# Appendix — Synthetic Organic Chemical Manufacturers Ass'n v. Brennan > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0559%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1975 - **Citation:** 420 U.S. 973 ## Text la APPENDIX A UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 74-1129 SyNTHETIC ORGANIC CHEMICAL MANUFACTURERS AssociaT 1075 Central Park Avenue Scarsdale, New York 10583 Dry Coton MANUFACTURERS AssociaTION, INo, 061 Franklin Avenue Nutley, New Jersey 07110 American Dye Manuractvrers Institute, Inc. 74 Trinity Place New York, New York 10006 AMERICAN Cyanamip Company Bound Brook, New Jersey 08805 InmMont CorPoRATION 1255 Broad Street Clifton, New Jersey 07016 Union Carsine CorPorRATION 270 Park Avenue New York, New York 10017 CELANESE CORPORATION 522 Fifth Avenue New York, New York 10036 ALLIED CHEMICAL CoRPORATION Post Office Box 1219 R Morristown, New Jersey 07960 Dow Cuemicat U.S.A. 2020 Abbott Road Central Midland, Michigan 48640 2a AEROJET-GENERAL CORPORATION Post Office Box 702 Elmonte, California 91734 Prister CHEMICAL, I Nc. Ridgefield, New Jersey 07656 Crompton & KNowLes CorPoRATION Route 208 Fair Lawn, New Jersey 07410, Petitioners, Vv. Peter J. BRENNAN, Seeretary, Department of Labor, and Joun H. Stenper, Assistant Seeretary of Labor for Occu- pational Safety and Health, Respondents. Ow Petition ror Review or Action OF THE ASSISTANT SECRETARY OF LABOR FOR OCCUPATIONAL SAFETY AND HEALTH Argued June 13, 1974 Before Statey, Gispons and Weis, Circuit Judges. Robert C. Barnard Charles F. Lettow Donald L. Morgan Cleary, Gottlieb, Steen & Hamilton Washington, D.C. Attorneys for Petitioners Stephen F. Eilperin Department of Justice Michael H. Levin Department of Labor Michael H. Stein : Washington, D.C. Attorneys for Respondent ss | OO act gereaerene, 3a OPINION OF THE COURT (Filed August 26, 1974) By Sratey, Circuit Judge. This case is before the court upon petition to review an order of the Assistant Secretary of Labor for Occupational Safety and Health, published on January 29, 1974, 39 Fed. Reg. 3756, issuing permanent occupational health stand- ards which regulate, inter alia, employee exposure to solid or iiquid mixtures containing one percent or more of cthyleneimine (‘‘EI’’). See 29 C.F.R. §1910.93lc.1 This court has jurisdiction to review and set aside these stand- ards pursuant to §6(f) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 655(f) (‘‘ Act’’). The standards in question are part of a group of per- manent standards simultaneously issued pursuant of § 6(b) of the Act. 29 U.S.C. §655(b). They were derived from similar emergency temporary standards issued on May 3, 1973, 38 Fed. Reg. 10929. This court has previously vacated and remanded to the Occupational Safety and Health Ad- ministration (*‘‘OSHA’’) the temporary standards in so far as they applied to EI and one other chemical. Dry Color Manufacturers’ Association, Inc. v. Department of Labor, 486 F.2d 98 (C.A. 3, 1973). We must now consider the permanent standards relating to EI. On review the petitioners request that the court set aside OSHA’s standards applicable to EI. They challenge the validity of the standards on three principal grounds. They maintain that there is not substantial evidence to show that EI is carcinogenic; that the record does not sup- port the particular EI standards; and that the Secretary 1 We are presently considering only the EI standards. The pe- tition as originally filed requested review of the standards for other substances as well as those relating to EI. This court, how- ever, ordered a separate consideration of the EI standards and stayed them pending this determination of the merits of the case. 4a failed to make sufficient findings of fact or to provide suf- ficient statements of reasons for the standards, We deal first with the petitioners’ last contention. Sub- section 6(e) of the Act provides: ‘“‘Whenever the Seeretary promulgates any stand- ard, ... he shall include a statement of the reasons for such action, which shall be published in the Federal Register.’? 29 U.S.C. § 655(e). As this court has previously stated, to satisfy subsection G(e) the statement of reasons should indicate which data in the record is being relied upon, why that data shows the substances regulated are harmful, and why~the par- ticular standards were chosen. Dry Color Manufacturers’ Assn., Ine. v. Department of Labor, 486 F.2d at 106. In that case a temporary emergency standard for the control of EI was invalidated by this court because the Secretary, in promulgating it, had not provided an adequate statement of reasons. In the instant case, the statement of reasons offered by OSHA, published January 29, 1974, 39 Fed. Reg. 3756, consisted in part of the finding that El was potentially carcinogenic to humans. In addition, according to OSHA, the case for El’s carcinogenicity rested on the extrapola- tion to humans of the findings of two animal studies. The Seeretary justifies such an extrapolation on the basis of the April 22, 1970 Report of the Ad Hoe Committee on the Evaluation of Low Levels of Environmental Chemical Carcinogens to the Surgeon General. We have earefully examined the statements as well as those relating to the adopted standards themselves and conclude that they sat- isfy the requisites of subsection 6(e). We turn now to a consideration of the evidence in the reeord. Subsection 6(f) directs courts reviewing a standard that ‘‘[t]he determinations of the Secretary shall be con- elusive if supported by substantial evidence in the record considered as a whole.’’ 