Oil, Chemical & Atomic Workers Union v. Occupational Safety & Health Administration

Opinions of the United
1998 Decisions States Court of Appeals
for the Third Circuit

3-16-1998

Oil Chem Atomic v. OSHA
Precedential or Non-Precedential:

Docket 97-3532

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Filed March 16, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-3532

OIL, CHEMICAL AND ATOMIC WORKERS UNION
and PUBLIC CITIZEN'S HEALTH RESEARCH GROUP,

Petitioners,

v.

OCCUPATIONAL SAFETY AND HEALTH
ADMINISTRATION, GREGORY WATCHMAN, Acting
Administrator of the Occupational Safety and Health
Administration, ALEXIS HERMAN, Secretary of Labor,

Respondents.

On Petition for an Order Compelling Respondents
to Cease Unreasonable Delay and to Initiate a Rulemaking
on Hexavalent Chromium

Submitted under Third Circuit LAR 34.1(a)
March 13, 1998

Before: GREENBERG, SCIRICA and ALDISERT,
Circuit Judges.

(Filed March 16, 1998)

Order Amending Memorandum Opinion
Filed March 16, 1998
Colette G. Matzzie
David C. Vladeck
PUBLIC CITIZEN LITIGATION
GROUP
1600 20th Street, N.W.
Washington, D.C. 20009

Attorneys for PETITIONERS

John Shortall
Marvin Krislov, Deputy Solicitor for
National Operations
Joseph M. Woodward, Associate
Solicitor for Occupational Safety and
Health
Barbara Werthmann, Counsel for
Appellate Litigation
UNITED STATES DEPARTMENT OF
LABOR
200 Constitution Avenue, N.W.
Washington, D.C. 20210

Attorneys for RESPONDENTS

John L. Wittenborn
Michael O. Hill
Joseph J. Green
COLLIER, SHANNON, RILL &
SCOTT, PLLC
3050 K Street, N.W.
Washington, D.C. 20007

Gary M. Marek
KITTREDGE, DONLEY, ELSON,
FULLEM & EMBICK, LLP
421 Chestnut Street
Philadelphia, PA 19106

Attorneys for INTERVENOR
THE CHROME COALITION

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 Andre Shramenko
Glenn C. Merritt
FITZPATRICK & WATERMAN
400 Plaza Drive
Secaucus, NJ 07096

Attorneys for INTERVENOR
COLOR PIGMENTS MANUFACTURERS
ASSOCIATION, INC.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

Before the Court is not a petition for review of the final
order of an administrative agency but a petition for an
order compelling the respondents, the Occupational Safety
and Health Administration ("OSHA"), its Acting
Administrator and the Secretary of Labor, to cease
unreasonable delay in rulemaking on hexavalent
chromium. In addition, petitioners Oil, Chemical and
Atomic Workers Union and Public Citizen's Health Research
Group request this court to: (1) retain jurisdiction to
monitor OSHA's performance; (2) require OSHA to submit
periodic status reports; (3) authorize petitioners to conduct
discovery before recommending to this Court a feasible
schedule for the rulemaking and (4) direct OSHA to issue a
proposed rule and a final standard for hexavalent
chromium within a firm timetable.

Petitioners allege that we have subject matter jurisdiction
over their claims pursuant to three statutes: (1) The All
Writs Act, 28 U.S.C. S 1651(a), (2) the judicial review
provisions of the Occupational Health and Safety Act, 29
U.S.C. S 655(f), and (3) the Administrative Procedure Act, 5
U.S.C. S 706(1). We hold that a writ of mandamus is not
available under these circumstances and, even though this
Court is vested with jurisdiction to review the Secretary's
actions for unreasonable delay, the facts here do not
warrant our intervention in the agency's rulemaking. We
will therefore deny the petition.

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I.

Chromium has, in one form or another, been used since
the eighteenth century in various industries, most
significantly in the production of metal alloys. Chromium
VI, or hexavalent chromium, is a structural and anti-
corrosive element which has been used in the metal,
chemical, pigment, aviation and graphics industries, among
others.1 In 1997, OSHA estimated that between 200,000
and 700,000 workers in these industries are regularly
exposed to hexavalent chromium. 62 Fed. Reg. at 21978
(1997).

In 1971, in response to concerns that hexavalent
chromium is a carcinogen, OSHA exercised its rulemaking
authority and adopted a national consensus standard for
hexavalent chromium. See 29 U.S.C. S 655(a) (directing the
Secretary to promulgate such standards immediately upon
passage of the OSH Act in 1970). This standard, which is
still in effect today, set for workers a permissible exposure
limit ("PEL") of 100 micrograms of chromium per cubic
meter of air (100 ug/m3). 29 C.F.R. S 1910.1000.

