                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-22-2004

Intl Union v. Secretary of Labor
Precedential or Non-Precedential: Precedential

Docket No. 03-4146




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                       PRECEDENTIAL

  UNITED STATES COURT OF                          (Opinion Filed: March 22, 2004)
         APPEALS
   FOR THE THIRD CIRCUIT

                                              Randy S. Rabinowitz, Esq. (Argued)
             No. 03-4146                      5512 Carolina Place, N.W.
                                              Washington, DC 20016
                                                     -AND-
INTERNATIONAL UNION, UNITED                   Daniel Sherrick, Esq.
  AUTOMOBILE, AEROSPACE &                     Catherine Traffton, Esq.
  AGRICULTURAL IMPLEMENT                      International Union, UAW
 WORKERS OF AMERICA, UAW;                     8000 East Jefferson
  UNITED STEELWORKERS OF                      Detroit, Michigan 48214
          AMERICA,                                   -AND-
                   Petitioners                Paul Whitehead, Esq.
                                              David Goldman, Esq.
                  v.                          United Steelworkers of America
                                              5 Gateway Center
 ELAINE CHAO, SECRETARY OF                    Pittsburgh, PA 15222
LABOR; OCCUPATIONAL SAFETY
AND HEALTH ADMINISTRATION,                    Attorneys for Petitioners
                  Respondents

                                              Howard M. Radzely, Esq.
 PETITION FOR REVIEW OF AN                    Solicitor of Labor
        ORDER OF THE                          Joseph M. Woodward, Esq.
    SECRETARY OF LABOR                        Associate Solicitor for Occupational
                                              Safety and Health

        Argued: January 9, 2004


  Before: BARRY, SMITH, Circuit
Judges, and POLLAK,* District Judge
                                                     *
                                                      (...continued)
                                              District Judge, United States District
    *
        The Honorable Louis H. Pollak,        Court for the Eastern District of
                         (continued...)       Pennsylvania, sitting by designation.

                                          1
Ann Rosenthal, Esq. (Argued)                    the Occupational Safety and Health
Bruce Justh, Esq.                               Administration (“OSHA”) to take
Charles F. James, Esq.                          “immediate action to protect workers from
Joanna Hull, Esq.                               the health effects of occupational exposure
United States Department of Labor               to machining fluids[.]” UAW urged
Office of the Solicitor                         OSHA to promulgate a rule that would
200 Constitution Avenue, N.W.                   establish a standard for occupational
Washington, DC 20210                            exposure to machining, or metalworking,
                                                fluids (“MWFs”). OSHA did not formally
Attorneys for Respondents                       respond to UAW’s petition for rulemaking
                                                until more than a decade later when, by
Douglas R. Cox, Esq.                            letter dated December 16, 2003, John
Gibson, Dunn & Crutcher                         Henshaw, Assistant Secretary of Labor for
1050 Connecticut Avenue, N.W.                   Occupational Safety and Health, denied
9 th Floor                                      UAW’s petition.
Washington, D.C. 20036
                                                        The December 16th response was
Attorney for Amicus Chamber of                  submitted together with a brief to this
Commerce US and Natl Assn Mfg                   Court, for on October 21, 2003,
                                                understandably impatient with the delay,
Jeffrey L. Leiter, Esq.                         UAW, now joined by the United
6718 Whittier Avenue                            Steelworkers of America, petitioned this
Suite 200                                       Court, pursuant to section 6(f) of the
McLean, VA 22101                                Occupational Safety & Health Act of
                                                1970, 29 U.S.C. § 655(f) (OSH Act), to
Attorney for Amicus Precision                   review what they described as the
Precision Machine, National Tooling             “unreasonable delay” of respondents
and Ind Lubricant Mfg                           OSHA and the Secretary of Labor in
                                                issuing the requested standard under
                                                section 6(b)(5) of the OSH Act. The
      OPINION OF THE COURT                      Administrative Procedure Act (“APA”),
                                                together with the OSH Act, permit a
                                                petition to the federal courts of appeals to
                                                review federal agency action (or inaction).
BARRY, Circuit Judge                            5 U.S.C. § 706; 29 U.S.C. § 655(f). We,
                                                thus, have jurisdiction over the petition
       On December 9, 1993, the                 before us which the parties, and the Court,
International Union of United Automobile,       agree is appropriately recharacterized as a
Aerospace & Agricultural Implement              petition to review final agency action. See
Workers of America (“UAW”) petitioned           In re International Chemical Workers