29 U.S.C. § 655(f). See Industrial 5a Union Department, AFL-CIO v. Hodgson, — I°.2d — (C.A. D.C. 1974) ; Associated Industries of New York State, Ine. yv. United States Department of Labor, 487 F.2d 342 (CLA. 2, 1973). We find it extraordinarily difficult to apply this standard in this case. Section 6(a) of the Act directs the Seeretary of Labor to promulgate by rule an oecupational safety or health ‘standard which assures the greatest pro- tection of the safety or health of the affected employees.”’ 29 U.S.C, $655(a). Section 6(b)(5) of the Act, 29 U.S.C, £ 655(b)(5) directs that “The Seeretary, in promulgating standards dealing with toxie materials or harmful physical agents .. . shall set the standard which most adequately assures, to the extent feasible, on the hasis of the best available evidence, that no employee will suffer material impair- ment of health or functional capacity even if such em- ployee has regular exposure to the hazard dealt with by such standard for the period of his working life.”’ Because the Dry Color case turned on noncompliance with ¢6(e), it did not present us with an occasion to discuss the standard for review of informal rule making by the Seere- tary under the Act. However, the instant case requires that we do so. It is made clear in ¢6(b) that §6(a) standards may be adopted by notice and comment rule making analogous to that provided for by ¢4 of the Administrative Procedure Act, 5 U.S.C. $553. Yet the quoted language of § 6(f) appears to limit judicial review to the scope of review which ordinarily applies to administrative determinations result- ing from formal adjudications. See 5 U.S.C, ¢ 706(2)(F). Compounding the confusion, § 10 of the Act, 29 U.S.C. § 659, provides for adjudications, § 11, 29 U.S.C. § 660, provides for judicial review of adjudications, and the wording of the standard for review of adjudieatory findings set forth in ¢11(a) is virtually the same as that for review of informal rule making set forth in §6(f). See Brennan v. Occupa- tional Safety & Health Review Commission ( Hanovia Lamp), No. 73-1131 (C.A. 3, filed—1974). Tt is clear that ROGER LM PMSF dhe ang SU UTA RN 6a application of the substantial evidence test to informal rule making was a deliberate legislative compromise be- tween the House and Senate versions of the bill which be- came law. See the legislative history in Judge Friendly’s opinion in Associated Industries of New York State, Ine. v. United States Department of Labor, 487 F.2d 342, 348-49 (C.A. 2, 1973). How a reviewing court applies the substantial evidence test in reviewing quasi-legislative informal rule making is an intriguing problem which is just beginning to generate what will prove to be, we suspect, an extensive literature. In Associated Industries of New York State, Inc. v. United States Department of Labor, supra, Judge Friendly sug- gests that the difference between the substantial evidence test and the more traditional abuse of discretion test in the context of informal rule making may be largely semantic. 487 F.2d at 349-50. In Florida Peach Growers Association, Inc. v. United States Department of Labor, 489 F.2d 120, 129 (C.A. 5, 1974), Judge Roney writes: ‘(I]t seems clear that even with the required substan- tial evidence test, our review basically must determine whether the Secretary carried out his essentially legis- lative task in a manner reasonable under the state of the record before him.’’ In Industrial Union Department, AFL-CIO v. Hodgson, — F.2d — (C.A. D.C. 1974), Judge MeGowan distinguished those rule making issues which were susceptible of resolu- tion on a factual record, as to which the court would review for substantial evidence and those issues which by their nature were not capable of such resolution but represented policy judgments. As to the latter, Judge McGowan sug- gested that the Seeretary’s policy judgment would be affirmed if he indicated that factual certainty was not pos- sible and identified rationally the controlling considerations. But cf. Environmental Defense Fund, Inc. v. Environ- mental Protection Agency, 489 F.2d 1247 (C.A. D.C. 1973) 7a and International Harvester Co. v. Ruckelshaus, 478 F.2d 615 (C.A. D.C. 1973). This case is a good illustration of the difficulty of at- tempting to measure a legislative policy decision against a factual yardstick. OSILA’s position with respect to EI is bottomed on an extrapolation from data gathered in two animal studies. The first is a study carried out in 1954 by Walpole which concluded that EI may be regarded as car- cinogenie in rats and mice.*_ The Innes study, the second upon which OSHA relied, concluded that mice under ex- perimental exposure to EI developed tumors with ‘‘malig- nant potentiality.’’* The extrapolation from the data gathered in these rodent experiments to humans is justified by the Report of the Ad Iloe Committee on the Evaluation of Low Levels of Environmental Chemical Careinogens to the Surgeon General. This report states: ‘Any substance which is shown conclusively to cause tumors in animals should be considered carcino- genic and therefore a potential cancer hazard for man.’’ If the issue to be reviewed were merely whether EI was carcinogenic in rats and mice, we believe that we could point to the Walpole and Innes studies and safely conclude that the Seeretary’s determination of animal carcinoge- nicity was supported by substantial evidence. But the extra- polation of that determination from animals to humans is not really a factual matter. The Seeretary’s $6(e) state- ment puts it thus: ‘‘Extrapolation of results obtained by animal experi- mentation-is alleged to be vitiated by several considera- tions: (a) That certain cancers are specific only to 2 Walpole, Roberts, Rose, Hendry, and Homer, Cytotoxic Agents: IV. The Carcinogenic Actions of Some Monofunctional Ethylenei- mine Derivatives, ).Brit. J. Pharmacol. 306 (1954). % Innes, et al., Bioassay of Pesticides and Industrial Chemicals for Tumorigenicity in Mice: A Preliminary Note, 42 J. Nat’l. Cancer Inst. 1101 (1969). 8a some species; (b) that the conditions of animal experi- ments are out of proportion to, and not consistent with, conditions prevailing in industrial exposure; and (c) that no cancers have yet been detected in humans - exposed to the substances. “‘The objections raise the much broader issue of human exposure to a chemical which is only known to have caused cancers in experimental animals. a * * ‘*We think it improper to afford less protection to workers when exposed to substances found to be car- cinogenic only in experimental animals. Once the car- cinogenicity of a substance has been demonstrated in animal experiments, the practical regulatory alterna- tives are to consider them either non-carcinogenic or carcinogenic to humans, until evidence to the contrary is produced. The first alternative would logically re- quire, not relaxed controls on exposure, but exclusion from regulation. The other alternative logically leads to the treatment of a substance as if it was known to be carcinogenic in man. ‘‘We agree with the director of NIOSH and the report of the Ad Hoc Committee on the Evaluation of Low Levels of Environmental Chemical Carcinogens to the Surgeon General, U.S. Public Health Service, April 22, 1970 that the second alternative is the re- sponsible and correct one.’’ (Appendix at 845-46.) It seems to us that what the Secretary has done in extra- polating from animal studies to humans is to make a legal rather than a factual determination. He has said in effect that if carcinogenicity in two animal species is established, as a matter of law §§ 6(a) and 6(b) (5) require that they be treated as carcinogenic in man. This is in the nature of a recommendation for prudent legislative action. This raises the problem of our role under §6(f) in reviewing the Secretary’s nonfactual policy decisions. The deliberate congressional choice of the substantial evidence standard for review might be interpreted to exclude us 9a from review of any but factual determinations and to re- quire that we afford absolute deference to the Secretary’s interpretation of the statute. However, no court that has considered the scope of judicial review has so read § 6(f). By one formulation or another each seems to have found room under § 6(f) for judicial review for consistency be- tween the Secretary’s rule and the statutory language and purpose. See Industrial Union Department, AFL-CIO v. Hodgson, supra; cf. Florida Peach Growers Association, Ine. v. United States Department of Labor, supra; Dry Color Manufacturers’ Assn., Inc. v. Department of Labor, supra; Associated Industries of New York State, Ine. v. United States Department of Labor, supra. Undoubtedly, this approach is sound, for the last sentence of § 6(f) can- not be read in a vacuum. Meaning must be given to all of 6. The last sentence of § 6(f) must be read together with the requirement in §6(e) that the Secretary ‘*inelude a statement of the reasons for such action which shail be published in the Federal Register.’’ He is not directed to file findings of fact. His reasons for action may include policy determinations as well as factual findings. The re- quirement that he state reasons strongly suggests that those reasons, whether policy judgments or factual findings, may be subjected to judicial review. Moreover, there are different legal criteria for the adoption of emergency tem- porary standards than for the adoption of permanent standards, but §6(f) provides for judicial review of both. Section 6(c)(1) authorizes adoption of emergency tempo- rary standards when the Secretary ‘‘determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxie or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.’”’ 