ELR Citation: ELR 20415
No(s). 72-1713 (D.C. Cir. Apr 15, 1974)

Regulations limiting the amount of asbestos dust allowed in the air in industries using asbestos, set by the Secretary of Labor pursuant to the Occupational Safety and Health Act of 1970, 29 U.S.C. §§651 et seq. (OSHA) are subject to the substantial evidence standard of judicial review to the extent that they go beyond legislative policy determinations and become adjudicative resolutions of disputed facts. Given this, the Court of Appeals for the District of Columbia Circuit concludes that, with two exceptions, the challenges made against these regulations by the AFL-CIO must fail, as the regulations are valid exercises of the Secretary's discretion. The court holds that the Secretary must develop standards which insure protection of employees and in so doing may take recommendations of the National Institute for Occupational Safety and Health (NIOSH) into account, but such recommendations are not binding upon him nor do they make consideration of economic feasibility by the Secretary improper. Provisions requiring that workplaces be monitored to determine asbestos concentrations when it is foreseeable that the concentration is excessive are, in the absence of definitive evidence on how much monitoring is necessary given different contingencies, valid despite their imprecision and may not be challenged. Requirements dealing with methods of compliance are not, as the AFL-CIO fears, applicable only when monitoring detects a violation but rather are broad enough to apply to all workplaces covered by the act and hence also may not be challenged. Other provisions requiring moisturization of the asbestos as a control method to avoid creating dust, cautionary labels and warning signs to prevent persons from unknowingly entering dangerous areas, periodic medical examinations of employees by a physician chosen by the employer despite the potential violation of physician/patient confidentiality, and maintenance of medical records of employees for 20 years so as to aid in research and treatment, are all valid exercises of the Secretary's discretion. However, the Secretary's failure to justify his setting 1976 as the target date for implementation of a lower asbestos concentration, despite the fact that some industries could meet this goal earlier, as well as his failure to justify the establishment of a three-year retention period for monitoring records when a longer period might be useful, are not necessarily valid exercises of discretion and constitute grounds for remanding these two specific issues to the Secretary for determination of the reason for the particular choice made.

Counsel for Appellant
George H. Cohen
Michael H. Gottesman
1000 Connecticut Ave., NW
Washington, DC 20036

Counsel for Appellee
Walter H. Fleischer
Eric B. Chaikin
Michael Kimmel
Department of Justice
Washington, DC 20530

Michael H. Levin
Office of the Solicitor
Department of Labor
Washington, DC 20210

Baruch A. Fellner
Appellate Litigation of Division of
Occupational Safety and Health
Department of Labor
Washington, DC 20210