                                            2
Union, 830 F.2d 369, 370 (D.C. Cir. 1987)           dermatitis (again, the debate is over the
(when a petition to compel rulemaking was           severity and prevalence), the evidence
pending and the agency denie d                      supporting a connection to cancer is
rulemaking, it was appropriate to treat the         equivocal.
pending petition as a petition for review of
the denial).                                                  Initially, OSHA responded in
                                                    December 1995, albeit informally, to
        For the reasons that follow, we find        UAW’s 1993 petition when it designated
that the Secretary’s denial of the request          MWFs as a regulatory priority. In 1997,
for rulemaking proceedings on MWFs was              OSHA empaneled a Metalworking Fluids
neither arbitrary nor capricious. We,               Standards Advisory Com mitte e
therefore, will deny the petition for review.       (“MWFSAC” or “Committee”).                The
                                                    Committee of 15 members had five labor
             I. Background                          r e p r e se n tatives, f i v e in d u str y
                                                    repres enta t i v e s , a n d f i v e p u b lic
       Metalworking fluids are used in a            representatives. On July 15, 1999, the
wide variety of industries as coolants and          Committee issued its final report and
lubricants for metal machining, grinding,           recommendations.
cutting, forming, tooling, and treating in
manufacturing operations. Approximately                     The Committee unanimously
1.2 million workers (including, among               recommended that OSHA take action to
others, machinists, mechanics, and                  limit worker exposure to MWFs. The
metalworkers), who are employed at                  recommendation was based upon the
approximately 185,000 establishments, are           “demonstrated health effects” of exposure
exposed to MWFs by means of skin                    to MWFs: dermatitis, asthma, HP, and
contact or by breathing or otherwise                other respiratory disorders.          The
ingesting particles from mists or aerosols.         Committee members, however, did not
                                                    agree on the best way to limit worker
       There is little doubt, and it is not         exposure to MWFs. A majority of the
disputed here, that exposure to MWFs can            Committee recommended that OSHA
have debilitating health effects. The               promulgate a rule, while a minority
nature and prevalence of health effects             thought that non-mandatory guidelines and
from MWF exposure is, however, hotly                educational programs would better address
disputed.       Asthma, hypersensitivity            the problem. A majority of the Committee
pneumonitis (“HP”), other respiratory               also concluded that exposure to old
diseases, and cancer are among the effects          formulations of MWFs caused skin cancer
or potential effects that UAW claims result         and cancer at other sites. Only a minority
from MWF exposure. While there is little            of the Committee, however, concluded that
debate about the link between MWF                   there was adequate evidence to link
exposure and respiratory disorders and              exposure of current formulations of MWFs