29 U.S.C. §655(c)(1). Permanent standards must assure ‘‘ the greatest protection of the safety or health of the affected employees,’’ 29 U.S.C. § 655(a), and, with respect to toxic substances, must ‘‘most adequately as- sure[s], to the extent feasible, on the basis of the best avail- rer) 10a able evidence, that no employee will suffer material impair- ment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life.’’ 29 U.S.C. § 655(b)(5). The very difference in the legal cri- teria suggests that the court in reviewing pursuant to §6(f) must at a minimum determine if the Secretary ap- plied the correct ones, and certainly, as we neld in Dry Color Manufacturers’ Assn., Inc. v. Department of Labor, : supra, judicial review under § 6(f) encompasses our evalua- tion of the procedural requirements of § 6 even though our interpretation differs from that of the Secretary. It seems, then, that judicial review of a §6 standard properly includes at least the following: (1) determining whether the Secretary’s notice of pro- posed rule making adequately informed interested persons of the action taken; (2) determining whether the Secretary’s promulgation adequately sets forth reasons for his action; (3) determining whether the statement of reasons re- flects consideration of factors relevant under the statute; (4) determining whether presently available alterna- tives were at least considered; and (5) if the Seeretary’s determination is based in whole or in part on factual matters subject to evidentiary development, whether substantial evidence in the record as a whole supports the determination. In the context of this case, all five steps are involved. We note that there was a lack of notice regarding OSHA’s plans to make special provisions regarding EI’s use in research laboratories. The Secretary’s notice did not advise that the agency planned to make special pro- visions regarding EI use in laboratories. Because of this, lla we hold that to the extent that the standards in question relate to research laboratories, they will be vacated and remanded to OSHA. Further, as we concluded above, the statements of reasons reflect considerations relevant under $$ 6(a) and 6(b)(5) and are therefore sufficient under sub- section 6(e). Lastly, we hold that there does exist sub- stantial evidence in the record as a whole to support the Secretary’s finding that EI is carcinogenic in rats and mice and in the absence of evidence of carcinogenicity in humans, the Secretary properly weighed the only available alter- natives. We, therefore, reject the petitioners’ challenge to the EJ standards except in so far as they relate to labora- tories as outlined above. - ; The cause will be remanded to OSHA with directions to proceed in er with this opinion. 12a APPENDIX B Statute Involved Occupational Safety and Health Act. Section 6 of the Occupational Safety and Health Act (29 U.S.C. § 655 (1970)) provides as follows: ; (a) Without regard to chapter 5 of title 5, United States Code, or to the other subsections of this section, the Secretary shall, as soon as practicable during the period beginning with the effective date of this Act and ending two years after such date, by rule promul- gate as an occupational safety or health standard any national consensus standard, and any established Federal standard, unless he détermines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees. In the event: of conflict among any such standards, the Secretary shall promulgate the standard which assures the greatest protection of the safety or health of the affected employees. (b) The Secretary may by rule promulgate, modify, or revoke any occupational safety or health standard in the following manner: (1) Whenever the Secretary, upon the basis of information submitted to him in writing by an in- terested person, a representative of any organization of employers or employees, a nationally recognized standards-producing organization, the Secretary of Health, Education, and Welfare, the National Institute for Occupational Safety and Health, or a State or political subdivision, or on the basis of information developed by the Secretary or otherwise available to him, determines that a rule should be promulgated in order to serve the objectives of this Act, the Seeretary may request the recommendations of an advisory com- mittee appointed under section 7 of this Act. The Sak SRN 13a Secretary shall provide such an advisory committee with any proposals of his own or of the Secretary of Health, Education, and Welfare, together with all pertinent factual information developed by the Sec- retary or the Secretary of Health, Education. and Welfare, or otherwise available, including the results of research, demonstrations, and experiments. An advisory committee shall submit to the Secretary its recommendations regarding the rule to be promulgated within ninety days from the date of its appointment or within such longer or shorter period as may be prescribed by the Secretary, but in no event for a period which is longer than two hundred and seventy days. (2) The Seeretary shall publish a proposed rule promulgating, modifying, or revoking an occupational safety or health standard in the Federal Register and shall afford interested persons a period of thirty days after publication to submit written data or comments. Where an advisory committee is appointed and the Seerctary determines that a rule should be issued, he shall publish the proposed rule within sixty days after the submission of the advisory committee’s recom- mendations or the expiration of the period prescribed by the Secretary for such submission. (3) On or before the last day of the period pro- vided for the submission of written data or comments under paragraph (2), any interested person may file with the Secretary written objections to