International Chemical Workers Union, In re
| Decision Date | 20 March 1992 |
| Docket Number | No. 89-1357,89-1357 |
| Citation | 958 F.2d 1144 |
| Parties | , 22 Envtl. L. Rep. 21,036, 15 O.S.H. Cas. (BNA) 1529, 1992 O.S.H.D. (CCH) P 29,620 In re INTERNATIONAL CHEMICAL WORKERS UNION, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
David C. Vladeck, Katherine A. Meyer, Public Citizen Litigation Group, Washington, D.C., for petitioner appellant.
Barbara Werthman, Ann Rosenthal, Cynthia L. Att, Dept. of Labor, Washington, D.C., for appellee respondent.
Before WALD, RUTH BADER GINSBURG, and SILBERMAN, Circuit Judges.
Opinion for the Court filed PER CURIAM.
PETITION FOR WRIT OF MANDAMUS
I.
Six years ago, petitioners International Chemical Workers Union and Public Citizen Litigation Group filed a rulemaking petition with OSHA requesting it to issue immediately an Emergency Temporary Standard ("ETS") under section 6(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 655(c) (1988), for occupational exposure to cadmium. See Petition (dated June 18, 1986). Petitioners asserted that
[i]n light of the new human evidence on lung cancer, it is clear that the present OSHA standard is grossly inadequate, and there is absolutely no justification for further regulatory delay. Since no exposure to a carcinogen is considered to be safe, OSHA must regulate cadmium as a carcinogen and set as low a standard as possible.
Id. at 3. 1
In October 1986 and again in February 1987, petitioners inquired of OSHA about the status of their petition. After a full year had passed, petitioners filed in June 1987 for a writ of mandamus in this court to compel OSHA to take emergency action to protect workers from exposure to cadmium. One week later, on July 1, 1987, OSHA finally responded to petitioners' request. See Letter from OSHA to Petitioners (dated July 1, 1987) ("OSHA's July 1987 Response"). Although OSHA agreed that "there is clear evidence that exposure to cadmium can result in irreversible damage to the kidneys," the agency nonetheless refused to issue an ETS:
[B]ased on our analysis of your petition and the underlying data, OSHA finds that the currently available data are not sufficiently definitive in certain critical areas to support the need for an ETS, particularly in light of the extremely stringent statutory criteria for issuing and sustaining such an action.
Id. at 2. Even though it denied petitioners' request to proceed under section 6(c), OSHA admitted that "there is a need to embark promptly on further rulemaking" under the traditional section 6(b) procedures. Id. at 5.
In light of OSHA's announcement of its intention promptly to initiate rulemaking, this court treated the mandamus petition as one for review of OSHA's denial of an ETS, In re International Chemical Workers Union, 830 F.2d 369, 370 (D.C.Cir.1987) (per curiam). It denied the petition, concluding that OSHA is entitled to "great deference" in its assessment of scientifically complex facts and in its "balancing of the competing policies that underlie the decision whether to issue an ETS." Id. at 371.
OSHA stated at that time that i.e., in June 1989. OSHA's July 1987 Response at 2. After OSHA had missed its December 1987 timetable for proposing a rule, petitioners warned that
[i]n light of the magnitude of this risk, we cannot stand by while OSHA persists in foot-dragging. Unless we are promptly assured that OSHA intends to expedite the cadmium rulemaking, and are provided realistic milestones with which we can chart the agency's progress, we will be compelled to once again take legal action to force the agency to move expeditiously in this rulemaking.
Letter from Petitioners to OSHA (dated June 29, 1988) at 2. OSHA responded that "[i]t is the Agency's intention to move as quickly as possible to establish a standard for cadmium" and that the proposed rule would be published "in late summer or early fall" of 1988. See Letter from OSHA to Petitioners (dated Aug. 10, 1988). At this point, OSHA was lagging almost a year behind its original rulemaking schedule.
In September 1988, OSHA issued guidelines to employers who produce or use cadmium to alert them to the inadequacy of OSHA's current exposure standards. See OSHA, U.S. Dep't of Labor, Protective Measures for Controlling Exposure to Cadmium (1988). These guidelines, however, were unenforceable and were intended to serve only as an interim measure, pending the adoption of a final rule. Two months later, in November 1988, OSHA informally circulated a draft proposed standard to members of the Construction Advisory Committee and held a public meeting. However, OSHA never published the proposed rule in 1988 as its altered schedule had promised.