                                                3
to skin cancer or cancer at other sites. In       concluded, and we summarize broadly,
sum, the Committee unanimously                    that regulating MWFs was not appropriate
recognized a link between MW F exposure           because the science regarding MWF
and non -malig nant illnesses (i.e.,              exposure neither adequately illuminated an
dermatitis, respiratory disorders, HP, and        effective way to determine an appropriate
asthma) and, based upon this recognition,         permissible exposure limit, nor supported
a majority recommended promulgation of            the conclusion that MWF exposure causes
a rule. The Committee’s recommended               cancer. Second, OSHA identified three
course of action was not premised on a            agency priorities to regulate “toxic
connection between MWFs and cancer.               substances that pose more serious health
                                                  risks than do MWFs,” and asserted that
        Beginning in 1999, and seemingly          agency resources could not accommodate
in response to the Committee’s                    the “enormous resource commitment” that
recommendation, OSHA began to include             a rulemaking on M WFs would require.
MWFs in its published Regulatory                  OSHA found, however, that various non-
Agenda. MWFs were identified as a                 regulatory measures will enable exposures
“Long Term Action” item, meaning that             to MWF hazards to be controlled
the issuance of a standard was anticipated        effectively, and that those measures were
in a year’s time. By 2001, however, no            in large part already underway.
standard had been issued, and OSHA
removed MW Fs from its Regulatory                              II. Discussion
Agenda, publishing, instead, a MWF Best
Practices Guide. The Guide is non-                       In considering the petition for
binding and unenforceable.                        review, we (1) examine the relevant
                                                  statutory framework, (2) assess whether
        In October 2003, UAW filed the            OSHA had a statutory duty to regulate
petition for review now before us,                MW Fs, and (3) evaluate whether OSHA’s
asserting that the Secretary of Labor and         refusal to regulate MW Fs was arbitrary
OSHA had failed, by virtue of an                  and capricious.
unreasonable delay, to act, as required by
29 U.S.C. § 655(b)(5), “to assure that no         A.    Statutory Background
employee suffer material impairment of
health[.]”     In the Henshaw letter of                  There are two statutes relevant to
December 16, 2003, which accompanied              our review: the Occupational Safety and
its brief to this Court, OSHA formally –          Health Act and the Administrative
and finally – denied UAW’s 1993 petition          Procedure Act.
requesting action. In the letter, OSHA
gave two main reasons for deciding not to               (1)    The OSH Act
promulgate a rule for MWFs “now or in
the foreseeable future.” First, OSHA                    Congress enacted the OSH Act, “to

                                              4
assure so far as possible every working              of the Secretary of Health, Education, and
man and woman in the Nation safe and                 Welfare[.]” Id.
healthful working conditions[.]”           29
U.S.C. § 651(b). “The Act authorizes the                     Finally, under the Act, the Secretary
Secretary of Labor to establish, after notice        may appoint an advisory committee to
and opportunity to comment, mandatory                assist in the development of a rule. 29
nationwide standards governing health and            U.S.C. § 655(b)(1). “Where an advisory
safety in the workplace.”          American          committee is appointed and the Secretary
Textile Mfrs. Institute, Inc. v. Donovan,            determines that a rule should be issued, he
452 U.S. 490, 493 (1981) (citing 29 U.S.C.           shall publish the proposed rule within sixty
§§ 655(a), (b)). When the Secretary                  days after the submission of the advisory
decides to promulgate a rule “dealing with           committee’s recommendations[.]” Id. at §
toxic substances or harmful physical                 655(b)(2).
agents,” the rule must “adequately
assure[], to the extent feasible, on the basis              (2)     The APA
of the best available evidence, that no
employee will suffer material impairment                    The Administrative Procedure Act
of health or functional capacity” even after         directs an agency “to conclude [within a
a lifetime of exposure. 29 U.S.C. §§                 reasonable time] a matter presented to it.”
655(b)(5). The agency’s priorities are               5 U.S.C. § 555(b). It also empowers
judicially reviewable.       Public Citizen          reviewing courts to compel agency action
Health Research Group v. Chao, 314 F.3d              “unlawfully withheld or unreasonably
143, 152 (3d Cir. 2002). A reviewing                 delayed[.]” Id. at § 706(1). Reviewing
court is instructed, however, that                   courts are to “hold unlawful and set aside
“determinations of the Secretary shall be            agency action, findings, and conclusions
conclusive if supported by substantial               found to be . . . arbitrary, capricious, an
evidence in the record considered as a               abuse of discretion, or otherwise not in
whole.” 29 U.S.C. § 655(f). And while                accordance with law[.]” Id. at § 706(2);
the Secretary is accorded a broad measure            Borough of Columbia v. Surface Transp.
of discretion in setting the agency agenda,          Bd., 342 F.3d 222, 229 (3d Cir. 2003).
the Secretary does not have absolute
discretion. “In determining the priority for         B.     Does OSHA Have a Duty to
establishing standards . . . the Secretary                  Regulate MWFs?
shall give due regard to the urgency of the
need for mandatory safety and health                       UAW contends that the “OSH Act
standards for particular industries, trades,         demands either that the Secretary publish
crafts, occupations, businesses, workplaces          a proposed rule within 60 days after
or work environments.” Id. at § 655(g).              receiving an advis ory com mitte e
The Act also requires that the Secretary             recom mendation that reg ulation is
“give due regard to the recommendations              warranted or decide no rule should be

