1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-16-1998

Oil Chem Atomic v. OSHA

Precedential or Non-Precedential:

Docket 97-3532

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Recommended Citation

"Oil Chem Atomic v. OSHA" (1998). 1998 Decisions. Paper 50.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/50
Filed March 16, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-3532 

OIL, CHEMICAL AND ATOMIC WORKERS UNION 

and PUBLIC CITIZEN'S HEALTH RESEARCH GROUP, 

 Petitioners, 

v. 

OCCUPATIONAL SAFETY AND HEALTH 

ADMINISTRATION, GREGORY WATCHMAN, Acting 

Administrator of the Occupational Safety and Health

Administration, ALEXIS HERMAN, Secretary of Labor,

 Respondents. 

On Petition for an Order Compelling Respondents 

to Cease Unreasonable Delay and to Initiate a Rulemaking 

on Hexavalent Chromium 

Submitted under Third Circuit LAR 34.1(a) 

March 13, 1998 

Before: GREENBERG, SCIRICA and ALDISERT, 

Circuit Judges. 

(Filed March 16, 1998) 

Order Amending Memorandum Opinion 

Filed March 16, 1998 
 Colette G. Matzzie 

 David C. Vladeck 

 PUBLIC CITIZEN LITIGATION 

 GROUP 

 1600 20th Street, N.W. 

 Washington, D.C. 20009 

 Attorneys for PETITIONERS 

 John Shortall 

 Marvin Krislov, Deputy Solicitor for 

 National Operations 

 Joseph M. Woodward, Associate 

 Solicitor for Occupational Safety and 

 Health 

 Barbara Werthmann, Counsel for 

 Appellate Litigation 

 UNITED STATES DEPARTMENT OF 

 LABOR 

 200 Constitution Avenue, N.W. 

 Washington, D.C. 20210 

 Attorneys for RESPONDENTS 

 John L. Wittenborn 

 Michael O. Hill 

 Joseph J. Green 

 COLLIER, SHANNON, RILL & 

 SCOTT, PLLC 

 3050 K Street, N.W. 

 Washington, D.C. 20007 

 Gary M. Marek 

 KITTREDGE, DONLEY, ELSON, 

 FULLEM & EMBICK, LLP 

 421 Chestnut Street 

 Philadelphia, PA 19106 

 Attorneys for INTERVENOR 

 THE CHROME COALITION 

 2 
 Andre Shramenko 

 Glenn C. Merritt 

 FITZPATRICK & WATERMAN 

 400 Plaza Drive 

 Secaucus, NJ 07096 

 Attorneys for INTERVENOR 

 COLOR PIGMENTS MANUFACTURERS 

 ASSOCIATION, INC. 

OPINION OF THE COURT 

ALDISERT, Circuit Judge. 

Before the Court is not a petition for review of the final 

order of an administrative agency but a petition for an 

order compelling the respondents, the Occupational Safety 

and Health Administration ("OSHA"), its Acting 

Administrator and the Secretary of Labor, to cease 

unreasonable delay in rulemaking on hexavalent 

chromium. In addition, petitioners Oil, Chemical and 

Atomic Workers Union and Public Citizen's Health Research 

Group request this court to: (1) retain jurisdiction to 

monitor OSHA's performance; (2) require OSHA to submit 

periodic status reports; (3) authorize petitioners to conduct 

discovery before recommending to this Court a feasible 

schedule for the rulemaking and (4) direct OSHA to issue a 

proposed rule and a final standard for hexavalent 

chromium within a firm timetable. 

Petitioners allege that we have subject matter jurisdiction 

over their claims pursuant to three statutes: (1) The All 

Writs Act, 28 U.S.C. S 1651(a), (2) the judicial review 

provisions of the Occupational Health and Safety Act, 29 

U.S.C. S 655(f), and (3) the Administrative Procedure Act, 5 

U.S.C. S 706(1). We hold that a writ of mandamus is not 

available under these circumstances and, even though this 

Court is vested with jurisdiction to review the Secretary's 

actions for unreasonable delay, the facts here do not 

warrant our intervention in the agency's rulemaking. We 

will therefore deny the petition. 

