ELR Citation: ELR 20545
No(s). s. 83-3554 et al (3d Cir. May 24, 1985)

The court first holds that the Occupational Safety and Health Act's (OSH Act's) hazard communication standard, which requires employers in the manufacturing sector to inform employees of potentially hazardous materials in the workplace, is a §6 standard, not a §8 regulation, and is therefore reviewable by he courts of appeals. To the extent that the standard is valid, it preempts state disclosure laws applicable to employees in the manufacturing sector that have not been approved under §18. The court holds that the issue of whether the standard preempts state laws outside the manufacturing sector is not ripe.

Reaching the merits, the court applies the substantial evidence test of §6(f). It first holds that while the standard may continue to operate in the manufacturing sector, the Secretary of Labor must reconsider his decision not to apply it to employees in other sectors. The Secretary's priority-setting authority under §6(g) does not give him unreviewable discretion to decide what industries will be covered by a standard. Although §6(g) allows the Secretary to set priorities when issuing standards, once a standard is issued, the Secretary may exclude a particular industry only if he concludes on the record that it is not feasible for the standard to be applied if workers are exposed to similar hazards. This the Secretary has failed to do. The court is not persuaded by the Secretary's contention that the communication rule will trickle down to uncovered workers because containers will be labeled. The court next holds that the Secretary's rejection of the list of covered bubstances in the Registry of Toxic Effects of Chemical Substances as overinclusive is supported by substantial evidence and is consistent with the OSH Act.

Finally, the court addresses the inclusion of a trade secret exception to the standard. The court holds that the definition of trade secrets, which provides greater protection for chemical manufacturers and importers than state law, is too broad. Section 15 deals only with disclosure by the agency to its employees and does not authorize the creation of substantive trade secret protection beyond that afforded by state law. Section 6(b)(5), which does not permit the Secretary to balance employee safety against competing economic concerns when setting standards, counsels against an expanded definition. Further, trade secrets are not constitutionally protected from the regulatory process. The court orders the Secretary to formulate a new definition of trade secrets, which may not include protection for chemical identity information that is readily discoverable through reverse engineering. The court turns to three objections to the conditions under which workers may have access to trade secret information. First, the court holds that the requirement that a request be in writing with supporting documentation is valid. Second, the standard's restriction of access of trade secret information to health professionals is invalid because it is not supported by substantial evidence. The Secretary must adopt a rule permitting access by employees and their collective bargaining representatives. Third, the court holds that the standard's requirement that requesters sign a confidentiality agreement containing a liquidated damages clause is valid.

One judge dissents from the court's invalidation of the standard's restriction of trade secret information and would uphold the Secretary's finding that health care professionals can adequately advise workers who may be exposed to hazardous chemicals.

Counsel for Plaintiff
George H. Cohen, Robert M. Weinberg, Jeremiah A. Collins, Gary L. Sasso
Bredhoff & Kaiser
1000 Connecticut Ave. NW, Washington DC 20036
(202) 833-9340

James D. English, Mary-Win O'Brien
United Steelworkers of America
Five Gateway Center, Pittsburgh PA 15222
(412) 562-2400

Laurence Gold
815 16th St. NW, Washington DC 20006
(202) 466-6790

Joseph Lurie
Galfand, Berger, Senesky, Lurie & March
Suite 1200, 1737 Chestnut St., Philadelphia PA 19103
(215) 665-1600

Counsel for Defendant
Frank A. White, Assoc. Solicitor for Occupational Safety and Health; Nathaniel Spiller
Department of Labor, Washington DC 20210
(202) 523-7684

Before Fisher^* and Kelly,^** JJ.