                                                 5
issued.” Petitioners’ Br. at 21 (citing 29         area.
U.S.C. § 655(b)(2)). Because a majority
of the MW FAC recommended                                   Second, the language and structure
promulgation of a rule in July 1999,               of § 655, taken as a whole, confirm, rather
certainly more than 60 days prior to the           than restrict, the discretion of the Secretary
denial of rulemaking in December 2003,             to set the regulatory agenda under the OSH
UAW urges us to require the Secretary to           Act. See id. at § 655(g). The Secretary, by
promulgate a rule to regulate MW Fs.               appointing an advisory committee, is not
Whether and when there is a duty to act            thereby stripped of discretion over whether
under the OSH Act is a question of law.            or not to promulgate a rule or bound to the
Review is de novo. Chao v. Rothermel,              time constraints of § 655. The D.C.
327 F.3d 223, 225 (3d Cir. 2003).                  Circuit has addressed this issue on a
                                                   number of occasions, and has each time
       UAW points to 29 U.S.C. §                   convincingly confirmed that in § 655, the
655(b)(2), which states that “[w]here an           “statutory deadlines do not ‘circumscribe
advisory committee is appointed and the            the discretion of the’ Administration; that
Secretary determines that a rule should be         its ‘failure to act within their limits’ is not,
issued, [s]he shall publish the proposed           in itself, an abuse of discretion; and that
rule within sixty days after the submission        the agency may rationally ‘delay
of the adviso ry comm ittee’s                      development of a standard at any stage as
recommendations[.]”         29 U.S.C. §            priorities demand.’” Action on Smoking &
655(b)(2). UAW contends that the sixty             Health v. Dep’t of Labor, 100 F.3d 991,
day requirement is mandatory.           We         993 (D.C. Cir. 1996) (quoting National
disagree.                                          Congress of Hispanic Am. Citizens v.
                                                   Marshall, 626 F.2d 882, 888 (D.C. Cir.
        First, the very language to which          1979) and citing National Congress of
UAW points acknowledges the discretion             Hispanic Am. Citizens v. Usery, 554 F.2d
of the Secretary to pursue regulatory action       1196, 1199-1200 (D.C. Cir. 1977) (“El
if she, in the exercise of that discretion,        Congreso”). See El Congreso, 554 F.2d at
“determines that a rule should be issued.”         1198-1200 (discussing § 655(b) and its
Id. There is nothing in the statute that           legislative history and finding an “implicit
requires the Secretary to cede discretionary       acknowledgment that traditional agency
authority to the advisory committee. The           discretion to alter priorities and defer
statute is silent as to the duties of the          action due to legitimate statutory
Secretary in the event, as here, that she          considerations was preserved”).
determines a rule should not be
promulgated, or if she is uncertain as to                 Finally, looking beyond the specific
whether a rule should be promulgated.              provision that UAW misreads as creating
There is no reason to construe the statute         a duty to regulate to the larger mandate of
to limit the Secretary’s discretion in this        the OSH Act itself, it is obvious that

