Opinion Per Curiam.
In this expedited appeal, Assistant Secretary of Labor Thorne G. Auchter
The current OSHA standard for EtO has been in effect for well over a decade; it allows a permissible exposure limit in the workplace of 50 parts per million (ppm) averaged over an eight hour workday ("time-weighted average" or TWA). 29 C.F.R. § 1910.1000.
In August 1981, Public Citizen Health Research Group ("Public Citizen")
Four months later, in January 1982, OSHA published an "Advance Notice of Proposed Rulemaking." 47 Fed.Reg. 3566 (Jan. 26, 1982); App. 170-75.
Shortly before OSHA denied its petition, Public Citizen commenced this civil action to obtain an order commanding the issuance of an emergency standard. On cross-motions for summary judgment, the district court concluded that "[t]he record before the agency presented a solid and certain foundation showing that workers are subjected to grave health dangers from exposure to ethylene oxide within the currently permissible range." App. 141. OSHA had abused its discretion, the district court held, by denying the Public Citizen petition and, instead, proceeding on a course "which insured the continuing existence of the challenged standard." Id. Accordingly, the district court ordered OSHA to "promulgate within 20 days ... an appropriate emergency temporary standard addressing worker exposure to ethylene oxide." App. 146.
This difficult case, which we must decide under pressing circumstances, has two novel aspects. First, OSHA has in the past, on its own initiative, issued emergency standards which were promptly brought to court for review by industry complainants. See Florida Peach Growers Association, Inc. v. United States Department of Labor, 489 F.2d 120 (5th Cir.1974); Dry Color Manufacturers' Association, Inc. v. United States Department of Labor, 486 F.2d 98 (3d Cir.1973) (both vacating emergency temporary standards). We are unaware, as was the district court, App. 134, of any prior case in which a court was invited to review OSHA's denial of a petition to issue an emergency standard. Second, in declining to replace the current standard on an emergency basis, and in justifying its position in court, OSHA did not rely on any government action. Rather, it relied heavily on voluntary efforts of employers, "alerted and responsive to the new health data concerning [EtO]," to "lower their in-house allowable exposure limits to a fraction of the OSHA standard." OSHA Brief at 22, 23.
The Assistant Secretary has emphasized the extraordinary authority and large measure of discretion 29 U.S.C. § 655(c) vests in him to determine whether an "emergency standard is necessary to protect employees from [grave] danger." While it is a close question, our review of the record indicates that, in ordering an emergency standard, the most drastic measure in the Agency's standard-setting arsenal, the district court impermissibly substituted its evaluation for that of OSHA. Nonetheless, we fully agree with the district court that "OSHA has embarked upon the least responsive course short of inaction." App. 135. Beyond question, despite the efforts of "[m]any companies," OSHA Brief at 23, the record shows a significant risk that some workers, and the children they will hereafter conceive, are subject to grave danger from the employees' exposure to EtO. We therefore hold that OSHA must expedite the rulemaking in which it is now engaged.
Congress has instructed OSHA, in determining the priority for establishing standards, to "give due regard to the urgency of the need for mandatory ... health standards for particular ... workplaces." 29 U.S.C. § 655(g).
To assure that OSHA will give due regard to the need, urgent for some workers, for a new EtO standard, and to prevent undue protraction in OSHA's conclusion of this matter, we direct the Assistant Secretary to issue a notice of proposed rulemaking within thirty days of the date of this decision and to proceed expeditiously thereafter toward issuance of a permanent standard for EtO.
It is undisputed that evidence now available shows EtO to pose serious qualitative health risks unappreciated when OSHA adopted the current standard. The chemical is both mutagenic and carcinogenic in animals and humans. One uncontradicted study finds significant chromosomal aberrations in workers chemically exposed to 36 ppm, App. 996-1003; another study shows similar results for concentrations described, more generally, as within the current 50 ppm standard. App. 1488-99. In addition, dose responsive relationships between exposure to EtO and fertility in rats have been observed. 47 Fed.Reg. 3568 (Jan. 26, 1982); App. 172.
OSHA concedes that scientific reports show a "statistically significant" increase in cancer in animals exposed at 33 ppm and above.
The two principal human studies reported a "significant excess" of both leukemia and stomach cancer from exposure to EtO, OSHA Brief at 15; see also 47 Fed.Reg. 3568; App. 172; the same cancers appeared in animals exposed to EtO.
Evaluating this evidence, the Assistant Secretary acknowledged that "there is important new health data on the carcinogenic risks of EtO," but determined that at current levels of exposure EtO did not present a danger sufficiently grave to require issuance of an ETS. App. 5a. The Agency initially stated:
App. 5b. During litigation, OSHA slightly qualified or clarified this assessment and estimated the "average" hospital exposure level at (neither above nor below) 10 ppm.
Public Citizen disputes OSHA's findings as unsupported by the record. Further, Public Citizen asserts that even if the "average" exposure level is indeed 10 ppm and even if the risk of harm at that level is not "grave," the record still shows many workers exposed to levels over 10 ppm, yet below the current standard of 50 ppm, levels at which the risk of harm is grave.
