Public Citizen Health Research Group v. Chao
2002 WL 31869425, 314 F.3d 143 (2002)
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Rule of Law:
An administrative agency's delay in rulemaking, even when supported by justifications of scientific uncertainty or competing priorities, becomes unreasonable and subject to judicial compulsion when the delay is extreme, the agency has acknowledged a grave public health risk, and it has repeatedly failed to meet its own deadlines.
Facts:
- Hexavalent chromium, a compound widely used in industries like chrome plating and welding, has long been recognized as a human carcinogen.
- In 1971, the Occupational Safety and Health Administration (OSHA) established a permissible exposure limit (PEL) for hexavalent chromium based on 1920s data that did not consider its carcinogenic effects.
- The National Institute for Occupational Safety and Health (NIOSH) has for decades recommended that OSHA adopt a much more stringent PEL for the substance.
- In 1993, Public Citizen Health Research Group petitioned OSHA to issue a stricter emergency standard for hexavalent chromium.
- In response, OSHA denied the emergency standard but acknowledged that the existing PEL was inadequate, stating there was 'clear evidence' of excess lung cancer risk at the current level.
- OSHA announced in 1993 that it was beginning a formal rulemaking process and anticipated publishing a proposed rule no later than March 1995.
- A comprehensive risk assessment, the 'Crump Report,' concluded that exposure at the current PEL could result in between 88 and 342 excess cancer deaths per thousand workers.
- In August 2000, the 'Johns Hopkins study' was released, which controlled for factors like smoking and asbestos exposure, and confirmed the elevated lung cancer risk from hexavalent chromium.
Procedural Posture:
- In 1993, Public Citizen Health Research Group petitioned the Occupational Safety and Health Administration (OSHA) to issue a new standard for hexavalent chromium.
- OSHA denied the petition for an emergency standard but announced it would commence a normal rulemaking process.
- In 1997, after years of agency delay, Public Citizen filed a petition for review in the U.S. Court of Appeals for the Third Circuit, alleging unreasonable delay.
- In Oil, Chemical & Atomic Workers Union v. OSHA (1998), the Third Circuit (intermediate appellate court) denied Public Citizen's petition, finding the delay was not yet unreasonable.
- After OSHA missed its subsequent deadlines and reclassified the rulemaking as a 'long-term action,' Public Citizen filed the present petition for review in the U.S. Court of Appeals for the Third Circuit.
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Issue:
Does the Occupational Safety and Health Administration's (OSHA) nine-year delay in promulgating a new, lower permissible exposure limit for hexavalent chromium constitute unreasonable delay compelling judicial intervention under the Administrative Procedure Act?
Opinions:
Majority - Becker, Chief Judge.
Yes. OSHA's nine-year delay in promulgating a new rule for hexavalent chromium is unreasonable and warrants judicial intervention. The court reasoned that the delay was objectively extreme, as OSHA had missed all ten of its self-imposed deadlines and was now further from a rule than it was five years prior. Scientific uncertainty is not a valid justification, as the Occupational Safety and Health Act requires regulation based on the 'best available evidence,' not scientific certainty; moreover, OSHA failed to act for over two years after the release of the key Johns Hopkins study it claimed to be awaiting. Finally, while competing agency priorities, such as the ergonomics standard or post-9/11 responses, might explain slow progress, they cannot justify indefinite delay and 'bureaucratic recalcitrance' in the face of an admittedly grave risk to public health.
Analysis:
This decision reinforces the judiciary's oversight role under the Administrative Procedure Act's 'unreasonable delay' provision, establishing a clear limit on agency deference. It signals that courts will intervene when an agency's prolonged inaction on a recognized, serious health risk becomes indefensible, despite claims of competing priorities or scientific complexity. The case sets a precedent that an agency's own admissions of risk and its history of missed deadlines can be used to overcome traditional deference, empowering public interest groups to hold agencies accountable for failing to execute their statutory mandates to protect public health.