                                               6
OSHA cannot lightly be required to initiate        action is challenged as unreasonably
a rulemaking: “There are likely thousands          delayed or unlawfully withheld, agencies
of substances that may pose a significant          are scrutinized at the most deferential end
risk of harm to workers. OSHA could not            of the arbitrary and capricious spectrum.
possibly be required to undertake                  See, e.g., American Horse Protection
r u l e m a k in g o n all o f t h em              Ass’n, Inc., 812 F.2d at 4-5 (“Review
simultaneously.” Respondents’ Br. at 36-           under the ‘arbitrary and capricious’ tag
37. See also South Hills Health System v.          line . . . encompasses a range of levels of
Bowen, 864 F.2d 1084, 1094 (3d Cir.                deference to the agency, . . . [and] an
1988) (“Normally . . . an agency may               agency’s refusal to institute rulemaking
exercise ‘a generous measure of discretion         proceedings is at the high end of the
respecting the launching of rulemaking             range[.]”) (citations omitted).
proceedings.’”) (quoting Geller v. FCC,
610 F.2d 973, 979 (D.C. Cir. 1979)).                      As we have recently noted,
                                                   decisions “‘that might be altogether
       Of course, once OSHA undertakes             reasonable in the sphere of economic
to promulgate a standard, it must reduce           regulation are less tolerable when human
risk to the extent feasible, 29 U.S.C. §           lives are at stake.’” Public Citizen v.
655(b)(5), and its actions must be                 Chao, 314 F.3d at 153 (quoting Public
supported by substantial evidence. Id. at §        Citizen Health Research Group v. Auchter,
655(f). Here, however, OSHA never                  702 F.2d 1150, 1154 (D.C. Cir. 1983)).1
decided to regulate MWFs, much less
formally initiated rulemaking proceedings
with the publication of a proposed rule.                  1
                                                            The “human lives . . . at stake”
                                                   played a critical role in Public Citizen.
C.     Was OSHA’s Action Arbitrary
                                                   A risk assessment of hexavalent
       and Capricious?
                                                   chromium had concluded that exposure
                                                   at the level then current over a 45 year
       We agree with the parties that
                                                   working lifetime could be expected to
OSHA’s decision not to regulate MWFs
                                                   result in between 88 and 342 excess
should be upheld absent a determination
                                                   cancer deaths per thousand workers. 314
that the decision was “arbitrary” or
                                                   F.3d at 147. In recognition of this
“capricious.” 5 U.S.C. § 706(2)(A). The
                                                   “grave risk to public health,” OSHA
arbitrary and capricious standard applies to
                                                   made hexavalent chromium a high
most agencies’ decisions, including denials
                                                   priority and announced it was beginning
of petitions to institute rulemaking
                                                   a rulemaking. Id. at 145. More than
proceedings. See, e.g., American Horse
                                                   nine years later, however, “nothing ha[d]
Protection Ass’n, Inc. v. Lyng, 812 F.2d 1,
                                                   happened” and OSHA admitted that it
4 (D.C. Cir. 1987). Respondents also note,
                                                   might not promulgate a rule for another
correctly in our view, that where agency
                                                                                 (continued...)

                                               7
Nonetheless, an order directing the               evidence linking cancer to MWF exposure
Secretary to institute rulemaking                 is equivocal. Even assuming that MWF
proceedings is appropriate only in rare and       exposure causes dermatitis, asthma, HP,
compelling circumstances.        American         and other respiratory diseases (which the
Horse Protection Ass’n, Inc., 812 F.2d at         scientific evidence supports), these
7. This is not one of those circumstances.        diseases, as OSHA recognizes, are rarely
                                                  fatal. This is not to say that the health
        The Henshaw letter of December 16         effects of exposure to MWFs are
denying UAW’s petition for a rulemaking           insignificant, but only that OSHA
sets out in detail the reasons why OSHA           justifiably prioritized the regulation of
found it inappropriate to regulate MWFs.          more severely toxic substances.
Importantly, OSHA weighed the scientific
evidence of health hazards posed by                       OSHA also identified the reasons
exposure to MWFs against its other                why regulating M WFs will require an
regulatory priorities. Obviously, OSHA            “enormous” allocation of resources. First,
has limited resources, and it named three         MWFs come in a variety of types,
priorities more pressing than MWFs:               numerous combinations, and many forms.
hexavalent chromium, crystalline silica,          Exposure to one likely has different
and beryllium.       Each of these toxic          hazardous effects than to another. Sorting
substances had been identified by OSHA            all of this out would require considerable
as connected by strong evidence to fatal          effort and expense. Second, none of the
and disabling diseases. In contrast, the          scientific studies undertaken by the
                                                  Committee quantitatively assesses the risks
                                                  of MWFs. Thus, a significant amount of
       1                                          additional scientific work would have to
         (...continued)
                                                  be conducted. There is little doubt that a
ten or twenty years, “if at all.” Id. at
                                                  rulemaking proceeding that dealt
145, 154. Because of that extraordinary
                                                  comprehensively with MWFs would be, as
combination of circumstances, we were
                                                  the Henshaw letter explains, a lengthy and
about to take the extraordinary step of
                                                  complex process.
compelling OSHA to act when OSHA
finally instituted the long-promised
                                                         UAW points to a number of studies,
rulemaking process. Separate and apart
                                                  all showing the detrimental health effects
from other differences between that case
                                                  of MWF exposure. No doubt, in a perfect
and this, here OSHA, although in
                                                  world, no worker would suffer exposure to
November 1999 having placed MWF’s
                                                  MW Fs, and we are certainly sympathetic
on its Regulatory Agenda under the
                                                  to the more than 1 million workers
heading “Long-Term Action,” never
                                                  exposed to MWFs. So, too, in a perfect
found need for a rulemaking, much less
                                                  world, we would not have had the
announced an intention to commence a
                                                  apparently unnecessary and surely
rulemaking proceeding.

