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USW v. Marshall - 208 U.S. App. D.C. 60, 647 F.2d 1189 (1980)


The Secretary of Labor has delegated his authority to set standards under 29 U.S.C.S. § 655 (1976) to the Assistant Secretary of Labor for Occupational Safety and Health, who is the head of the Occupational Safety and Health Administration.


In consolidated appeals petitioners representing both labor union and industry interests challenged aspects of the new Occupational Health Standard for Lead promulgated by the Secretary of Labor and the massive rulemaking from which it emerged. 29 C.F.R. § 1910.1025 (1979). As scientific means for measuring lead exposure and absorption improved, scientists and the government set lower figures for the maximum tolerable level of airborne lead exposure, but struggled to set a precise permissible exposure limit. The Occupational Safety and Health Administration (OSHA), exercising its authority and responsibility under § 6 of the Occupational Safety and Health Act, 29 U.S.C.S. § 655 (1976), issued new rules to protect workers from exposure. Petitioner unions claimed that OSHA failed to ensure that no employee will suffer material impairment of health. Petitioner industries charged OSHA with many procedural errors in its informal rulemaking, attacked the substantive provisions of the standard, and asserted that there was no substantial evidence to support the standard's factual bases. 


Did the OSHA fail to present substantial evidence to support the factual bases of the standards it set?




The court affirmed most of the new standard, remanding to OSHA for reconsideration only on the feasibility of the standard for some of the affected industries. OSHA's procedures and evidence-gathering were less than perfect, however the court was especially wary of imposing on OSHA any procedural or evidentiary constraints beyond those explicitly established by Congress.

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