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I. 

Chromium has, in one form or another, been used since 

the eighteenth century in various industries, most 

significantly in the production of metal alloys. Chromium 

VI, or hexavalent chromium, is a structural and anticorrosive element which has been used in the metal,

chemical, pigment, aviation and graphics industries, among 

others.1 In 1997, OSHA estimated that between 200,000 

and 700,000 workers in these industries are regularly 

exposed to hexavalent chromium. 62 Fed. Reg. at 21978 

(1997). 

In 1971, in response to concerns that hexavalent 

chromium is a carcinogen, OSHA exercised its rulemaking 

authority and adopted a national consensus standard for 

hexavalent chromium. See 29 U.S.C. S 655(a) (directing the 

Secretary to promulgate such standards immediately upon 

passage of the OSH Act in 1970). This standard, which is 

still in effect today, set for workers a permissible exposure 

limit ("PEL") of 100 micrograms of chromium per cubic 

meter of air (100 ug/m3). 29 C.F.R. S 1910.1000. 

In July 1993, Petitioners filed their first petition for 

rulemaking with OSHA requesting emergency action under 

the OSH Act, 29 U.S.C. S 655(c).2 That petition pointed to 

contemporary studies of the elevated risks of respiratory 

cancer for workers exposed to hexavalent chromium, and 

requested that the Secretary immediately lower the PEL for 

hexavalent chromium in the workplace. The Secretary

declined to set an emergency temporary standard because 

he found the evidence insufficient to support the allegation 

that a standard was immediately "necessary" to protect 

_________________________________________________________________ 

1. Hexavalent chromium includes agents such as chromic acid (used in 

chrome plating), potassium dichromate (chemistry and various 

industries) and lead chromate (pigment). 

2. 29 U.S.C. S 655(c) provides, in relevant part: 

 The Secretary shall provide . . . for an emergency temporary 

 standard . . . 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. 

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workers from such a "grave danger." Instead, OSHA 

undertook research into proposed rulemaking regarding 

hexavalent chromium. "We anticipate," it wrote the 

petitioners, "that Notice of Proposed Rulemaking will be 

published in the Federal Register not later than March 

1995." 

Because of many unanticipated factors--the release of a 

breakthrough study on workers exposed to chromium 

which necessitated detailed examination, "the results of the 

November 1994 elections" in Congress, government 

shutdowns, budget cuts, the need to study potential

compliance with a new PEL, the need to consult with small 

businesses and the reprioritizing of other agency projects-- 

OSHA has not issued a notice of proposed rulemaking on 

hexavalent chromium. It now anticipates a September 1999 

date as its tentative deadline for a rulemaking proposal. 

II. 

A. 

This is an unusual petition requesting extraordinary 

relief. First, we must set forth our jurisdictional posture to 

consider such a petition. We find that under the OSH Act, 

this Court is vested with jurisdiction to conduct judicial 

review over health and safety standards issued by the 

Secretary of Labor, as well as over claims in which the 

Secretary has not yet acted but where her delay is allegedly 

unreasonable. The OSH Act, 29 U.S.C. S 655(f), provides: 

 Any person who may be adversely affected by a 

 standard issued under this section may at any time 

 prior to the sixtieth day after such standard is 

 promulgated file a petition challenging the validity of 

 such standard with the United States court of appeals 

 for the circuit wherein such person resides or has his 

 principal place of business, for a judicial review of such 

 standard. 

On its face, the statute grants jurisdiction to the courts of 

appeals for standards already issued by the Secretary. 

Nevertheless, courts have interpreted the OSH Act's grant 

 5 
of jurisdiction, when read in conjunction with the APA, as 

enabling judicial review not only of standards already 

promulgated, but also of "agency action unlawfully withheld 

or unreasonably delayed". See Action on Smoking & Health 

v. Department of Labor, 28 F.3d 162, 163-164 (D.C. Cir. 