the proposed rule, stating the grounds therefor and requesting a public hearing on such objections. Within thirty days after the last day for filing such objections, the Secretary shall publish in the Federal Register a notice specifying the occupational safety or health standard to which objections have been filed and a hearing requested, and specifying a time and place for such hearing. l4a (4) Within sixty days after the expiration of the period provided for the submission of written data or comments under paragraph (2), or within sixty days after the completion of any hearing held under para- graph (3), the Secretary shall issue a rule pro- mulgating, modifying, or revoking an occupational safety or health standard or make a determination that a rule should not be issued. Such a rule may contain a provision delaying its effective date for such period (not in excess of ninety days) as the Secretary deter- mines may be necessary to insure that affected em- ployers and employees will be informed of the exist- ence of the standard and of its terms and that em- ployers affected are given an opportunity to familiarize themselves and their employees with the existence of the requirements of the standard. (5) The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life. Development of standards under this subsection shall be based upon research, demonstrations, experiments, and such other information as may be appropriate. In addition to the attainment of the highest degree of health and safety protection for the employee, other considera- tions shall be the latest available scientifie data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws. Whenever practicable, the standard promulgated shall be expressed in terms of objective criteria and of the performance desired. lida (6)(A) Any employer may apply to the Secretary for a temporary order granting a variance from a standard or any provision thereof promulgated under this section. Such temporary order shall be granted only if the employer files an application which meets the requirements of clause (B) and establishes that (i) he is unable to comply with a standard by its effective date because of unavailability of professional or technical personnel or of materials and equipment needed to come into compliance with the standard or because necessary construction or alteration of facilities cannot be completed by the effective date, (ii) he is taking all available steps to safeguard his employees against the hazards covered by the standard, and (iii) he has an effective program for coming into compliance with the standard as quickly as practicable. Any temporary order issued under this paragraph shall prescribe the practices, means, methods, opera- tions, and processes which the employer must adopt and use while the order is in effect and state in detail his program for coming into compliance with the standard. Such a temporary order may be granted only after notice to employees and an opportunity for a hearing: Provided, That the Secretary may issue one interim order to be effective until a decision is made on the basis of the hearing. No temporary order may be in effect for longer than the period needed by the employer to achieve compliance with the standard or one year, whichever is shorter, except that such an order may be renewed not more than twice (I) so long as the requirements of this paragraph are met and (II) if an application for renewal is filed at least 90 days prior to the expiration date of the order. No interim renewal of an order may remain in effect for longer than 180 days. 16a (B) An application for a temporary order under this paragraph (6) shall contain: (i) a specification of the standard or portion thereof from which the employer seeks a variance, (ii) a representation by the employer, sup- ported by representations from qualified persons having firsthand knowledge of the facts rep- resented, that he is unable to comply with the standard or portion thereof and a detailed state- ment of the reasons therefor, : 4 ‘ j 4 i AN (iii) a statement of the steps he has taken and will take (with specific dates) to protect employees against the hazard covered by the standard, (iv) a statement of when he expects to be able to comply with the standard and what steps he has taken and what steps he will take (with dates specified) to come into compliance with the stand- ard, and (v) a certification that he has informed his employees of the application by giving a copy thereof to their authorized representative, posting a statement giving a summary of the application and specifying where a copy may be examined at the place or places where notices to employees are normally posted, and by other appropriate means. A description of how employees have been informed shall be contained in the certification. The informa- tion to employees shall also inform them of their right to petition the Secretary for a hearing. (C) The Secretary is authorized to grant a variance from any standard or portion thereof whenever he determines, or the Secretary of Health, Education, and Welfare certifies, that such variance is necessary to 17a permit an employer to participate in an experiment approved by him or the Secretary of Health, Educa- tion, and Welfare designed to