INTERN. UNION, UNITED AUTO. v. Donovan, Civ. A. No. 82-2401.

• Court: United States District Courts. United States District Court (Columbia)
• Writing for the Court: Randy S. Rabinowitz, Zwerdling, Schlossberg, Leibig & Kahn, Washington, D.C., for plaintiff
• Citation: 590 F. Supp. 747
• Parties: INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE, AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, et al., Plaintiffs, v. Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, et al., Defendants.
• Docket Number: Civ. A. No. 82-2401.
• Decision Date: 02 July 1984

590 F. Supp. 747

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE, AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, et al., Plaintiffs, v. Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, et al., Defendants.

Civ. A. No. 82-2401.

United States District Court, D. Columbia.

July 2, 1984.

Randy S. Rabinowitz, Zwerdling, Schlossberg, Leibig & Kahn, Washington, D.C., for plaintiff.

John D. Bates, Asst. U.S. Atty., Washington, D.C., for defendant.

Donald L. Morgan, Cleary, Gottlieb, Steen & Hamilton, Washington, D.C., for intervenor defendant Formaldehyde Institute, Inc.

MEMORANDUM

JOHN LEWIS SMITH, Jr., District Judge.

The United Automobile Workers and the American Public Health Association bring this action for declaratory and injunctive relief against the Secretary of Labor and the Assistant Secretary of Labor for Occupational Safety and Health (hereinafter "OSHA" or "agency"). On March 3, 1983, the Formaldehyde Institute, a trade association composed of producers of formaldehyde and formaldehyde products, intervened as a party defendant. Currently before the Court are cross-motions for summary judgment.

On October 26, 1981, the UAW and thirteen other labor organizations petitioned OSHA to issue an Emergency Temporary Standard ("ETS") under Section 6(c) of the Occupational Safety and Health Act, 29 U.S.C. § 655(c), regarding workplace exposure to formaldehyde. The unions, citing evidence that formaldehyde may pose a "cancer risk to humans," requested that the ETS limit exposure to the lowest feasible level, and that employers be required to monitor exposures and provide protective clothing, respirators, and training to exposed employees. On January 29, 1982, OSHA denied the petition. Seven months later, plaintiffs filed this suit, seeking a declaration that OSHA's action was "arbitrary and capricious" and an order directing OSHA to immediately issue an ETS and begin permanent rulemaking proceedings under Section 6(b)(5) of the Act.

This is a case about an agency's decision not to act. Upon consideration of the voluminous record in this matter, and of the relevant statutory provisions and purposes, the Court concludes that while it should not compel issuance of an ETS, it should direct OSHA to reconsider its denial of plaintiff's petition and also its decision to refrain from instituting permanent rulemaking proceedings. As outlined below, a combination of factors support remanding the matter to the agency.

A. The OSHA Decision

Plaintiffs' petition cited animal studies conducted by the Chemical Institute of Toxicology ("CIIT") and by New York University ("NYU") on the physiological effects of exposure to airborne formaldehyde. OSHA regulations, issued in 1972 because of formaldehyde's documented irritant qualities, limit workplace exposures to a time-weighted average of no more than three parts per million ("ppm") in any eight-hour period. See 29 C.F.R. 1910.-1000(b) (Table Z-2). The animal studies involved exposures of rats and mice at levels both above and below that limit:

"The CIIT tests show a 44 percent incidence of nasal cancer in rats at 14.3 ppm (103 carcinomas out of 232 animals examined), 0.9 percent incidence (not statistically significant) at 5.6 ppm (2 carcinomas/235 animals examined), and zero incidence at 2.0 ppm. The rats were exposed for six hours a day, five days a week, for up to two years (virtually the lifetime of the rats). In mice similarly exposed, CIIT found a 0.9 percent incidence (not statistically significant) at 14.3 ppm (2/235), and a zero incidence at 5.6 ppm and 2 ppm. Id." Intervenor's Stmt. Mat. Facts ¶ 4.

"The NYU study examined rats exposed to formaldehyde at levels of 14 ppm. After approximately 1½ years of exposure, a statistically significant incidence of nasal cancer was observed in animals exposed to this substance alone and in combination with hydrogen chloride, while the animals not exposed at all or only to hydrogen chloride exhibited no heightened levels of such cancers (R. 3, p. 11-12, 20)." Def.Pts.Auth.Mo.S.J. at 10-11.

See also Gulf South Insulation v. CPSC, 701 F.2d 1137, 1146 (5th Cir.1983) (describing CIIT study). Plaintiffs also attached supporting documents pertaining to occupational exposures to formaldehyde and concluded that "worker formaldehyde exposures frequently occur at air levels comparable to those leading to cancer in rats."