A. Standard of Review
The legislative history of 29 U.S.C. § 655(c)
In deciding whether to issue an ETS, OSHA must make both factual and policy judgments on the basis of information that may be incomplete. The Supreme Court, in the context of permanent regulation, has
1. OSHA's finding of no "grave danger" is rational.
The district court, after reviewing the available evidence, concluded that "the agency's decision resulted from a clear error of judgment." App. 135. Responding to OSHA's position that there was no emergency because private institutions had voluntarily reduced EtO exposure to levels OSHA considered "safe," the district court declared "[s]uch actions do nothing to protect those workers who are still exposed to EtO at hazardous levels or those employed at institutions which may at any time elect to withdraw the voluntary restrictions." App. 137 (emphasis added). The district court thus cited actual exposure risks and not, as OSHA would restate the court's position,
In light of the mixed fact/policy judgment Congress empowered OSHA to make on uncertain evidence, we cannot say, as the district court did, that the decision not to issue an ETS lacked support in the record.
The difficult question in this case is whether the Assistant Secretary's reliance on an average exposure level in finding no grave danger was irrational or an abuse of discretion.
All we say today is that in the absence of a more complete record as to actual exposure levels, we are hesitant to compel the Assistant Secretary to grant extraordinary relief. We express no opinion as to whether the same record would support voluntary issuance by OSHA of an emergency standard.
2. The significant risk of grave danger necessitates expedited rulemaking.
Though we disagree with the district court that a finding of grave danger is compelled on this record such that the Assistant Secretary should be required to exercise his "extraordinary power" to direct immediate relief in the form of an ETS, our review would be less than "thorough" and "probing"
In its September 1981 denial of Public Citizen's petition for an ETS, OSHA conceded that its current 50 ppm standard "may not be sufficiently protective," and stated its "intent to proceed with rulemaking under § 6(b) of the OSH Act [29 U.S.C. § 655(b)] to lower the permissible exposure limit and to incorporate appropriate provisions for monitoring, medical surveillance and the like." App. 5b. The Assistant Secretary encouraged Public Citizen "to provide information in response to OSHA's advance notice of proposed rulemaking, and to participate in the full rulemaking proceedings on EtO." Id. Despite this announced intent in September 1981 to proceed with a rulemaking, no notice of proposed rulemaking has yet been issued.
Instead, the Assistant Secretary issued in January 1982, four months after committing OSHA to a rulemaking, merely an "Advance Notice of Proposed Rulemaking". See 47 Fed.Reg. 3566 (Jan. 26, 1982); App. 170-75.
Three years from announced intent to regulate to final rule is simply too long given the significant risk of grave danger EtO poses to the lives of current workers and the lives and well-being of their offspring. Delays that might be altogether reasonable in the sphere of economic regulation are less tolerable when human lives are at stake. See, e.g., Blankenship v. Secretary of Health, Education, and Welfare, 587 F.2d 329, 334 (6th Cir.1978); Environmental Defense Fund, Inc. v. Hardin, 428 F.2d 1093, 1099 (D.C.Cir.1970).
We would hesitate to require the Assistant Secretary to expedite the EtO rulemaking if such a command would seriously disrupt other rulemakings of higher or competing priority. But we do not confront such a case. Prior to oral argument, we asked the parties to address the status of other ongoing OSHA rulemakings and the feasibility of expediting the EtO proceedings in the absence of an ETS. OSHA informed us that the Agency is currently engaged in three proceedings that it believes would be disturbed by speedier EtO rulemaking: (1) rulemaking requiring chemical manufacturers to assess and communicate to employees the hazards posed by chemicals they produce; (2) a reassessment of the current regulations governing worker exposure to asbestos; and (3) rulemaking governing exposure to ethylene dibromide.
The hazard communication rulemaking has been on the Agency's docket since 1977, see 42 Fed.Reg. 5372 (Jan. 28, 1977); by OSHA's own admission, development of the standard is nearly complete with a final rule expected by July 1983. 47 Fed.Reg. 48549 (Oct. 28, 1982). In addition to the fact that OSHA's work on the rule is substantially done, we note that this standard relates solely to information employers must give to workers concerning workplace hazards; it does not substantively regulate the workplace environment. The asbestos docket has been open since 1975, and OSHA estimates a Notice of Proposed Rulemaking may be issued in March 1984.
The court is not disarmed in these circumstances. OSHA is obliged by its governing Act to "give due regard to the urgency of the need"
We cannot "compel solutions where none exist," American Broadcasting Co. v. FCC, 191 F.2d 492, 501 (D.C.Cir.1951), but we "must act to make certain that what can be done is done." Id. To that end, we order
In determining the priority for establishing standards under this section, the Secretary shall give due regard to the urgency of the need for mandatory safety and health standards for particular industries, trades, crafts, occupations, businesses, workplaces or work environments. The Secretary shall also give due regard to the recommendations of the Secretary of Health, Education, and Welfare regarding the need for mandatory standards in determining the priority for establishing such standards.