Public Citizen Health Research Group v. Brock
| Decision Date | 21 July 1987 |
| Docket Number | 85-1014 and 84-1392,Nos. 84-1252,s. 84-1252 |
| Citation | 823 F.2d 626 |
| Parties | , 56 USLW 2068, 17 Envtl. L. Rep. 20,953, 13 O.S.H. Cas.(BNA) 1362, 1987 O.S.H.D. (CCH) P 27,985 PUBLIC CITIZEN HEALTH RESEARCH GROUP, et al., Petitioners, v. William E. BROCK, Secretary of Labor, and John A. Pendergrass, Assistant Secretary of Labor, Occupational Safety and Health Administration, Respondents, Association of Ethylene Oxide Users, Intervenor ASSOCIATION OF ETHYLENE OXIDE USERS, Petitioner, v. William E. BROCK, Secretary of Labor, and John A. Pendergrass, Assistant Secretary of Labor, Occupational Safety and Health Administration, Respondents. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Robert E. Kopp, Director, and Leonard Schaitman, Asst. Director, Appellate Staff, Civ. Div., Dept. of Justice, Alfred R. Mollin, Atty., Dept. of Justice, George R. Salem, Sol. of Labor, Cynthia L. Attwood, Associate Sol. for Occupational Safety and Health, Dept. of Labor, Joseph M. Woodward, Counsel for Appellate Litigation, Dept. of Labor, and Laura V. Fargas, Atty., Dept. of Labor, Washington, D.C., were on respondents' response to the motion.
Before ROBINSON, Circuit Judge, and WRIGHT and McGOWAN, Senior Circuit Judges.
Opinion PER CURIAM.
Petitioners Public Citizen Health Research Group, et al., in Nos. 84-1252 and 85-1014 (hereinafter petitioners) allege that the Occupational Safety and Health Administration has contemptuously and unreasonably delayed promulgation of a "Short-Term Exposure Limit" (STEL) for the toxin ethylene oxide, despite this court's specific order in Public Citizen Health Research Group v. Tyson, 796 F.2d 1479 (D.C. Circuit 1986). This allegation places the court in a delicate position. Although the courts must never forget that our constitutional system gives the Executive Branch a certain degree of breathing space in its implementation of the law, we cannot countenance maneuvering that merely maintains a facade of good faith compliance with the law while actually achieving a result forbidden by court order. We understand that technical questions of health regulation are not easily untangled. We understand that an agency's limited resources may make impossible the rapid development of regulation on several fronts at once. And we understand that the agency before us has far greater medical and public health knowledge than do the lawyers who comprise this tribunal. But we also understand, because we have seen it happen time and time again, that action Congress has ordered for the protection of the public health all too easily becomes hostage to bureaucratic recalcitrance, factional infighting, and special interest politics. At some point, we must lean forward from the bench to let an agency know, in no uncertain terms, that enough is enough.
At issue here, then, is whether that point has been reached. We conclude that it has, but that the court's proper role within the constitutional system counsels caution in fashioning a remedy.
The history of OSHA's attempts to regulate ethylene oxide (EtO) is one of hesitation and lack of resolve. In January 1982, OSHA first issued an advance notice of proposed rulemaking for EtO in response to growing evidence of its toxicity. See 47 Fed.Reg. 3566 (1982). In 1983, this court found OSHA's delays in promulgating a final rule to be unjustifiable, and ordered the Administration to complete its rulemaking proceedings "within a year." Public Citizen Health Research Group v. Auchter, 702 F.2d 1150, 1154 n. 12 (D.C.Cir.1983) (per curiam ). OSHA subsequently published a proposed rule, 48 Fed.Reg. 17283, 17284 (1983), that included both a "Permissible Exposure Limit" (PEL) and a "Short-Term Exposure Limit" (STEL).
After extensive public hearings, OSHA was ready to issue a final rule on June 14, 1984. In compliance with Executive Order No. 12291, 3 C.F.R. 127 (1981), reprinted in 5 U.S.C. Sec. 601 note, at 431 (1982), OSHA sent the final rule to the Office of Management and Budget (OMB) for approval. But approval was not to be had. OMB balked at OSHA's inclusion of the short-term exposure limit, objecting primarily on the ground of cost-effectiveness. OSHA dutifully issued a final rule that had been sanitized of all mention of short-term exposure limits.
Almost immediately, petitioners challenged both the level of OSHA's ethylene oxide PEL and the agency's failure to include a STEL in the final regulation. Last July 25th, this court affirmed OSHA's PEL regulations, but determined that OSHA's decision to forego a STEL did not have adequate support in the rulemaking record. Public Citizen Health Research Group v. Tyson, 796 F.2d 1479 (D.C.Cir.1986). Our instruction to the agency on the need for a STEL was fairly simple:
On remand, we expect the agency to ventilate the issues on [the STEL] point thoroughly and either adopt a STEL or explain why empirical or expert evidence on exposure patterns makes a STEL irrelevant to controlling long-term average exposures.
796 F.2d at 1507. In contention presently is whether OSHA's failure to issue even a notice of proposed regulation in the nine months between issuance of our mandate and filing of the instant motion constitutes contempt of court, unreasonable delay under the Administrative Procedure Act, or both.
This is a troubling case. We are mindful that OSHA's rulemaking determinations are "essentially legislative and rooted in inferences from complex scientific and factual data," United Steelworkers of America v. Marshall, 647 F.2d 1189, 1206 (D.C.Cir.1980), cert. denied sub nom. Lead Industries Ass'n v. Donovan, 453 U.S. 913, 101 S.Ct. 3148, 69 L.Ed.2d 997 (1981). They are thus entitled to great deference from the court. Public Citizen v. Auchter, 702 F.2d at 1156. At the same time we cannot help but note that OSHA's EtO regulations, first proposed in 1982, are not final in 1987, despite repeated orders and exhortations from this court. In fact, OSHA informs us that the final STEL regulations will not issue until March 1988, even assuming that the rulemaking process suddenly changes what has been its essential character and proceeds according to schedule. With lives hanging in the balance, six years is a very long time.
Petitioners contend that the Tyson opinion does not support OSHA's recent decision to undertake a full-blown rulemaking proceeding on the STEL issue. And even assuming rulemaking is permissible, they submit that OSHA's failure to issue a notice of proposed rulemaking in the months that have passed since this court's Tyson remand constitutes both contemptuous failure to comply with that order and unreasonable delay under the Administrative Procedure Act. OSHA responds that, in order to comply with Tyson, it decided a rulemaking was necessary and quickly contracted with a private firm to collect data on the STEL question. Any delay in the process, it says, stems from practical difficulties encountered by the contractor and from the very nature of the rulemaking process.
A contempt citation under these circumstances would be a draconian and disproportionate remedy. OSHA...
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