturers Institute v. Marshall, Nos. 79-1429, 79-1583.

The Act permits the Agency to engage consultants

whose sole role is to review and analyze the sufficiency

of the administrative record. The holding below, that

and agency is not restricted in the use of consultants in

the absence of express statutory limitations, is consistent

with Vermont Yankee Nuclear Power Corporation v.

Natural Resources Defense Council, 485 U.S. 519 (1978).

7 Among the larger industries for which the court remanded the

proceedings were automobile manufacturing, non-ferrous foundries,

telecommunications. i

5

The Circuits have also consistently allowed an agency

to promulgate a final rule which is materially different

from the one proposed if (i) all parties were advised of

the proceedings in the original notice, and (ii) the mat-

ter subject to regulation was sufficiently disclosed for

those participating to be able to comment. The applica-

tion of these principles by the court below was accurate,

and does not warrant this Court’s review.

OSHA has the statutory authority to acquire transfer

of workers away from high lead exposure areas in the

workplace. OSHA’s manner of implementing this au-

thority with a maintenance of benefits requirement is

consistent with the underlying purpose of the statute,

Whirlpool Corporation v. Marshall, 445 U.S. 1 (1980).

Further, the mandatory nature of removal is consistent

with Congress’ desire, as identified by this Court in

Whirlpool, that employees should not have the risk-free

right to voluntarily absent themselves from work.

ARGUMENT

I

The Court Below Has Not Expanded OSHA’s Authority

to Promulgate New Occupational Health Standards

In 1971, Congress granted OSHA broad authority to

regulate workplace heaith and safety. Occupational

Safety and Health Act, 29 U.S.C. § 651 et seg. Congress

specifically stated its purpose was

to assure so far as possible every working man and

woman in the Nation safe and healthful working

conditions... [29 U.S.C. § 651 (b).]

The new permanent standard for occupational exposure

to lead, 29 C.F.R. § 1910.1025, is a fine example of the

Secretary’s efforts to achieve that monumental goal.

6

The Act requires all toxic substance standards to be

feasible, 29 U.S.C. § 655(b) (5). The Secretary analyzed

the issue of feasibility, within the meaning of the Act,

by applying the distinctions between technological and

economic feasibility inherent in the statute and well de-

veloped by the Circuits by the time the standard was

promulgated. E.g., Industrial Union Department, AFL-

CIO v. Hodgson, 499 F.2d 467 (D.C. Cir. 1974) ; Society

of Plastics Industry, Inc. v. OSHA, 509 F.2d 1801 (2nd

Cir.), cert. denied, 421 U.S, 992 (1975); and American

Iron Steel Institute v. OSHA, 577 F.2d 825 (8rd Cir.

1978).

In analyzing technological feasibility, OSHA concluded:

that rigorous and innovative application of known

conventional technologies for isolating workers from

the sources of exposure to toxic substances will, in

almost all cases, enable employers to comply with

the standard. . . . In some cases. . . reliance on new

technology. [ (52978/1).]

The lower court concluded that this decision was based

on substantial evidence for the “major industries” and

some others, but remanded for a fuller discussion of

feasibility as to certain others. Pet. 246a-247a.

It was Mr. Justice Clark, sitting by designation, who

first emphasized that in applying this Act:

The Secretary is not restricted by the status quo.

He may raise standards which require improve-

ments in existing technologies or which require the

development of new technology,.. [SPI v. OSHA,

509 F.2d at 13091.)

Later decisions complimented the Second Circuit’s view

that OSHA was a “technology forcing” statute; e.g.,

AFL-CIO v. Brennan, 580 F.2d 109, 121 (8rd Cir. 1975).

The court below agreed with this assessment of the

statute, and did nothing more than add flesh to the doc-

7

trine in the context of a standard which deliberately gave

certain industry quite extensive periods of time in which

to comply with the new PEL. See, Table I, 29 C.F.R.

