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. e du/thir dc ir c uit_1998/50Filed 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 Rulem aking
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, 1998Colette 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

2Andre 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 th e final order of an administrative agency but a petition fo r 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 an d
Atomic Workers Union and Public Citizen's Health Re search Group request this court to: (1) retain jurisdictio n to monitor OSHA's performance; (2) require OSHA to sub mit periodic status reports; (3) authorize petitioners to conduct discovery before recommending to this Court a feasi ble 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 juri sdiction over their claims pursuant to three statutes: (1) T he All Writs Act, 28 U.S.C. S 1651(a), (2) the judicial re view provisions of the Occupational Health and Safety Ac t, 29 U.S.C. S 655(f), and (3) the Administrative Procedu re Act, 5 U.S.C. S 706(1). We hold that a writ of mandamus is not available under these circumstances and, even thoug h this Court is vested with jurisdiction to review the Sec retary's actions for unreasonable delay, the facts here do n ot warrant our intervention in the agency's rulemaking . We will therefore deny the petition.

3I.

Chromium has, in one form or another, been used sin ce the eighteenth century in various industries, most significantly in the production of metal alloys. Ch romium VI, or hexavalent chromium, is a structural and ant icorrosive element which has been used in the metal, chemical, pigment, aviation and graphics industries , among others.1 In 1997, OSHA estimated that between 200,0 00 and 700,000 workers in these industries are regular ly exposed to hexavalent chromium. 62 Fed. Reg. at 219 78 (1997).

In 1971, in response to concerns that hexavalent chromium is a carcinogen, OSHA exercised its rulema king authority and adopted a national consensus standard for hexavalent chromium. See 29 U.S.C. S 655(a) (direct ing the Secretary to promulgate such standards immediately upon passage of the OSH Act in 1970). This standard, whi ch is still in effect today, set for workers a permissibl e exposure limit ("PEL") of 100 micrograms of chromium per cub ic meter of air (100 ug/m3). 29 C.F.R. S 1910.1000.

In July 1993, Petitioners filed their first petitio n for rulemaking with OSHA requesting emergency action un der the OSH Act, 29 U.S.C. S 655(c).2 That petition po inted to contemporary studies of the elevated risks of respi ratory 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 bec ause he found the evidence insufficient to support the a llegation that a standard was immediately "necessary" to prot ect

___________________________________________________ ______________

1. Hexavalent chromium includes agents such as chro mic acid (used in chrome plating), potassium dichromate (chemistry an d various industries) and lead chromate (pigment).

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

The Secretary shall provide . . . for an eme rgency temporary standard . . . if he determines (A) that emp loyees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new h azards, and (B) that such emergency standard is necessary to prot ect employees from such danger.

4workers from such a "grave danger." Instead, OSHA

undertook research into proposed rulemaking regardi ng hexavalent chromium. "We anticipate," it wrote the petitioners, "that Notice of Proposed Rulemaking wi ll be published in the Federal Register not later than Ma rch
1995."

Because of many unanticipated factors--the release of a breakthrough study on workers exposed to chromium which necessitated detailed examination, "the resul ts 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 p rojects-- 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 pro posal.

II.

A.

This is an unusual petition requesting extraordinar y relief. First, we must set forth our jurisdictional posture to consider such a petition. We find that under the OS H Act, this Court is vested with jurisdiction to conduct j udicial review over health and safety standards issued by t he 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), prov ides:

Any person who may be adversely affected by a standard issued under this section may at an y time prior to the sixtieth day after such standar d is promulgated file a petition challenging the validity of
such standard with the United States court o f 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 Secreta ry. Nevertheless, courts have interpreted the OSH Act's grant

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

enabling judicial review not only of standards alre ady promulgated, but also of "agency action unlawfully withheld or unreasonably delayed". See Action on Smoking & H ealth v. Department of Labor, 28 F.3d 162, 163-164 (D.C. Cir. 1994) (OSH Act S 655(f) and APA "respectively confe r jurisdiction on this court . . . over suits seeking relief from agency inaction or delay that jeopardizes our futur e statutory power of review."); Public Citizen's Heal th Research Group v. Brock, 823 F.2d 626, 629 (D.C. Ci r. 1987) (reviewing OSHA's delay in rulemaking). In fa ct, where administrative enabling statutes such as the OSH Act grant exclusive jurisdiction to a particular co urt to review past actions of an agency, that court necess arily has the exclusive jurisdiction to review inaction, as w ell. See Telecommunications Research & Action Ctr. v. FCC, 7 50 F.2d 70, 75 (D.C. Cir. 1984).