OSHA found that these materials did not support "emergency action on formaldehyde ... at this time:"

"The primary evidence upon which your petition stands are two new animal studies performed by the Chemical Industry Institute of Toxicology and New York University. The animal data indicates that formaldehyde causes nasal tumors in test animals at relatively high levels of exposure. However, in the studies these results are statistically significant only at exposure levels of approximately 15 ppm, substantially above the current permissible exposure limit (PEL) for formaldehyde of 3 ppm. Risk assessments that OSHA has performed on the animal data suggest that the risk from formaldehyde exposure at the PEL, when compared with other occupational risks, is not sufficient to warrant a finding of `grave danger' and resulting emergency action. "In all ETS situations, OSHA must not only sustain the burden of proving that the ETS is justified by a grave danger, which we do not believe exists here, but also that the emergency action is necessary to protect employees. Information which you submitted along with your petition, such as the NIOSH monitoring results, indicates that exposure levels are generally below the current PEL of 3 ppm. This information is corroborated by OSHA inspection data ... Since OSHA already has a standard for formaldehyde which requires employee exposure to airborne formaldehyde to be kept quite low, and there are a number of other OSHA standards which will contribute to the protection of formaldehyde-exposed employees in certain circumstances, the data you submitted would not enable us to make a showing that the emergency action you request is necessary."

B. Standard of Review

OSHA actions involving its ETS powers are not the subject of frequent litigation. There are only four reported cases construing § 6(c), and but one of them — Public Citizen Health Research Group v. Auchter, 702 F.2d 1150 (D.C.Cir.1983) — addresses an OSHA decision not to issue an ETS.¹ Moreover, only two of the four cases — Public Citizen, supra and Asbestos Information Ass'n/North America v. OSHA, supra, — arose after the Supreme Court's 1980 decision in Industrial Union Dep't v. American Petroleum Institute, 448 U.S. 607, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980) ("API"), a ruling coloring all subsequent interpretations of the standard-setting provisions of the Act, including § 6(c) (see infra at 17-19). Despite the paucity of cases, however, a number of factors have emerged from the cases and from general principles of administrative law that counsel an extremely narrow standard of judicial review in ETS litigation.

Section 6(c) provides in pertinent part:

"(c)(1) The Secretary shall provide, without regard to the requirements of chapter 5 of Title 5, for an emergency temporary standard to take immediate effect upon publication in the Federal Register 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.

"(3) Upon publication of such standard in the Federal Register the Secretary shall commence a proceeding in accordance with subsection (b) of this section, and the standard as published shall also serve as a proposed rule for the proceeding. The Secretary shall promulgate a standard under this paragraph no later than six months after publication of the emergency standard as provided in paragraph (2) of this subsection." 29 U.S.C. § 655(c).

Several aspects of the statute are noteworthy. First, § 6(c) is mandatory in nature; once the appropriate findings are made, the agency "shall" issue an ETS. See Public Citizen, supra, 702 F.2d at 1156. Second, an ETS is short-lived; its issuance triggers commencement of permanent rulemaking proceedings under § 6(b)(5), and a permanent rule must issue "no later than six months" after publication of the ETS. Cf. Asbestos Information Assn, supra, 727 F.2d at 422, 426; Florida Peach Growers Ass'n v. United States Dep't of Labor, supra, 489 F.2d at 130 n. 16; Dry Color Manufacturers Ass'n v. United States Dep't of Labor, supra, 486 F.2d at 104-05 n. 9a. Third, the Act specifically exempts ETS determinations from the rulemaking (i.e., notice and comment) requirements of the Administrative Procedure Act ("APA"). Cf. Asbestos Information Ass'n, supra, 727 F.2d at 422, 426; Florida Peach Growers Ass'n, supra, 489 F.2d at 130 n. 16; Dry Color Manufacturers Ass'n, supra, 486 F.2d at 104-05 n. 9a. Fourth, while the Act does provide guidelines for review of agency emergency standards, see 29 U.S.C. § 655(f), it does not address agency decisions not to issue them. Consequently, the APA's general provision concerning judicial review of informal agency action — the "arbitrary and capricious" test of 5 U.S.C. § 706(2) — provides the standard of review. See Public Citizen, supra, 702 F.2d at 1156-57. Fifth and finally, OSHA cannot issue an ETS unless it determines that employees are exposed to "grave danger" and that immediate action is "necessary" to protect them. Needless to say, "the gravity and necessity requirements lie at the center of proper invocation of the ETS powers." Asbestos Information Ass'n, supra, 727 F.2d at 424.

Not surprisingly, the courts, considering the emergency and non-public character of ETS proceedings, consistently hold that the ETS power may be employed only in "limited situations." Public Citizen, supra, 702 F.2d at 1155. Section 6(c) repres...