Public Citizens Health Research Group v. Chao

314 F.3d 143 (3rd. Cir. 2002)

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Nature of the Case

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Facts

Hexavalent chromium is used 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. There is strong evidence that inhaled hexavalent chromium is carcinogenic. The Department of Health and Human Service's National Toxicology Program has designated various hexavalent chromium compounds as human carcinogens. The EPA agrees. The primary evidence of carcinogenicity comes from epidemiological studies of workers exposed to it. D established a 100 g/m3 permissible exposure limit for inhalation exposure. That 1971 standard remains in effect. NIOSH, the agency responsible for conducting research and making recommendations to D for the prevention of occupational disease and injury, urged D to adopt a PEL of 1.9 g/m3, a level 1/52 of the existing standard. NIOSH concluded that all forms of hexavalent chromium should be considered carcinogenic, and it recommended that the 1.9 g/m3 standard be applied to all such compounds. In 1993, P petitioned DA to issue an emergency temporary standard that would set a PEL of 0.5 g/m3 as an 8-hour weighted average. D denied the petition because it contended that 'the extremely stringent judicial and statutory criteria for issuing' an emergency standard were not met. D did agree that its current standard was inappropriate. D announced that it was beginning a Section 6(b) rulemaking for occupational exposure to CrVI. But the dates of a proposed standard kept slipping. D also commissioned a comprehensive risk assessment of hexavalent chromium. The Crump Report concluded that significant numbers of excess cancer deaths could be expected even at much lower levels of exposure. For example, exposure at 2 g/m3 could be expected to result in between 1.8 and 8.9 excess cancer deaths per thousand workers, while exposure at 1 g/m3 would yield 0.9 to 4.4 excess cancer deaths per thousand workers. D stated that it was considering a new standard 10 to 100 times lower than the existing one. In August 1997, D explained to P that work on the rule was continuing, but that these considerations had delayed progress and prevented it from expediting the rulemaking. P filed a petition in this Court for review of D's allegedly unreasonable delay. The court declined P's request to compel agency action, for we concluded that the facts did not yet 'demonstrate that inaction is . . . unduly transgressive of the agency's own tentative deadlines.' The Secretary of Labor has 'quintessential discretion . . . to allocate OSHA's resources and set its priorities.' D kept pushing the date back for a proposed rule. D offers a number of explanations for the delay that has now become indefinite. D claims that it 'believes that the information now available is inconclusive on important issues, such as whether the epidemiological studies . . . apply to all Cr VI compounds and the utility of the data to establish a dose-response relationship.' D then published a request for information (RFI) in its August 2002 regulatory agenda. After the time for response, OSHA states, it will evaluate all of the information available and decide how to proceed. P brought the present petition for review alleging that 'deference to an agency's priorities and timetables only goes so far,' and arguing that, 'at some point, a court must tell an agency that enough is enough.' The Administrative Procedure Act, 5 U.S.C. § 706(1), creates a right of action by an aggrieved party to compel unreasonably delayed agency action. When the action sought is the promulgation of an occupational exposure standard under 29 U.S.C. § 655, the federal courts of appeals have exclusive jurisdiction under 29 U.S.C. § 655(f), which we have interpreted to provide 'jurisdiction to conduct judicial review over the 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.'