Next, because this Court has been vested with exclu sive jurisdiction over OSHA standards, the APA determine s the scope of our review when standards have not yet bee n promulgated: "To the extent necessary," we shall "c ompel agency action unlawfully withheld or unreasonably delayed". 5 U.S.C. S 706(1); see also Williams v. N ational 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 t he Administrative Procedure Act (`APA') which specific ally 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 rulemaki ng 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 disc harge all of its statutory responsibilities under a reasonabl e timetable. See Environmental Defense Fund v. United States Nuclear Regulatory Comm'n, 902 F.2d 785, 789-790 (1 0th Cir. 1990); Cutler v. Hayes, 818 F.2d 879, 896 (D.C . Cir. 1987). With this balance in mind, unreasonable dela y should be measured by the following factors:

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

has elapsed since the agency came under a du ty to act. Second, the reasonableness of the delay shou ld be judged in the context of the statute authori zing the agency's action. Third, the court should ass ess the consequences of the agency's delay. Fourth, the court should consider "any plea of administrative error, administrative inconvenience, practical diff iculty 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 afford ing the agency "considerable deference in establishing a ti metable for completing its proceedings." Cutler, 818 F.2d a t 896.

Distilled to its essence, this petition by Oil, Che mical and Public Citizen would have us intrude into the quint essential discretion of the Secretary of Labor to allocate OS HA's resources and set its priorities. It is certainly t rue that "[d]elays that might be altogether reasonable in th e sphere of economic regulation are less tolerable when huma n 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 a dversely affect human health to a degree which necessitates a priority response. The Petitioners allege that betw een 88 and 342 out of every 1,000 workers exposed to hexav alent
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 assump tions underlying the Petitioners' calculations. For examp le, Intervenor Color Pigments Manufacturers Association , Inc. argues that the Petitioners are wrong to assume tha t all workers in industries dealing with chromium in some way or another are exposed to 100 ug/m3 hexavalent chro mium, every working day for 45 years. Color Pigments asse rts that

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

OSHA's lead PEL standard, 29 C.F.R. S 1910.1025(c), reduces all workers' lead exposure, which in turn r educes chromium exposure by one-half for workers in the pi gment industry; 2) pigment workers often breathe through respirators which protect them from exposure to lea d and chromium and 3) the Petitioners' calculations fail to distinguish between lead chromate, a chromium compo und with levels of bioavailability and toxicity that ha ve 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 inconclus ivity of hexavalent chromium's role in causing cancer becaus e 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 Co urt is not in a position to tell the Secretary how to do her j ob.

"OSHA not only possesses enormous technical experti se we lack, but must juggle competing rulemaking deman ds 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 hexavale nt chromium. This is not a subject matter to which the agency has never given a thought, but is rather already re gulated in the workplace by the agency's current standards. Moreover, OSHA has amassed a wealth of data reanaly zing
the health risks of hexavalent chromium and is curr ently in the process of collecting information about the fea sibility of any proposed alterations to the standards now in pl ace. Although 5 U.S.C. S 706(1) directs reviewing courts to "compel agency action unlawfully withheld or unreas onably delayed," we are satisfied that the facts alleged h ere do not demonstrate inaction that is either contrary to a s pecific Congressional mandate, in violation of a specific c ourt order or unduly transgressive of the agency's own t entative
deadlines. Cf. United Steelworkers of America v. Pendergrass, 819 F.2d 1263, 1270 (3d Cir. 1987) (en forcing prior judgment); United Steelworkers of America v. Auchter, 763 F.2d 728, 739 (3d Cir. 1985) (ordering reformul ation of

8standard to comply with statutory directive). We th erefore

conclude that, on the record accompanying this peti tion, OSHA has not "unlawfully withheld or unreasonably delayed" the responsibility of rulemaking.

III.

Having concluded that the facts and the law present ed before us do not establish a necessity for us to in tervene in the Secretary's discretion to conduct the affairs o f OSHA in this matter, it is clear that we do not have the au thority to grant relief under the All Writs Act, 28 U.S.C.S 16 51(a). "In order to secure a writ of mandamus, petitioner must establish that the government officer in question h as 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 th e basis of the allegations contained in the petition and th e responses to them, we cannot grant relief under the concept of mandamus. Howsoever other courts of appe als may construe this writ, the tradition of this Court and its ruling case law severely limit the grant of mandamu s relief.
A writ is not available here.

* * * * * * *

We have considered all arguments advanced by the parties and have concluded that no further discussi on 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

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