Intern. Chem. Workers Union, In re
| Citation | 830 F.2d 369 |
| Decision Date | 09 October 1987 |
| Docket Number | No. 87-1281,87-1281 |
| Parties | , 18 Envtl. L. Rep. 20,393, 13 O.S.H. Cas.(BNA) 1402, 1987 O.S.H.D. (CCH) P 28,061 In re INTERNATIONAL CHEMICAL WORKERS UNION and Public Citizen Health Research Group, Petitioners. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
David C. Vladeck, Alan B. Morrison, and Eric R. Glitzenstein, Washington, D.C., were on the brief, for petitioners.
George R. Salem, Sol. of Labor, with whom Cynthia L. Attwood, Associate Sol., Sandra Lord, Acting Counsel, and Andrea C. Casson, Asst. Counsel, Washington, D.C., were on the brief, for the Secretary of Labor.
Before ROBINSON and D.H. GINSBURG, Circuit Judges, and MacKINNON, Senior Circuit Judge.
The International Chemical Workers Union and Public Citizen Health Research Group ("Petitioners") have petitioned the court for a writ of mandamus. Petitioners seek to compel the Secretary of Labor and the Assistant Secretary for the Occupational Safety and Health Administration ("agency" or "OSHA") to take emergency action to protect workers from the deleterious effects of exposure to cadmium. We have treated the petition for a writ of mandamus as a petition for review of OSHA's final decision not to issue an emergency temporary standard ("ETS") for cadmium. Following a thorough review of the record, we deny the petition for review.
On June 25, 1987, petitioners filed a petition for a writ of mandamus and a motion to expedite with the court. Petitioners sought the writ to compel OSHA to issue an ETS that would significantly lower the permissible exposure limits for cadmium in the workplace. Petitioners had, more than a year before, filed a rulemaking petition with OSHA requesting such emergency action pursuant to 29 U.S.C. Sec. 655(c) (1982). 1 At the time the petition for a writ of mandamus was filed with the court, OSHA had failed to act upon the request for emergency rulemaking.
On July 1, OSHA denied the petition for an ETS. Unaware that the agency had finally acted to deny the rulemaking request, we granted, on July 2, the motion to expedite review of the petition for a writ of mandamus. We also ordered that all briefing be completed by July 30, 1987. We now have the benefit of final agency action and full briefing by the parties. Thus, in view of the unusual circumstances recited supra, and because of the judicial economy involved, we will treat the petition for a writ of mandamus as a petition for review of OSHA's denial of the petition for an ETS for cadmium.
We have recognized in the past that the authority to establish emergency standards pursuant to 29 U.S.C. Sec. 655(c) is an "extraordinary power" that is to be "delicately exercised" in only certain "limited situations." Public Citizen Health Research Group v. Auchter, 702 F.2d 1150, 1155 (D.C.Cir.1983). We have further recognized that emergency standards are an "unusual response" to "exceptional circumstances." Id., see Florida Peach Growers Ass'n, Inc. v. United States Dep't of Labor, 489 F.2d 120, 129 (5th Cir.1974); Dry Color Manufacturers' Ass'n, Inc. v. United States Dep't of Labor, 486 F.2d 98, 104 (3d Cir.1973).
In deciding whether to exercise the "extraordinary power" to issue an ETS, OSHA must determine whether "employees are exposed to grave danger" and whether an emergency standard is "necessary" to protect them from such danger. 29 U.S.C. Sec. 655(c). Such a determination is necessarily based upon " 'considerations of policy as well as empirically verifiable facts' ". Public Citizen Health Research Group v. Auchter, 702 F.2d at 1156, quoting Industrial Union Dep't v. American Petroleum Institute, 448 U.S. 607, 655 n. 62, 100 S.Ct. 2844, 2871 n. 62, 65 L.Ed.2d 1010 (1980). OSHA's assessment of such facts, which are often scientifically complex, and its balancing of the competing policies that underlie the decision whether to issue an ETS, are entitled to great deference. Id. Our limited review is not to determine whether we, as a reviewing court, would issue emergency standards for cadmium, but rather, whether OSHA's decision not to issue such standards lacks support in the record. Id. We cannot say that such support is lacking here.
The current OSHA standard for cadmium has been in effect for over sixteen years. Adopted from a national consensus standard in 1971, the current OSHA standard allows for a maximum permissible exposure level over an eight hour workshift (time weighted average or "TWA") of 100 ug/m 3 (micrograms per cubic meter) for cadmium fumes and 200 ug/m 3 for cadmium dust. The standard was promulgated pursuant to section 6(a) of the Occupational Safety and Health Act ("Act") which provided for a two year period after the adoption of the Act for promulgation of national consensus standards as occupational safety and health standards. See 29 U.S.C. Sec. 655(a). The standard for cadmium has never been revised.
It is undisputed, however, that in the sixteen years since the adoption and promulgation of the current cadmium standard, that reliable clinical and epidemiological research has established a clear link between cadmium exposure and irreversible kidney damage. In addition, studies of workers with occupational exposure to cadmium support a connection between cadmium and an increased risk of lung and prostate cancer. Indeed, OSHA has determined that the risk of lung cancer or kidney damage at current permissible exposure levels is "significant."
In response to the growing evidence of irreversible kidney damage and cancer at current permissible exposure levels, petitioners filed a rulemaking petition with OSHA in June of 1986. Petitioners sought an ETS pursuant to 29 U.S.C. Sec. 655(c) that would lower occupational exposure to cadmium and cadmium compounds to an eight hour TWA of 1 ug/m 3.
In support of their petition, petitioners relied upon an extensive array of reports and studies, some sixty in number, which, in their view, establish that actual exposure levels of cadmium in the workplace pose a grave risk of kidney damage and cancer. For its part, OSHA agrees that there is "clear evidence" that exposure to cadmium can result in irreversible kidney damage. Moreover, OSHA also agrees that the risk of lung cancer at current permissible levels appears to be significant.
OSHA concluded, however, that to be a "grave danger," it is not sufficient that a chemical, such as cadmium, can cause cancer or kidney damage at a high level of exposure. Rather, it is necessary, in OSHA's view, that a finding of "grave danger" to support an ETS be based upon exposure in actual levels found in the workplace. OSHA concluded that the currently available data was not sufficiently definitive on actual...
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