Pub Citizen Health v. Secretary of Labor, 122402 FED3, 02-1611

Docket Nº:02-1611
Party Name:Pub Citizen Health v. Secretary of Labor
Case Date:December 24, 2002
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Pub Citizen Health v. Secretary of Labor

02-1611

FED3

12/24/02

PRECEDENTIAL

Filed December 24, 2002

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 02-1611

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)

On Direct Petition Pursuant to the Administrative Procedure Act, 5 U.S.C. S 706

Argued: November 5, 2002

Before: BECKER, Chief Judge, McKEE and HILL,* Circuit Judges.

(Filed December 24, 2002) _________________________________________________________________

* The Honorable James C. Hill, United States Circuit Judge for the Eleventh Circuit Court of Appeals, sitting by designation.

SCOTT L. NELSON (ARGUED)

DAVID C. VLADECK

Public Citizen Litigation Group

1600 20th Street, NW

Washington, D.C. 20009

Counsel for Appellant

Public Citizen Litigation Group

EUGENE SCALIA

Solicitor of Labor

JOSEPH M. WOODWARD

Associate Solicitor for Occupational

Safety and Health

BRUCE JUSTH (ARGUED)

Counsel for Appellate Litigation

JOHN SHORTALL

U.S. Department of Labor

Room S4004, 2000 Constitution

Avenue, NW

Washington, D.C. 20210-0001

Counsel for Appellee

Occupational Safety and Health

Administration

ANDRE SHRAMENKO (ARGUED)

GLENN C. MERRITT

Fitzpatrick & Waterman

333 Meadowlands Parkway

Secaucus, New Jersey 07096

Counsel for Intervenor

Color Pigments Manufacturers Assoc.,

Inc.

2

JOHN L. WITTENBORN

MICHAEL O. HILL (ARGUED)

CHRISTINA B. PARASCANDOLA

Collier Shannon Scott, PLCC

3050 K Street, NW, Suite 400

Washington, D.C. 20007

Counsel for Intervenor

Chrome Coalition

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

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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 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.

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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.

  1. 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/toxreview/0144-tr- pdf. 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 æg/m3 permissible exposure limit ("PEL") for inhalation exposure to hexavalent chromium.1 That level did not reflect OSHA’s independent _________________________________________________________________

    1. Two things are noteworthy about this limit. First, it represents an absolute ceiling, not a time-weighted average. That is, at no time can a

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      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 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 æg/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. P 7.) Subsequently, however, NIOSH concluded that all forms of hexavalent chromium should be considered carcinogenic, and it recommended that the 1.9 æg/m3 standard be applied to all such compounds. (Id.) _________________________________________________________________

      particular environment’s level permissibly rise above 100 æg/m3, even if its time-weighted average is far lower. The construction industry alone is permitted to use time-weighted averaging. See 29 C.F.R. S 1926.55.

      Second, the 100 æg/m3 limit is reported as "CrO3." However, as only 52% of the mass of a CrO3 molecule is chromium, the actual permitted amount of hexavalent chromium is approximately 52æg/m3, reported as Cr(VI), the pure form. The existing permissible exposure limit is thus 100 æg/m3, reported as CrO3, or 52 æg/m3, reported...

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