314 F.3d 143 (3rd Cir. 2002), 02-1611, Public Citizen Health Research Group v. Chao

Docket Nº:02-1611.
Citation:314 F.3d 143
Party Name:PUBLIC CITIZEN HEALTH RESEARCH GROUP; the Paper, Allied-Industrial, Chemical & Energy Workers International Union, v. Elaine CHAO, Secretary of Labor; Occupational Safety and Health Administration, *Color Pigments Manufacturers Association Inc, Intervenor **Chrome Coalition, Intervenor. * Pursuant to Court's Order dated 4/2/02 ** Pursuant to Court'
Case Date:December 24, 2002
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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314 F.3d 143 (3rd Cir. 2002)

PUBLIC CITIZEN HEALTH RESEARCH GROUP; the Paper, Allied-Industrial, Chemical & Energy Workers International Union,

v.

Elaine CHAO, Secretary of Labor; Occupational Safety and Health Administration, *Color Pigments Manufacturers Association Inc, Intervenor **Chrome Coalition, Intervenor.

* Pursuant to Court's Order dated 4/2/02

** Pursuant to Court's Order dated 4/3/02

No. 02-1611.

United States Court of Appeals, Third Circuit

December 24, 2002

Argued Nov. 5, 2002.

Page 144

Scott L. Nelson (Argued), David C. Vladeck, Public Citizen Litigation Group, Washington, DC, for Appellant Public Citizen Litigation Group.

Eugene Scalia, Solicitor of Labor, Joseph M. Woodward, Associate Solicitor for Occupational, Safety and Health, Bruce Justh (Argued), for Appellate Litigation.

John Shortall, U.S. Department of Labor, Washington, DC, for Appellee Occupational Safety and Health Administration.

Andre Shramenko (Argued), Glenn C Merritt, Fitzpatrick & Waterman, Secaucus, NJ, for Intervenor Color Pigments Manufacturers Assoc, Inc.

John L. Wittenborn, Michael O. Hill, Christina B. Parascandola (Argued), Collier Shannon Scott, PLCC, Washington, DC, for Intervenor Chrome Coalition.

Before BECKER, Chief Judge, McKEE and Hill,[*] Circuit Judges.

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OPINION OF THE COURT

BECKER, Chief Judge.

This opinion addresses a Petition by Public Citizen Health Research Group ("Public Citizen") to review the inaction of the United States Department of Labor, specifically the Occupational Safety and Health Administration ("OSHA"), and to require OSHA to commence a rulemaking that would lower the permissible exposure limit for hexavalent chromium. It is not disputed that hexavalent chromium, which is widely used in various industries and which has been classified as a carcinogen, can have a deleterious effect on worker health. The National Institute for Occupational Safety and Health ("NIOSH") has for several decades recommended that OSHA adopt a far more stringent permissible exposure limit ("PEL") for hexavalent chromium than the consensus standard it promulgated in 1971. In response to a 1993 petition for rulemaking, OSHA agreed that there was clear evidence that exposure to hexavalent chromium at the consensus level can result in excess risk of lung cancer and other chromium-related illnesses, and announced that it was initiating a rulemaking that it expected would conclude in 1995. However, nearly a decade after this announcement, nothing has happened, evincing a clear pattern of delay.

This matter was before us once before, in Oil, Chemical & Atomic Workers Union v. OSHA, 145 F.3d 120 (3d Cir. 1998). In that case, we declined Public Citizen's request to compel agency action, for we concluded that the facts did not yet "demonstrate [that OSHA's] inaction is . . . unduly transgressive of the agency's own tentative deadlines." 145 F.3d at 124. At that time, OSHA represented that it intended to issue a proposed rule by September 1999, and we found such a deadline permissible in light of alleged competing policy priorities, including the Clinton Administration's ergonomics initiative. Yet, at the time of oral argument in this case, which was nine years after OSHA initially announced its intention to begin the rulemaking process, no rulemaking had yet been initiated, and it appeared that none would be in the foreseeable future. Indeed, at oral argument, OSHA's counsel admitted the possibility that OSHA might not promulgate a rule for another ten or twenty years, if at all.

We concluded that the delay had become unreasonable, and that while competing policy priorities might explain slow progress, they could not justify indefinite delay and recalcitrance in the face of an admittedly grave risk to public health. We therefore determined to grant the petition and to direct OSHA to proceed expeditiously with its hexavalent chromium rulemaking process. This opinion was drafted on an expedited basis and was circulating to the panel when we received OSHA's announcement that it had instituted the long-sought rulemaking process, stating that: "The health risks associated with occupational exposure to hexavalent chromium are serious and demand serious attention . . . . We are committed to developing a rule that ensures proper protection to safeguard workers who deal with hexavalent chromium." OSHA News Release of Dec. 4, 2002, available at http:// www.osha.gov.