§ 1910.1025.®

The technological feasibility issues do not, therefore,

present this Court with the need to resolve any important

or disputed questions. Further, consideration of the Sup-

plemental Statement of Reasons, 46 FED. REG. 6134,

may, to the extent it is deemed necessary by this Court,

eliminate all doubt as to the lower court’s view of tech-

nological feasibility.

Similarly, this Court can stay its hand with regard

to the economic feasibility and cost-benefit issues. First,

this Court’s decision in Industrial Union Department Vv.

American Petroleum Institute, 448 U.S. ——, 100 S. Ct.

2044 (1980), does not employ such a requirement. To

the contrary, it implies the “reasonably necessary” lan-

guage found in 29 U.S.C. § 652(8) is satisfied with a find-

ing of “significant risk.” Although there is a clear split

among the Circuits on the need for a cost-benefit analysis

by the Secretary as part of his rulemaking,’ this Court

has already heard argument in a case which should be

dispositive of all OSHA cost issues. American Textile

Manufacturers Institute v. Marshall, Nos. 79-1429, 79-

1583.

8 Fundamentally, petitioners object to holding by the court of

appeals that OSHA may make findings about what they (industry)

can or will do. Pet. at 10-11. Yet, in the absence of immediately

usable technology, the Secretary either must be able to make such

findings or must give up the business of controlling exposure and

relegate himself to regulating unavoidable effects of exposure.

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

1979), cert. granted sub nom., American Textile Manufacturers

Institute v. Marshall, No. 79-1429, 79-1583, holding no cost-benefit

analysis required with American Petroleum Institute v. OSHA, 581

F.2d 498 (5th Cir. 1979), aff'd on other grounds 445 U.S. ——,

100 S. Ct. 2844 (1980).

8

II

OSHA’s Reliance on Outside Consultants

Was Appropriate and Lawful

Petitioners assert OSHA engaged in impermissible ex

parte contacts after the record was closed. Pet. at 23.

However, petitioners can point to nothing in the Act or

the Secretary’s regulations which make ex parte contacts

unlawful. In the absence of statutory requirements, an

agency need not volunteer more “due process” than its

regulations require. Vermont Yankee Nuclear Power

Corp. v. National Resources Defense Council, 435 U.S.

519, 546 (1978). |

The Act sets up a structure for informal rulemaking,

not adjudication. 29 U.S.C. § 655(b). The structure has

been classified as “hybrid” because, on one hand, OSHA

regularly uses hearing officers to compile a transcript

but, on the other hand, also responds to more traditional

forms of notice and comment. JUD v. Hodgson, 499 F.2d

at 472-473. The Act also specifically empowers the Sec-

retary to employ “experts and consultants” to aid the

fulfillment of his responsibilities. 29 U.S.C. § 656(c) (2).

As the appeals court recognized, such Act does not re-

quire a separation of functions, that the Secretary could

not use consultants to analyze the record and provide a

coherent rationale for his decision. Pet. 4la-48a. The

APA, to the extent it is applicable, also does not require

such a separation in a non-adjudication context. IJnter-

national Telephone & Telegraph Corp. v. Local 134, In-

ternational Brotherhood of Electrical Workers, 419 U.S.

428 (1975).

There is no reason for this Court to involve itself in

the factual determination of the role of consultants, since

the court below applied the correct principles.

There is likewise little reason for this Court to rehash

the settled principle that an agency may legitimately

9

promulgate a rule which differs from that which was

originally proposed; e.g., GAF Corp. v. OSHRC, 561 F.2d

913 (D.C.Cir. 1977) ; South Terminal Corp. v. EPA, 504

F.2d 646 (1st Cir. 1974); American Iron & Steel Insti-

cute V. EPA, 568 F.2d 284 (8rd Cir. 1977); Chrysler

Corp. v. Dept. of Transportation, 515 F.2d 1051 (6th

Cir. 1975). As recognized by the lower court, the key

factors are whether the relevant parties were advised of

the proceedings, American Iron & Steel Institute v. EPA,

568 F.2d at 293, and whether the subject matter to be

regulated was sufficiently disclosed to forewarn of the

kinds of comments which would be relevant.'® Pet. at

47a-48a.

