United Steelworkers Of America v. Marshall

647 F.2d 1189 (D.C. Cir. 1980)


OSHA issued new rules designed to protect American workers from exposure to airborne lead in the workplace. Ps representing both labor union and industry interests challenge virtually every aspect of the new lead standard and the massive rulemaking from which it emerged. At the other end, the unions claim that OSHA has failed to carry out its statutory duty to ensure that 'no employee will suffer material impairment of health * * *.' Ps attack every procedural aspect of the process and assert that D has failed to present substantial evidence to support the factual bases of the standard. Lead absorption through inhalation and ingestion causes serious medical problems. Excessive lead absorption can injure the kidneys and the peripheral and central nervous systems. The biggest problem is that science is uncertain as to the precise levels of air-lead exposure or blood-lead content at which different lead-induced diseases occur. At least 800,000 workers, representing 120 occupations in over 40 industries, are exposed to airborne lead on the job and thereby face the dangers of lead poisoning. As the science figures it out D has set lower and lower numbers for the maximum tolerable level of airborne lead exposure, but have struggled in setting a precise permissible exposure limit (PEL). In 1975 OSHA published notice of a proposed new standard for occupational lead exposure, which combined a PEL of 100 ug/m 3 with detailed rules for environmental monitoring, employee medical surveillance and training, and other health and safety measures. OSHA conducted public hearings and closed the record on August 8, 1978. It then issued the final standard, which differed from the proposed standard most noticeably in setting the final PEL at 50 ug/m 3. Under the new rules, the employer must measure employees' blood-lead levels at periodic intervals determined by the magnitude of the employees' initial or most recent measured level, § 1910.1025(j)(2), and must also give all employees medical examinations to determine whether the employees suffer or risk any bodily harm from lead exposure, § 1910.1025(j)(3). If an employee challenges the findings of a company physician's medical examination, the employer must pay for a second, and possibly a third, medical examination to assess the accuracy of the first examination, § 1910.1025(j)(3)(iii). Workers with abnormally high blood-lead levels or whenever medical surveillance reveals that a worker may suffer actual physical impairment from lead exposure, the employer must remove the employee from the workplace. During the period of removal, the employer must absolutely guarantee that the removed worker retains the earnings, benefits, and seniority rights of the job from which he was removed for at least 18 months, and the employer cannot return the employee to the original workplace until the lead-induced ailment disappears or the worker's blood-lead level shows significant reduction. LIA (P) claims bias in the process. It points to a speech that Bingham, assistant secretary of labor and the decision-maker on the final rule, delivered on November 3, 1978, to a United Steelworkers of America conference on occupational exposure to lead. During the speech, Bingham proceeded to suggest her predisposition on important issues. She simply castigated anyone against her solutions to any of the core problems to regulating lead exposure. LIA (P) detailed ex parte communications between her and an attorney at OSHA that violated the APA.