In July 1993, Petitioners filed their first petition for
rulemaking with OSHA requesting emergency action under
the OSH Act, 29 U.S.C. S 655(c).2 That petition pointed to
contemporary studies of the elevated risks of respiratory
cancer for workers exposed to hexavalent chromium, and
requested that the Secretary immediately lower the PEL for
hexavalent chromium in the workplace. The Secretary
declined to set an emergency temporary standard because
he found the evidence insufficient to support the allegation
that a standard was immediately "necessary" to protect
_________________________________________________________________

1. Hexavalent chromium includes agents such as chromic acid (used in
chrome plating), potassium dichromate (chemistry and various
industries) and lead chromate (pigment).

2. 29 U.S.C. S 655(c) provides, in relevant part:

The Secretary shall provide . . . for an emergency temporary
standard . . . if he determines (A) that employees are exposed to
grave danger from exposure to substances or agents determined to
be toxic or physically harmful or from new hazards, and (B) that
such emergency standard is necessary to protect employees from
such danger.

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workers from such a "grave danger." Instead, OSHA
undertook research into proposed rulemaking regarding
hexavalent chromium. "We anticipate," it wrote the
petitioners, "that Notice of Proposed Rulemaking will be
published in the Federal Register not later than March
1995."

Because of many unanticipated factors--the release of a
breakthrough study on workers exposed to chromium
which necessitated detailed examination, "the results of the
November 1994 elections" in Congress, government
shutdowns, budget cuts, the need to study potential
compliance with a new PEL, the need to consult with small
businesses and the reprioritizing of other agency projects--
OSHA has not issued a notice of proposed rulemaking on
hexavalent chromium. It now anticipates a September 1999
date as its tentative deadline for a rulemaking proposal.

II.

A.

This is an unusual petition requesting extraordinary
relief. First, we must set forth our jurisdictional posture to
consider such a petition. We find that under the OSH Act,
this Court is vested with jurisdiction to conduct judicial
review over health and safety standards issued by the
Secretary of Labor, as well as over claims in which the
Secretary has not yet acted but where her delay is allegedly
unreasonable. The OSH Act, 29 U.S.C. S 655(f), provides:

Any person who may be adversely affected by a
standard issued under this section may at any time
prior to the sixtieth day after such standard is
promulgated file a petition challenging the validity of
such standard with the United States court of appeals
for the circuit wherein such person resides or has his
principal place of business, for a judicial review of such
standard.

On its face, the statute grants jurisdiction to the courts of
appeals for standards already issued by the Secretary.
Nevertheless, courts have interpreted the OSH Act's grant

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of jurisdiction, when read in conjunction with the APA, as
enabling judicial review not only of standards already
promulgated, but also of "agency action unlawfully withheld
or unreasonably delayed". See Action on Smoking & Health
v. Department of Labor, 28 F.3d 162, 163-164 (D.C. Cir.
1994) (OSH Act S 655(f) and APA "respectively confer
jurisdiction on this court . . . over suits seeking relief from
agency inaction or delay that jeopardizes our future
statutory power of review."); Public Citizen's Health
Research Group v. Brock, 823 F.2d 626, 629 (D.C. Cir.
1987) (reviewing OSHA's delay in rulemaking). In fact,
where administrative enabling statutes such as the OSH
Act grant exclusive jurisdiction to a particular court to
review past actions of an agency, that court necessarily has
the exclusive jurisdiction to review inaction, as well. See
Telecommunications Research & Action Ctr. v. FCC, 750
F.2d 70, 75 (D.C. Cir. 1984).

Next, because this Court has been vested with exclusive
jurisdiction over OSHA standards, the APA determines the
scope of our review when standards have not yet been
promulgated: "To the extent necessary," we shall "compel
agency action unlawfully withheld or unreasonably
delayed". 5 U.S.C. S 706(1); see also Williams v. National
School of Health Tech., Inc., 836 F. Supp. 273, 280 (E.D. Pa.
1993) ("The correct mechanism for bringing a claim of
unreasonable delay in promulgating regulations is the
Administrative Procedure Act (`APA') which specifically
provides that a court may `compel agency action
unreasonably delayed.' 5 U.S.C. S 706(1).").

B.

Applying these principles to review OSHA's rulemaking
process for unreasonable delay here, we are called upon to
balance the importance of the subject matter being
regulated with the regulating agency's need to discharge all
of its statutory responsibilities under a reasonable
timetable. See Environmental Defense Fund v. United States
Nuclear Regulatory Comm'n, 902 F.2d 785, 789-790 (10th
Cir. 1990); Cutler v. Hayes, 818 F.2d 879, 896 (D.C. Cir.
1987). With this balance in mind, unreasonable delay
should be measured by the following factors:

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 First, the court should ascertain the length of time that
has elapsed since the agency came under a duty to act.
Second, the reasonableness of the delay should be
judged in the context of the statute authorizing the
agency's action. Third, the court should assess the
consequences of the agency's delay. Fourth, the court
should consider "any plea of administrative error,
administrative inconvenience, practical difficulty in
carrying out a legislative mandate, or need to prioritize
in the fact of limited resources."