1994) (OSH Act S 655(f) and APA "respectively confer 

jurisdiction on this court . . . over suits seeking relief from 

agency inaction or delay that jeopardizes our future 

statutory power of review."); Public Citizen's Health 

Research Group v. Brock, 823 F.2d 626, 629 (D.C. Cir. 

1987) (reviewing OSHA's delay in rulemaking). In fact, 

where administrative enabling statutes such as the OSH 

Act grant exclusive jurisdiction to a particular court to 

review past actions of an agency, that court necessarily has 

the exclusive jurisdiction to review inaction, as well. See 

Telecommunications Research & Action Ctr. v. FCC, 750 

F.2d 70, 75 (D.C. Cir. 1984). 

Next, because this Court has been vested with exclusive 

jurisdiction over OSHA standards, the APA determines the 

scope of our review when standards have not yet been 

promulgated: "To the extent necessary," we shall "compel 

agency action unlawfully withheld or unreasonably 

delayed". 5 U.S.C. S 706(1); see also Williams v. National 

School of Health Tech., Inc., 836 F. Supp. 273, 280 (E.D. Pa. 

1993) ("The correct mechanism for bringing a claim of 

unreasonable delay in promulgating regulations is the 

Administrative Procedure Act (`APA') which specifically 

provides that a court may `compel agency action 

unreasonably delayed.' 5 U.S.C. S 706(1)."). 

B. 

Applying these principles to review OSHA's rulemaking 

process for unreasonable delay here, we are called upon to 

balance the importance of the subject matter being 

regulated with the regulating agency's need to discharge all 

of its statutory responsibilities under a reasonable 

timetable. See Environmental Defense Fund v. United States 

Nuclear Regulatory Comm'n, 902 F.2d 785, 789-790 (10th 

Cir. 1990); Cutler v. Hayes, 818 F.2d 879, 896 (D.C. Cir. 

1987). With this balance in mind, unreasonable delay 

should be measured by the following factors: 

 6 
 First, the court should ascertain the length of time that 

 has elapsed since the agency came under a duty to act. 

 Second, the reasonableness of the delay should be 

 judged in the context of the statute authorizing the 

 agency's action. Third, the court should assess the 

 consequences of the agency's delay. Fourth, the court 

 should consider "any plea of administrative error, 

 administrative inconvenience, practical difficulty in 

 carrying out a legislative mandate, or need to prioritize 

 in the fact of limited resources." 

The Raymond Proffitt Found. v. United States Envtl.

Protection Agency, 930 F. Supp. 1088, 1102 (E.D. Pa. 1996) 

(quoting In re Chem. Workers Union, 958 F.2d 1144, 1149 

(D.C. Cir. 1992)). In the end, application of these factors to 

a particular case is fact-intensive. We must begin a 

discussion of agency action, or inaction, by affording the 

agency "considerable deference in establishing a timetable 

for completing its proceedings." Cutler, 818 F.2d at 896. 

Distilled to its essence, this petition by Oil, Chemical and 

Public Citizen would have us intrude into the quintessential 

discretion of the Secretary of Labor to allocate OSHA's 

resources and set its priorities. It is certainly true that 

"[d]elays that might be altogether reasonable in the sphere 

of economic regulation are less tolerable when human lives 

are at stake." Cutler, 818 F.2d at 989; see also 

Environmental Defense Fund, 902 F.2d at 789. This 

presupposes, however, that the evidence before the agency 

sufficiently demonstrates that delay will in fact adversely 

affect human health to a degree which necessitates a 

priority response. The Petitioners allege that between 88 

and 342 out of every 1,000 workers exposed to hexavalent 

chromium will die from cancer attributable to the 

chromium exposure. Petitioners' Mem. at 17. On the other 

hand, the Respondents and Intervenors raise serious

questions about the validity of the data and assumptions 

underlying the Petitioners' calculations. For example, 

Intervenor Color Pigments Manufacturers Association, Inc. 