The holding below is an application of settled prin-

ciple to specific facts. As such, it does not present this

Court with an important federal question.”

Ill

Medical Removal Protection

Benefits are a Lawful Innovation

The Court of Appeals characterized the medical re-

moval protection program as “the true center of the

controversy.” Pet. at 67a. See, 29 C.F.R. § 1910.1025

(k) (2). OSHA promulgated the removal program be-

cause (a) the PEL provided “little margin for safety,”

10 The Act only required OSHA to publish a proposed rule in the

FEDERAL REGISTER, 29 U.S.C. § 655(b) (2), but 5 U.S.C. § 553 (b) (8)

also requires notice of the terms, substance, or issues involved.

11The proposed PEL was 100 ug/m® while the final PEL was

50 ug/m*. The. difference reflects the “margin of safety” issue of

which all parties were formally advised. 40 FED. REG. 45934/1-2.

The parties were also advised the question of “sub-clinical effects”

as distinguished from clinical lead poisoning effects might neces-

sitate a different permissible exposure limit in the final standard.

40 Feb. Rec. 45955/1.

It is this kind of broad advance warning which petitioners un-

fairly characterize as “notice by ambush.” Pet. at 22.

Ss

10

and because (b) removal is necessary to bolster the in-

evitable shortcomings of interim respiratory protection.

(52972/3-52973/1.) Noting that “temporary medical

removals depend on voluntary and meaningful worker

participation” in a surveillance program (52973/1),

OSHA provided a benefit protection mechanism to ensure

that economic fear would not undermine the health pro-

gram and to ensure the proper allocation of cost (52973/

1-3).

The Court of Appeals correctly reasoned OSHA had

the authority to promulgate such a standard for high

lead exposure because the Secretary has specific statutory

authority to develop “innovative” approaches to health

issues, 29 U.S.C. § 651(b) (5), to prescribe “suitable”

hazard control procedures, 29 U.S.C. § 655(b) (7), and

his broad grant of power to promulgate “necessary” rules

and regulations to carry out his responsibilities. 29

U.S.C. § 657(g) (2). Pet. at 68a-69a.

The court’s reasoning also is consistent with last

term’s decision in Whirlpool Corp. v. Marshall, 445 U.S.

1 (1980). In two crucial respects, the Secretary’s rea-

sons for implementing the program rationally further

the Acts purpose of assuring safe and healthful working

conditions. The standard requires workers to be removed

whose health may be seriously threatened by continued

exposure at existing levels. It also provides employers

an incentive to clean up the air which is independent of

the citation and penalty procedures. 29 U.S.C. § 659-660.

Equally important, the rule does not implicate Con-

gress’ concern that workers should not have a risk-

free option to refuse hazardous work. Whirlpool v. Mar-

shall, supra. In these circumstances, a worker’s absence

is not caused by any affirmative act on his or her part.

Rather the agency has ordered the employer to remove

the worker by regulation.’* Neither the worker nor the

12 Interestingly, LIA does not challenge OSHA’s ability to require

removal in the first instance.

11

employer has any choice, except to the extent a worker

decides to cooperate with the medical surveillance pro-

gram. There is, therefore, no reason for this Court to

review the decision.

CONCLUSION

For the foregoing reasons, the Court should deny the

Petition for Writ of Certiorari.

Respectfully submitted,

JOHN A. FILLION

General Counsel

M. JAY WHITMAN

Associate General Counsel

CLAUDE D. MONTGOMERY

Assistant General Counsel

8000 East Jefferson Avenue

Detroit, Michigan 48214

(318) 926-5216

Counsel for UAW

February 6, 1981