The Raymond Proffitt Found. v. United States Envtl.
Protection Agency, 930 F. Supp. 1088, 1102 (E.D. Pa. 1996)
(quoting In re Chem. Workers Union, 958 F.2d 1144, 1149
(D.C. Cir. 1992)). In the end, application of these factors to
a particular case is fact-intensive. We must begin a
discussion of agency action, or inaction, by affording the
agency "considerable deference in establishing a timetable
for completing its proceedings." Cutler, 818 F.2d at 896.

Distilled to its essence, this petition by Oil, Chemical and
Public Citizen would have us intrude into the quintessential
discretion of the Secretary of Labor to allocate OSHA's
resources and set its priorities. It is certainly true that
"[d]elays that might be altogether reasonable in the sphere
of economic regulation are less tolerable when human lives
are at stake." Cutler, 818 F.2d at 989; see also
Environmental Defense Fund, 902 F.2d at 789. This
presupposes, however, that the evidence before the agency
sufficiently demonstrates that delay will in fact adversely
affect human health to a degree which necessitates a
priority response. The Petitioners allege that between 88
and 342 out of every 1,000 workers exposed to hexavalent
chromium will die from cancer attributable to the
chromium exposure. Petitioners' Mem. at 17. On the other
hand, the Respondents and Intervenors raise serious
questions about the validity of the data and assumptions
underlying the Petitioners' calculations. For example,
Intervenor Color Pigments Manufacturers Association, Inc.
argues that the Petitioners are wrong to assume that all
workers in industries dealing with chromium in some way
or another are exposed to 100 ug/m3 hexavalent chromium,
every working day for 45 years. Color Pigments asserts that

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this calculation is faulty because it fails to consider that 1)
OSHA's lead PEL standard, 29 C.F.R. S 1910.1025(c),
reduces all workers' lead exposure, which in turn reduces
chromium exposure by one-half for workers in the pigment
industry; 2) pigment workers often breathe through
respirators which protect them from exposure to lead and
chromium and 3) the Petitioners' calculations fail to
distinguish between lead chromate, a chromium compound
with levels of bioavailability and toxicity that have not been
linked to any cancer, and other hexavalent chromium
compounds used in different industries. Id. at 5-8. In
addition, Intervenor The Chrome Coalition points to a
plethora of studies which demonstrate the inconclusivity of
hexavalent chromium's role in causing cancer because the
effects of smoking and asbestos exposure on workers have
not been fully considered. Chrome Coalition Mem. at 14-15
n.10. Faced with such varying data and differing
interpretations as these studies represent, this Court is not
in a position to tell the Secretary how to do her job.

"OSHA not only possesses enormous technical expertise
we lack, but must juggle competing rulemaking demands
on its limited scientific and legal staff." Brock, 823 F.2d at
629; see also Environmental Defense Fund, 902 F.2d at
789. Its various obligations notwithstanding, OSHA has
been far from idle in its consideration of hexavalent
chromium. This is not a subject matter to which the agency
has never given a thought, but is rather already regulated
in the workplace by the agency's current standards.
Moreover, OSHA has amassed a wealth of data reanalyzing
the health risks of hexavalent chromium and is currently in
the process of collecting information about the feasibility of
any proposed alterations to the standards now in place.
Although 5 U.S.C. S 706(1) directs reviewing courts to
"compel agency action unlawfully withheld or unreasonably
delayed," we are satisfied that the facts alleged here do not
demonstrate inaction that is either contrary to a specific
Congressional mandate, in violation of a specific court
order or unduly transgressive of the agency's own tentative
deadlines. Cf. United Steelworkers of America v.
Pendergrass, 819 F.2d 1263, 1270 (3d Cir. 1987) (enforcing
prior judgment); United Steelworkers of America v. Auchter,
763 F.2d 728, 739 (3d Cir. 1985) (ordering reformulation of

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standard to comply with statutory directive). We therefore
conclude that, on the record accompanying this petition,
OSHA has not "unlawfully withheld or unreasonably
delayed" the responsibility of rulemaking.

III.

Having concluded that the facts and the law presented
before us do not establish a necessity for us to intervene in
the Secretary's discretion to conduct the affairs of OSHA in
this matter, it is clear that we do not have the authority to
grant relief under the All Writs Act, 28 U.S.C.S 1651(a). "In
order to secure a writ of mandamus, petitioner must
establish that the government officer in question has a non-
discretionary duty to perform the specified action. The legal
duty must be `clear and indisputable.' " See Virgin Islands
v. Douglas, 812 F.2d 822, 832 (3d Cir. 1987). On the basis
of the allegations contained in the petition and the
responses to them, we cannot grant relief under the
concept of mandamus. Howsoever other courts of appeals
may construe this writ, the tradition of this Court and its
ruling case law severely limit the grant of mandamus relief.
A writ is not available here.

* * * * * * *

We have considered all arguments advanced by the
parties and have concluded that no further discussion is
necessary.

The petition for an order will be denied.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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