American Federation of Labor & Congress of Industrial Organizations v. Marshall

617 F.2d 636, 199 U.S. App. D.C. 54, 7 OSHC (BNA) 1775, 1979 U.S. App. LEXIS 10980
CourtCourt of Appeals for the D.C. Circuit
DecidedOctober 24, 1979
DocketNos. 78-1562, 78-1736, 78-1979 to 78-1982, 78-1984, 78-1986 to 78-1993, 78-2013, 78-2014, 78-2016 and 78-2018
StatusPublished
Cited by12 cases

This text of 617 F.2d 636 (American Federation of Labor & Congress of Industrial Organizations v. Marshall) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Federation of Labor & Congress of Industrial Organizations v. Marshall, 617 F.2d 636, 199 U.S. App. D.C. 54, 7 OSHC (BNA) 1775, 1979 U.S. App. LEXIS 10980 (D.C. Cir. 1979).

Opinion

Opinion for the Court filed by Senior Circuit Judge BAZELON.

BAZELON, Senior Circuit Judge:

These consolidated petitions1 for review challenge a new permanent health standard limiting occupational exposure to cotton dust,2 which was promulgated by regulation on June 19,1978 by the Occupational Safety and Health Administration of the Depart[62]*62ment of Labor (OSHA), under section 6(b)(5) of the Occupational Safety and Health Act of 1970 (the Act).3 OSHA’s action, which rests on its determination that occupational exposure to cotton dust presents a material health hazard to workers, is attacked by three groups of petitioners: (1) representatives of the cotton textile industry4 and (2) nontextile industries5 who claim that the standard is unwarranted and infeasible; and (3) their employee unions, who attack two provisions of the standard as too lax, but support the rest.6 These very divergent claims reflect the wide variety of conflicting interests that make OSHA’s task a difficult one. On direct review,7 we uphold the standard except for its application to the cottonseed oil industry which we remand for clarification or reconsideration.

To assist a proper understanding of the issues, we discuss (I) the history and context of the agency’s action; (II) the nature of our review under the Act; (III) the claims of the textile industry; (IV) the claims of the non-textile industries; and (V) challenges to a few technical provisions of the standard.

I. BACKGROUND

A. Health Risks

Health impairments associated with exposure to cotton dust range from acute but reversible reactions to irreversible, chronic obstructive pulmonary disease.8 Cotton dust exposure can produce or aggravate respiratory symptoms characteristic of chronic bronchitis, asthma, and emphysema.9 Further, a specific, debilitating disease has been conclusively attributed to the effect of cotton dust on the respiratory passages. This disease, named byssinosis, is more commonly known in its chronic stage as “brown lung disease.” 10 This is the most serious health hazard for cotton workers.

Although the prevalence of the disease among cotton workers has been known for centuries,11 its exact etiology is still not [63]*63completely understood.12 The subjective nature of many early symptoms13 and variations in the composition of cotton dust14 have compounded the uncertainties about the actual way in which cotton dust exposure causes serious health impairments.15 Nonetheless, its progressively ' disabling symptoms are well documented.16

Typically, a person suffering from byssinosis is initially affected by irritated air passages, coughing, breathlessness, and chest tightness. These symptoms are often accompanied by decreased pulmonary functioning, evidenced by objective indicators. At first the symptoms tend to last briefly, and usually remit a few days after exposure. The symptoms recur, however, whenever an affected individual returns to a dusty environment.

As the disease progresses, its symptoms become more pronounced and painful, resembling the effects of bronchitis and asthma. They persist throughout the work week, or period of exposure. During this stage, an affected worker may become temporarily incapacitated and may need to take short but frequent leaves from work.

When byssinosis reaches its advanced stage, the worker exhibits the symptoms of emphysema and chronic bronchitis. Ultimately, irreversible lung damage results. A worker afflicted with chronic byssinosis is [64]*64forced into premature retirement, often after painful efforts to remain on the job. Such individuals must give up all activities that require any physical exertion. The permanent lung damage caused by byssinosis makes every breath painful and difficult. The excess strain these breathing difficulties place on the heart often leads to the worker’s early death from heart failure.

