UNITED STEELWORKERS OF AMERICA, ETC. v. MARSHALL

No. 79-1048.

647 F.2d 1189 (1980)

UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, Petitioner, v. F. Ray MARSHALL, Secretary of Labor, United States Department of Labor, and Doctor Eula Bingham, Assistant Secretary for Occupational Safety and Health, United States Department of Labor, Respondents, Cast Metals Federation, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, United Steelworkers of America, AFL-CIO-CLC et al., Shipbuilders Council of America, Oil, Chemical and Atomic Workers International Union, AFL-CIO, Dixie Metals Company, National Constructors Association, General Motors Corporation, Bunker Hill Company, Standard Industries, and Schuykill Metals Corporation, Intervenors.

United States Court of Appeals, District of Columbia Circuit.

Decided August 15, 1980.

As Amended January 30, 1981.


Attorney(s) appearing for the Case

George H. Cohen, Washington, D. C., with whom James M. Harris, Julia Penny Clark, and Robert M. Weinberg, Washington, D. C., Norman M. Berger, Philadelphia, Pa., and Mary Win-O'Brien and James D. English, Pittsburgh, Pa., were on the brief, for petitioner United Steelworkers of America, AFL-CIO-CLC.

W. Scott Railton, Pittsburgh, Pa., with whom James Kearney, Pittsburgh, Pa., Jerome Powell and Robert A. Emmett, Washington, D. C., and Paul L. Landry, John McN. Cramer, and John M. Wood, Pittsburgh, Pa., were on the brief, for petitioners American Iron and Steel Institute et al.

Standish F. Medina, Jr., New York City, with whom Nicole A. Gordon, New York City, and Edwin H. Seeger, Washington, D. C., were on the brief, for petitioners Lead Industries Ass'n, Inc. et al.

Elroy H. Wolff and Linda S. Peterson, Washington, D. C., were on the brief for petitioners Battery Council Intern., et al.

Thaddeus Holt, William J. Kilberg, and Lawrence Z. Lorber, Washington, D. C., were on the brief for petitioner ASARCO Inc.

William V. Hearnburg and James W. Kesler, Carrollton, Ga., were on the brief for petitioner Southwire Co.

Richard O'Brecht and Bruce Hamill, Washington, D. C., were on the brief for petitioners National Paint and Coatings Ass'n, Inc. et al.

Hugh M. Finneran, Pittsburgh, Pa., and Horace A. Thompson, III, New Orleans, La., were on the brief for petitioner PPG Industries, Inc.

Carl F. Goodman, New York City, with whom Jeanne S. Conroy, Washington, D. C., Charles G. Hollis, and Frank R. Saunders, New York City, and James A. DeBois, San Francisco, Cal., were on the brief, for petitioners South Central Bell Tel. Co. et al.

Robert V. Zener, Washington, D. C., and Edward J. Dilworth, Jr., Detroit, Mich., were on the brief for petitioners General Motors Corp., Ford Motor Co., and Chrysler Corp.

Edward L. Merrigan, Washington, D. C., with whom Edward F. Schiff and David A. Donohoe, Washington, D. C., were on the brief, for petitioners National Ass'n of Recycling Industries, Inc. et al.

Joseph C. Carter, Jr., David F. Peters, and John J. Adams, Richmond, Va., and Horace A. Thompson, III, New Orleans, La., were on the brief for petitioner Ethyl Corp.

Dennis K. Kade, Asst. Counsel for Appellate Litigation, Dept. of Labor, and Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Dept. of Labor, Washington, D. C., a member of the bar of the Supreme Court of the United States, pro hac vice, by special leave of court, with whom Allen H. Feldman, Acting Counsel for Appellate Litigation, Nancy L. Southard, Acting Asst. Counsel for Appellate Litigation, and Richard L. Gross and Lorelli J. Borland, Attys., Randy S. Rabinowitz (law clerk), Dept. of Labor, Washington, D. C., were on the brief, for respondents.

Robert D. Moran, Washington, D. C., was on the brief for intervenor Cast Metals Federation.

Claude D. Montgomery, Detroit, Mich., with whom John A. Fillion, Judith A. Scott, and M. Jay Whitman, Detroit, Mich., were on the brief, for intervenor International Union, United Auto., Aerospace and Agricultural Implement Workers of America.

Allan J. Topol and Steven S. Rosenthal, Washington, D. C., were on the brief for intervenor Shipbuilders Council of America.

Robert Stulberg, with whom Girardeau A. Spann and William B. Schultz, Washington, D. C., were on the brief, for intervenor Oil, Chemical and Atomic Workers Intern. Union, AFL-CIO.

Vincent J. Fuller and Peter J. Kahn, Washington, D. C., were on the brief for intervenor Dixie Metals Co.

Stephen C. Yohay, with whom Anthony J. Obadal and Steven R. Semler, Washington, D. C., were on the brief, for intervenor National Constructors Ass'n.

Edwin H. Seeger, Carl B. Nelson, Jr., and John T. Golden, Washington, D. C., were on the brief for intervenor Bunker Hill Co.

Frank M. Coates, Jr., Baton Rouge, La., was on the brief for intervenor Schuykill Metals Corp.

James R. Richards, Washington, D. C., was on the brief for amicus curiae Capital Legal Foundation urging that the lead standard be declared invalid.

Marjorie Elizabeth Cox, Los Angeles, Cal., was on the brief for amici curiae California Dept. of Industrial Relations et al. urging affirmance.

Wendy B. Kloner and Douglas L. Parker were on the brief for amici curiae Women's Legal Defense Fund et al. urging affirmance.

Before WRIGHT, Chief Judge, and ROBINSON and MacKINNON, Circuit Judges.


Opinion for the court** filed by Chief Judge J. SKELLY WRIGHT.

Dissenting opinion filed by Circuit Judge MacKINNON.

J. SKELLY WRIGHT, Chief Judge:

In November 1978 the Occupational Safety and Health Administration (OSHA), exercising its authority and responsibility under Section 6 of the Occupational Safety and Health Act, 29 U.S.C. § 655 (1976), issued new rules designed...

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