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Public Citizen Health Research Group v. Brock

Citation: 17 ELR 20953
No. Nos. 84-1252 et al., 823 F.2d 626/(D.C. Cir., 07/21/1987) On contempt motion

The court finds that the Occupational Safety and Health Administration (OSHA) is on the verge of unreasonably delaying the promulgation of a short-term exposure limit (STEL) for ethylene oxide (EtO) or explaining to the public why such a limit is unnecessary and holds that any delay beyond the proposed schedule of March 1988 will be unreasonable. The court declines to find at this time that OSHA is in contempt of court for its delay in making a decision on the EtO STEL issue as mandated by this court in Public Citizen Health Research Group v. Tyson, 17 ELR 20056. OSHA's decision to supplement the record that was reviewed by the court in Tyson does not amount to contempt, since Tyson does not specifically disallow such supplementation. Although OSHA failed to issue even a notice of proposed rulemaking during the period between Tyson and the filing of this action, bureaucratic inefficiency rather than bad faith appears to be the reason for OSHA's snail-like pace. The court determines that a finding of "unreasonable delay" under § 706(1) of the Administrative Procedure Act would be more appropriate to rectify the matter but hesitates to make such a finding. OSHA not only possesses vast technical expertise, but also must juggle competing rulemaking demands on its limited scientific and legal staff. Moreover, OSHA has proposed a specific timetable. The court holds that any delay beyond this timetable will be unreasonable and may subject OSHA to a contempt citation. The court further orders OSHA to submit a progress report every 90 days until the final rule has been issued.

Counsel for Petitioners
David C. Vladeck
Public Citizen Litigation Group
2000 P St. NW, Washington DC 20036
(202) 785-3704

Counsel for Respondents
Robert E. Kopp, Leonard Schaitman
Appellate Staff, Civil Division
Department of Justice, Washington DC 20530
(202) 633-3311

Before ROBINSON, Circuit Judge, and WRIGHT and McGOWAN, Senior Circuit Judges.