This notice appears to have been prompted by the displeasure clearly evidenced by the panel during oral argument, especially the question posed to counsel whether they would be receptive to mediation regarding the timeframe for a judicially-ordered rulemaking. Notwithstanding OSHA's long delay, we salute the agency upon its recent action and accompanying recitation, and trust that it will have a good result. That said, it does not moot

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this proceeding because the agency's action does not resolve an important facet of the case, namely Public Citizen's request that we order OSHA to issue a proposed rule within 90 days and supervise OSHA's progress.

Accordingly, we will publish the opinion that had been prepared to resolve the remedy issue, and will direct that Public Citizen and OSHA submit to a course of mediation for sixty days before The Honorable Walter K. Stapleton. If the parties cannot agree to a workable timetable during that period, the panel will issue and enforce a schedule of its own device. We note in this regard that the recitation of this case's history and our ratio decidendi, which provided the impetus for OSHA's commendable action, will inform the proceedings to follow.

I. Facts and Procedural Posture

Hexavalent chromium is a compound found only rarely in nature but used widely in industry—for chrome plating, stainless steel welding, alloy production, and wood preservation. The dangers of exposure to it have long been recognized, and include ulceration of the stomach and skin, necrosis, perforation of the nasal septum, asthma, and dermatitis. More significantly, there is strong evidence that inhaled hexavalent chromium is carcinogenic. Since 1980, the Department of Health and Human Service's National Toxicology Program has designated various hexavalent chromium compounds as human carcinogens. The Environmental Protection Agency has been in accord since 1984, and it confirmed its carcinogenic classification of the compound in a review of the toxicological data in 1998. EPA, Toxicological Review of Hexavalent Chromium (1998), available at http://www.epa.gov/IRIS/tox-review/0144-trpdf. Disturbingly, the primary evidence of hexavalent chromium's carcinogenicity comes not from animal studies, but from epidemiological studies of workers exposed to it; in short, as Public Citizen states, "the principal evidence is actual human body counts." [Pet. Br. at 5.]

Soon after the Occupational Safety and Health Act took effect in 1970, OSHA established a 100 µg/m3 permissible exposure limit ("PEL") for inhalation exposure to hexavalent chromium.1 That level did not reflect OSHA's independent judgment about the appropriate standard, but rather constituted a "lowest common denominator" consensus standard to provide workers some measure of protection pending OSHA's consideration of the optimal long-term standard. S.Rep. No. 1282, 91st Cong., 2d Sess. 6 (1970), reprinted in 1970 U.S.C.C.A.N. 5177, 5182-83. The 1971 standard remains in effect. However, although today's foremost health concern regarding hexavalent chromium is its carcinogenicity, OSHA did not take that into

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account when promulgating the standard; rather, it was based on a 1943 recommendation by the American National Standards Institute, which in turn was based on reports generated in the 1920s, none of which considered chromium's carcinogenic effects.

Shortly after OSHA promulgated the consensus standard, NIOSH, the agency responsible for conducting research and making recommendations to OSHA for the prevention of occupational disease and injury, urged OSHA to adopt a PEL of 1.9 Sg/m3, a level 1/52 of the existing standard. At that time, NIOSH concluded that the evidence of the carcinogenicity of a few specified hexavalent chromium compounds was lacking, but that all other forms were carcinogenic. (Lurie Dec. ¶ 7.) Subsequently, however, NIOSH concluded that all forms of hexavalent chromium should be considered carcinogenic, and it recommended that the 1.9 µg/m3 standard be applied to all such compounds. (Id.)

In 1993, Public Citizen petitioned OSHA to issue an emergency temporary standard that would set a PEL of 0.5 µg/m3 as an 8-hour weighted average. The Occupational Safety and Health Act requires OSHA to issue an emergency temporary standard without the usual notice-and-comment procedures if it finds that such action is needed to protect employees against grave danger. 29 U.S.C. § 655(c). OSHA denied the petition because it contended that "the extremely stringent judicial and statutory criteria for issuing" an emergency standard were not met. (Dear Letter at 2.) It did, however, acknowledge that its existing standard was inadequate: "OSHA agrees that there is clear evidence that exposure to CrVI at the current PEL of 100 µg/m3 can result in an excess risk of lung cancer and other CrVI-related illnesses." (Id.) It therefore announced that

OSHA . . . is beginning a Section 6(b) rulemaking for occupational exposure to CrVI. We are preparing the necessary health and economic impact assessments to support this regulatory action. We anticipate that Notice of Proposed Rulemaking will be published in the Federal Register not later than March 1995.

(Id.)

This timetable was short-lived. Only a month after its response to Public Citizen's rulemaking petition...

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