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Public Citizen Health Research Group v. Auchter

ELR Citation: 13 ELR 20877
Nos. No. 83-1071, 702 F.2d 1150/(D.C. Cir., 03/15/1983)

The D.C. Circuit reverses a district court ruling requiring the Occupational Safety and Health Administration (OSHA) to promulgate emergency ethylene oxide (EtO) exposure standards, but orders OSHA to expedite its EtO rulemaking. The court notes that although the Secretary of Labor has a duty to issue emergency standards upon making a finding of grave danger from exposure, emergency standards are to be used only in limited circumstances and that OSHA determinations are ordinarily to be accorded great deference. The court then holds that OSHA's finding of no grave danger, based on evidence of voluntary reduction of EtO exposure, was rational and supported in the record. Although OSHA based the decision on estimates of average occupational exposure and made no findings about the frequency of dangerous above-average exposure, the court does not find enough evidence of grave danger to compel the Secretary to take emergency action.

However, the record does support a finding that the current EtO standards are insufficient to prevent serious health risks. The court holds that OSHA's failure to publish a notice of proposed rulemaking after knowing of the risks for 18 months constitutes unreasonable delay under the Administrative Procedure Act. The court orders OSHA to issue a notice of proposed rulemaking within 30 days and to proceed expeditiously thereafter.

Counsel for Plaintiff
David C. Vladeck, Alan B. Morrison
Public Citizen Litigation Group
2000 P ST. NW, Rm. 700, Washington DC 20036
(202) 785-3704

Counsel for Defendant
John D. Bates, Ass't U.S. Attorney
Rm. 3828, U.S. Cthse., Washington DC 20001
(202) 633-3390

Laura Fargas
Office of the Solicitor
Department of Labor, Washington DC 20210
(202) 523-6623

Before ROBINSON, Chief Judge, and WILKEY and GINSBURG, Circuit Judges.