The actual number of persons afflicted with byssinosis is not certain, but it is large. One study estimated that 35,000 people have “disabling loss of lung function related to their work in the cotton textile industry” alone.17 The Senate Report on the Occupational Safety and Health Act stated that as many as 100,000 active or retired workers suffered from the disease in 1970.18

Studies in the record estimate that 250,-000 to 800,000 workers are exposed daily to cotton dust and its attendant risks.19 As the reported incidence of the disease usually ranges as high as 20-30% of the work force in cotton industries,20 each worker faces a substantial risk of health impairment.21

B. History of Cotton Dust Regulation

Prior to the creation of OSHA a private association of governmental industrial hygienists placed cotton dust on its tentative list of substances for which specific exposure limits should be established.22 In 1966 this organization adopted a “threshold limit value” of 1000 micrograms per cubic meter (1000 M-g/m 3) of total dust.23

The federal government first regulated cotton dust in 1968. At that time, the Secretary of Labor, acting pursuant to the Walsh-Healey Act,24 promulgated a 1000 Pg/m 3 maximum total dust exposure as an occupational health requirement for public contractors.25

This was an interim standard adopted upon passage of the Act in 1970 in which section 6(a) required the Secretary immediately to promulgate as occupational safety or health standards all existing “established Federal Standards,” including the 1000 ug/m3 standard for cotton exposure.26 These interim standards were intended to afford workers minimal protection until the [65]*65adoption of permanent standards through OSHA’s rulemaking proceedings.

On September 26, 1974, the Director of the National Institute of Occupational Safety and Health (NIOSH)27 submitted to the Secretary of Labor a set of recommendations for regulating cotton dust. NIOSH recommended28 that cotton dust exposure be “controlled to the lowest feasible limit which shall be less than 0.2 mg lint-free cotton dust/cu.m.,” 29 or 200 ug/m 3.

Shortly thereafter, OSHA published an Advanced Notice of Proposed Rulemaking on cotton dust. OSHA requested interested parties to submit their views on the NIOSH recommendations and related issues concerning a proposed standard.30 OSHA received comments from scientists, labor unions, industries, cotton growers, and governmental representatives. A proposed revision, published on December 28, 1976, called for an exposure limit of 200 pg/m3 of cotton dust.31 OSHA provided 90 days for interested parties to submit written comments.32

