Industrial Union Department, AFL-CIO v. Hodgson

United States Court of Appeals for the District of Columbia Circuit · 1974 · Administrative Law

Administrative LawJudicial ReviewRulemakingOccupational Safety and HealthOSHAinformal rulemakingsubstantial evidencehybrid review

Facts

The Secretary promulgated permanent OSHA standards regulating asbestos dust after notice, written submissions, recommendations from NIOSH and an advisory committee, and a public hearing. The standards retained a five-fiber exposure limit until 1976 and then required a two-fiber standard, and they also addressed monitoring, compliance methods, warnings, medical examinations, and recordkeeping. Petitioners argued that several provisions were inadequate to protect workers' health. The record contained both formal-hearing material and a large body of written submissions, and scientific data on asbestos risks and compliance capability was incomplete in important respects.

Issue

How should a court review OSHA standards produced through informal rulemaking but made reviewable by a substantial evidence standard, and were the challenged asbestos standards lawful under that standard and OSHA's substantive commands? More specifically, could the Secretary consider economic feasibility, depart from NIOSH's recommendations, and adopt the particular timetable and recordkeeping requirements challenged here?

Rule

Under OSHA, judicial review must be flexible because the Secretary's rulemaking combines factual determinations with legislative policy judgments. Where the Secretary's choice rests on determinable facts, those facts must be found from record evidence and supported by substantial evidence; where factual certainty is unavailable or facts alone do not answer the question, the Secretary must identify the policy judgment being made and the considerations found persuasive, and the court examines whether the action is reasoned and nonarbitrary in light of the Act. NIOSH recommendations are advisory rather than binding, and feasibility under OSHA may include economic as well as technological considerations.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

After notice, written submissions, and a public hearing, the Secretary of Labor adopts a workplace benzene rule affecting factories in Detroit and Houston. The rule relies partly on measurable plant-sampling data and partly on predictive judgments about long-term cancer risk where scientific evidence is incomplete.

If workers challenge the rule in court, which approach best describes how the court should review it?

Explanation. OSHA rulemaking is a hybrid: informal procedures coupled with substantial-evidence review. The majority held review must be flexible. Determinable facts must be found from record evidence and supported by substantial evidence, but where science is uncertain or facts alone do not answer the question, the Secretary must identify the policy judgment and the considerations found persuasive. The court then examines whether the action is reasoned and nonarbitrary in light of the Act.