                                              8
lamentable ten year delay between UAW’s
petition and OSHA’s formal response. But
in the real world, the Secretary has broad
discretion to set the regulatory agenda of
the agency, and the decision to direct
OSHA’s scant resources elsewhere was
neither arbitrary nor capricious.

          III. CONCLUSION

        “Distilled to its essence, [UAW’s]
petition . . . would have us intrude into
the quintessential discretion of the
Secretary of Labor to allocate OSHA’s
resources and set its priorities.” Oil,
Chem., & Atomic Workers Union v.
OSHA, 145 F.3d 120, 123 (3d Cir. 1998).
Certainly, at one time, OSHA made
MWFs a regulatory priority. This fact
alone, however, does not compel OSHA
to promulgate a rule. To say that it does,
as UAW would have us say, would be to
also say that any time an agency explores
a potential regulatory initiative, “once the
inexorable process is begun, it must
grind on and on to its statutory end even
though the Secretary has long before
decided to refuse to adopt it. This makes
an absurdity of the Act and a fool out of
Congress.” El Congreso, 554 F.2d at
1199. This is a step we are not prepared
to take. While the process here need not
and should not have been “inexorable,”
much less as “inexorable” as it turned out
to be, we trust that we will not again see
delays such as were seen here. That
having been said, it was not arbitrary and
capricious for the Secretary to refrain
from regulating MWFs. The petition for
review will be denied.

                                               9
Pollak, J., concurring:                            determine whether respondents’
                                                   selection of new priorities should be
        I join the court’s opinion. I              deemed either “arbitrary” or
would only add that what is at issue in            “capricious.” In making this
this case is a change in regulatory policy         determination with respect to agency
coincident with a change in                        declination to institute rulemaking, “as in
administration. Counsel for respondents            more typical reviews . . . we must
said as much on oral argument: “The                consider whether the agency’s decision
metalworking fluids . . . were listed as a         was ‘reasoned.’” American Horse
high priority only following the priority-         Protection Ass’n, Inc. v. Lyng, 812 F.2d
setting process of a prior administration .        1, 5 (D.C. Cir. 1987); cf. Public Citizen
. . and those priorities are different than        Health Research Group v. Chao, 314
the current ones.” There is nothing                F.3d 143, 151 (3d Cir. 2002) (“Our
obscure, and nothing suspect, about this           polestar is reasonableness . . . .”). As the
phenomenon. That’s one of the                      court’s opinion persuasively establishes,
important things that elections are about.         OSHA’s decision was clearly “reasoned”
Whether OSHA’s current policy                      and hence not “arbitrary” or
priorities are wiser or less wise than             “capricious.”
those previously pursued is not for a
court to determine.1 Our job is to

       1

       A change in administration
       brought about by the
       people casting their votes
       is a perfectly reasonable
       basis for an executive
       agency’s reappraisal of the
       costs and benefits of its
       programs and regulations.
       As long as the agency
       remains within the bounds
       established by Congress, it
       is entitled to assess
                                                          1
       administrative records and                          (...continued)
       evaluate priorities in light                Motor Vehicle Mfrs. Ass’n of U.S., Inc.
       of the philosophy of the                    v. State Farm Mut. Auto. Ins. Co., 463
       administration.                             U.S. 29, 59 (1983) (Rehnquist, J.,
                                                   concurring in part and dissenting in
                             (continued...)        part).

                                              10