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Related

Texas Independent Ginners Ass'n v. Marshall
630 F.2d 398 (Fifth Circuit, 1980)
8 O.S.H. Cas.(bna) 2205, 1980 O.S.H.D. (Cch) P 24,937 Texas Independent Ginners Association v. F. Ray Marshall, Secretary of Labor, United States Department of Labor, Eula Bingham, Assistant Secretary of Labor, United States Department of Labor, and Occupational Safety and Health Administration, United States Department of Labor, Texas Cotton Ginners Association v. F. Ray Marshall, Secretary of Labor, United States Department of Labor, Eula Bingham, Assistant Secretary of Labor, United States Department of Labor, and Occupational Safety and Health Administration, United States Department of Labor, Chicanos Unidos-Campesinos, Inc., Defensa, Inc., Motivation, Education and Training, Inc., and Public Citizen Health Research Group v. Occupational Safety and Health Administration, United States Department of Labor, F. Ray Marshall, Secretary of Labor, and Eula Bingham, Assistant Secretary of Labor, Arizona Cotton Ginners Association v. F. Ray Marshall, Secretary of Labor, United States Department of Labor, Eula Bingham, Assistant Secretary of Labor, United States Department of Labor, Occupational Safety and Health Administration, United States Department of Labor, California Cotton Ginners Association v. F. Ray Marshall, Secretary of Labor, United States Department of Labor, Eula Bingham, Assistant Secretary of Labor, United States Department of Labor, Occupational Safety and Health Administration, United States Department of Labor, California Association of Grower Gins, Incorporated v. F. Ray Marshall, Secretary of Labor, United States Department of Labor, Eula Bingham, Assistant Secretary of Labor, United States Department of Labor, Occupational Safety and Health Administration, United States Department of Labor
630 F.2d 398 (Fifth Circuit, 1980)
American Federation of Labor & Congress of Industrial Organizations v. Ray Marshall, Secretary of Labor, United States Department of Labor, Cotton Warehouse Association v. Ray Marshall, Secretary of Labor, United States Department of Labor, and Eula Bingham, Assistant Secretary of Labor, U. S. Department of Labor and Occupational Safety and Health Administration, U. S. Department of Labor. American Textile Manufacturers Institute, Inc. v. Dr. Eula Bingham, Assistant Secretary of Labor, United States Department of Labor and Occupational Safety and Health Administration, United States Department of Labor, American Federation of Labor and Congress of Industrial Organizations Industrial Union Department, Afl-Cio and Amalgamated Clothing and Textile Workers Union, Afl-Cio, Clc, Intervenors. American Textile Manufacturers Institute, Inc. v. Dr. Eula Bingham, Assistant Secretary of Labor, United States Department of Labor and Occupational Safety and Health Administration, United States Department of Labor, Afl-Cio, Etc., Intervenors, (Two Cases). Milliken and Company v. Ray Marshall, Secretary of Labor and Dr. Eula Bingham, Assistant Secretary of Labor, Arkwright Mills v. F. Ray Marshall, Secretary, Department of Labor, and Eula Bingham, Assistant Secretary of Labor for Occupational Safety and Health, Spartan Mills v. F. Ray Marshall, Secretary, Department of Labor, and Eula Bingham, Assistant Secretary of Labor for Occupational Safety and Health, Blair Mills, Inc. v. F. Ray Marshall, Secretary, Department of Labor, and Eula Bingham, Assistant Secretary of Labor for Occupational Safety and Health, Hermitage, Inc. v. F. Ray Marshall, Secretary, Department of Labor, and Eula Bingham, Assistant Secretary of Labor for Occupational Safety and Health, Dan River, Inc. v. Dr. Eula Bingham, Assistant Secretary of Labor, United States Department of Labor and Occupational Safety and Health Administration, United States Department of Labor, Cone Mills Corporation v. Ray Marshall, Secretary of Labor, United States Department of Labor, and Eula Bingham, Assistant Secretary of Labor, United States Department of Labor and Occupational Safety and Health Administration, United States Department of Labor, Mayfair Mills v. F. Ray Marshall, Secretary, Department of Labor, and Eula Bingham, Assistant Secretary of Labor for Occupational Safety and Health, Springs Mills, Inc. v. Ray Marshall, Secretary of Labor, United States Department of Labor, Dr. Eula Bingham, Assistant Secretary of Labor, United States Department of Labor and Occupational Safety and Health Administration, United States Department of Labor, Riegel Textile Corporation v. Ray Marshall, Secretary of Labor, United States Department of Labor, Eula Bingham, Assistant Secretary of Labor, United States Department of Labor, and the Occupational Safety and Health Administration, United States Department of Labor, Fieldcrest Mills, Inc. v. F. Ray Marshall, Secretary of Labor, and Dr. Eula Bingham, Assistant Secretary of Labor for Occupational Safety and Health, and the Occupational Safety and Health Administration, United States Department of Labor, American Cotton Shippers Association v. Dr. Eula Bingham, Assistant Secretary of Labor, United States Department of Labor, and Occupational Safety and Health Administration, United States Department of Labor, National Cottonseed Products Association v. Ray Marshall, Secretary of Labor, United States Department of Labor and Eula Bingham, Assistant Secretary of Labor, United States Department of Labor, Occupational Safety and Health Administration, United States Department of Labor, National Cotton Council of America v. Ray Marshall, Secretary of Labor, Eula Bingham, Assistant Secretary of Labor, Occupational Safety and Health Administration, United States Department of Labor, West Point-Pepperell, Inc. v. Ray Marshall, Secretary of Labor and Eula Bingham, Assistant Secretary of Labor
617 F.2d 636 (D.C. Circuit, 1980)

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617 F.2d 636, 199 U.S. App. D.C. 54, 7 OSHC (BNA) 1775, 1979 U.S. App. LEXIS 10980, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-federation-of-labor-congress-of-industrial-organizations-v-cadc-1979.