argues that the Petitioners are wrong to assume that all 

workers in industries dealing with chromium in some way 

or another are exposed to 100 ug/m3 hexavalent chromium, 

every working day for 45 years. Color Pigments asserts that 

 7 
this calculation is faulty because it fails to consider that 1) 

OSHA's lead PEL standard, 29 C.F.R. S 1910.1025(c),

reduces all workers' lead exposure, which in turn reduces 

chromium exposure by one-half for workers in the pigment 

industry; 2) pigment workers often breathe through 

respirators which protect them from exposure to lead and 

chromium and 3) the Petitioners' calculations fail to 

distinguish between lead chromate, a chromium compound 

with levels of bioavailability and toxicity that have not been 

linked to any cancer, and other hexavalent chromium

compounds used in different industries. Id. at 5-8. In 

addition, Intervenor The Chrome Coalition points to a 

plethora of studies which demonstrate the inconclusivity of 

hexavalent chromium's role in causing cancer because the 

effects of smoking and asbestos exposure on workers have 

not been fully considered. Chrome Coalition Mem. at 14-15 

n.10. Faced with such varying data and differing 

interpretations as these studies represent, this Court is not 

in a position to tell the Secretary how to do her job. 

"OSHA not only possesses enormous technical expertise 

we lack, but must juggle competing rulemaking demands 

on its limited scientific and legal staff." Brock, 823 F.2d at 

629; see also Environmental Defense Fund, 902 F.2d at 

789. Its various obligations notwithstanding, OSHA has 

been far from idle in its consideration of hexavalent 

chromium. This is not a subject matter to which the agency 

has never given a thought, but is rather already regulated 

in the workplace by the agency's current standards.

Moreover, OSHA has amassed a wealth of data reanalyzing 

the health risks of hexavalent chromium and is currently in 

the process of collecting information about the feasibility of 

any proposed alterations to the standards now in place. 

Although 5 U.S.C. S 706(1) directs reviewing courts to 

"compel agency action unlawfully withheld or unreasonably 

delayed," we are satisfied that the facts alleged here do not 

demonstrate inaction that is either contrary to a specific 

Congressional mandate, in violation of a specific court 

order or unduly transgressive of the agency's own tentative 

deadlines. Cf. United Steelworkers of America v. 

Pendergrass, 819 F.2d 1263, 1270 (3d Cir. 1987) (enforcing 

prior judgment); United Steelworkers of America v. Auchter, 

763 F.2d 728, 739 (3d Cir. 1985) (ordering reformulation of 

 8 
standard to comply with statutory directive). We therefore 

conclude that, on the record accompanying this petition, 

OSHA has not "unlawfully withheld or unreasonably 

delayed" the responsibility of rulemaking. 

III. 

Having concluded that the facts and the law presented 

before us do not establish a necessity for us to intervene in 

the Secretary's discretion to conduct the affairs of OSHA in 

this matter, it is clear that we do not have the authority to 

grant relief under the All Writs Act, 28 U.S.C.S 1651(a). "In 

order to secure a writ of mandamus, petitioner must

establish that the government officer in question has a nondiscretionary duty to perform the specified action. The legal 

duty must be `clear and indisputable.' " See Virgin Islands 

v. Douglas, 812 F.2d 822, 832 (3d Cir. 1987). On the basis 

of the allegations contained in the petition and the 

responses to them, we cannot grant relief under the

concept of mandamus. Howsoever other courts of appeals 

may construe this writ, the tradition of this Court and its 

ruling case law severely limit the grant of mandamus relief. 

A writ is not available here. 

* * * * * * * 

We have considered all arguments advanced by the 

parties and have concluded that no further discussion is 

necessary. 

The petition for an order will be denied. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 9