Seven months more went by without a proposed rule, and petitioners once again wrote to respondents, expressing their "deep and long-standing concern that [OSHA] has unreasonably delayed adoption of a new standard to protect workers from the devastating health effects" attributable to cadmium exposure. Letter from Petitioners to Secretary of Labor (dated Mar. 21, 1989) at 1. In its reply, OSHA proposed still another postponement:
It is anticipated that the earliest a proposed standard could be published would be in the fall of this year [1989]. If the rulemaking then proceeds routinely, it is likely to take until June 1991 to complete the Final standard. While OSHA has not met the schedule previously proposed, OSHA staff has worked diligently to expedite the development of this standard, which involved complex issues.
Letter from OSHA to Petitioners (dated Apr. 18, 1989) at 1. This revised schedule was now two years behind that which OSHA originally proposed to the court at the time of petitioners' request for an ETS.
In June 1989, petitioners petitioned this court for a writ of mandamus to compel OSHA to issue a proposed cadmium standard within one month and a final rule within one year. OSHA opposed any imposition of deadlines, representing to the court that it intended to produce a final cadmium standard within 18 months of publication of the proposal. On October 6, 1989, OSHA informed this court that after submitting a Notice of Proposed Rulemaking to the Office of Management and Budget ("OMB"), discussions between the Department of Labor and OMB were proceeding on an expedited basis. After oral argument, this court issued an order concluding that it is "reasonable to estimate that OMB should be able to complete its review of the proposed cadmium rule within three months of the date of this order" and that, by the end of the three-month period, OSHA should "file a report with the court indicating the status of the proposed rule and the date by which the agency expects to issue a final cadmium rule." Order (filed Oct. 20, 1989).
On January 22, 1990, respondents filed the required status report. They stated that OMB had completed its review of the proposed rule on January 19 and that OSHA would deliver it to the Federal Register on January 25. OSHA also argued that "[i]f this Court does set a date for issuance of a final rule, OSHA suggests the agency be allowed 18 to 24 months from publication of the proposed rule." Secretary of Labor's Status Report (filed Jan. 22, 1990) at 2 (emphasis added). Petitioners objected that OSHA was now stating for the first time that it would require 24 months, not 18, from notice of the proposed rule to the completion of the rulemaking. Under OSHA's new timetable, the issuance date was pushed forward to 1992.
The proposed rule was published in the Federal Register on February 6, 1990. See 55 Fed.Reg. 4052 (1990) (). In a subsequent order, we stated that "[w]e are satisfied with OSHA's compliance to this point, but note that OSHA's current projection of a 24-month period from the date of publication of the proposed rule to the publication of a final rule exceeds by six months the 18-month period it projected in its brief, which was filed several months ago." Order (filed Feb. 12, 1990) at 1-2. The court continued to retain jurisdiction over the case and ordered OSHA to submit a status report every six months until a final rule was published.
Over the next two years, respondents filed three status reports: On August 13, 1990 (reporting that public hearings were held in June and July, 1990); February 12, 1991 (reporting that the comment period had closed on October 18, 1990 and that the OSHA staff is "well underway in the process of reviewing and analyzing the record" of hearings and submissions); and on August 12, 1991 (reporting that "preliminary drafts of significant portions of the text of the standard and of the accompanying preamble" have been completed and that OSHA anticipated reopening the record for the limited purpose of soliciting comments on new information concerning carcinogenicity of certain cadmium compounds).
Respondents' latest status report was filed on February 12, 1992 and reported, disappointingly, that "despite the progress to date, OSHA was unable to promulgate the final standard within 24 months of the proposal as projected." Secretary of Labor's Status Report (filed Feb. 12, 1992) ("1992 Status Report") at 2. Respondents predicted that the final rule would not be published until August 31, 1992. Id.
Respondents gave three reasons for this latest delay in the issuance of the final rule beyond the original 24 month period. First, the OSHA staff member responsible for producing the final risk assessment resigned unexpectedly in the fall of 1991 before completing it. "[A] significant amount of time was required to familiarize the contractor with the...
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