demonstrate or validate new and improved techniques to safeguard the health or safety of workers. (7) Any standard promulgated under this subsection shall prescribe the use of labels or other appropriate forms of warning as are necessary to insure that employees are apprised of all hazards to which they are exposed, relevant symptoms and appropriate emer- gency treatment, and proper conditions and precau- tions of safe use or exposure. Where appropriate, such standard shall also prescribe suitable protective equipment and control or technological procedures to be used in connection with such hazards and shall provide for monitoring or measuring employee ex- posure at such locations and intervals, and in such manner as may be necessary for the protection of employees. In addition, where appropriate, any such standard shall prescribe the type and frequency of medical examinations or other tests which shall be made available, by the employer or at his cost, to employees exposed to such hazards in order to most effectively determine whether the health of such em- ployees is adversely affected by such exposure. In the event such medical examinations are in the nature of research, as determined by the Seeretary of Health, ‘ducation, and Welfare, such examinations may be furnished at the expense of the Secretary of Health, Edueation, and Welfare. The results of such exami- nations or tests shall be furnished only to the Seere- tary or the Secretary of Health, Education, and Wel- fare, and, at the request of the employee, to his physician. The Secretary, in consultation with the Secretary of Health, Education, and Welfare, may by rule promulgated pursuant to section 553 of title 5, United States Code, make appropriate modifications Fal we AK dy 18a in the foregoing requirements relating to the use of labels or other forms of warning, monitoring or meas- uring, and medical examinations, as may be warranted by experience, information, or medical or technological developments acquired subsequent to the promulga- tion of the relevant standard. (8) Whenever a rule promulgated by the Secretary differs substantially from an existing national con- sensus standard, the Secretary shall, at the same time, publish in the Federal Register a statement of the reasons Why the rule as adopted will better effectuate the purposes of this Act than the national consensus standard. (c)(1) The Seeretary shall provide, without regard to the requirements of chapter 5, title 5, United States Code, for an emergency temporary standard to take immediate effect upon publication in the Federal Reg- ister if he determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxie or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger. (2) Such standard shall be effective until super- seded by a standard promulgated in accordance with the procedures prescribed in paragraph (3) of this subsection. (3) Upon publication of such standard in the Fed- eral Register the Secretary shall commence a_pro- ceeding in accordance with section 6(b) of this Act, and the standard as published shall also serve as a proposed rule for the proceeding. The Seeretary shall promulgate a standard under this paragraph no later than six months after publication of the emergency standard as provided in paragraph (2) of this sub- section. 19a (d) Any affected employer may apply to the See- retary for a rule or order for a variance from a standard promulgated under this section. Affected employees shall be given notice of each such applica- tion and an opportunity to participate in a hearing. The Secretary shall issue such rule or order if he determines on the record, after opportunity for an inspection where appropriate and a hearing, that the proponent of the variance has demonstrated by a preponderance of the evidence that the conditions, practices, means, methods, operations, or processes used or proposed to be used by an employer will provide employment and places of employment to his employees which are as safe and healthful as those which would prevail if he complied with the standard. The rule or order so issued shall prescribe the condi- tions the employer must maintain, and the practices, means, methods, operations, and processes which he must adopt and utilize to the extent they differ from the standard in question. Such a rule or order may be modified or revoked upon application by an employer, employees, or by the Seeretary on his own motion, in the manner prescribed for its issuance under this sub- section at any time after six months from its issuance. (e) Whenever the Secretary promulgates any stand- ard, makes any rule, order, or decision, grants any exemption or extension of time, or compromises, mitigates, or settles any penalty assessed under this Act, he shall include a statement of the reasons for such action, which shall be published in the Federal Register. (f) Any person who may be adversely affected by a standard issued under this section may at any time prior to the sixtieth day after such standard is pro- mulgated file a petition challenging the validity of such standard with the United States court of appeals | a ; Bx». BiLihd.'} . 20a for the circuit wherein such person resides or has his principal place of business, for a judicial review of such standard.