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Oil, Chem. & Atomic Workers Union v. OSHA

ELR Citation: 28 ELR 21263
Nos. 97-3532, 145 F.3d 120/47 ERC 1383/(3d Cir., 03/16/1998)

The court denies a petition for an order compelling the Occupational Safety and Health Administration (OSHA) to cease unreasonable delay in rulemaking on hexavalent chromium. The court first holds that under the Occupational Safety and Health Act (OSH Act), 29 U.S.C. §655(f), it has jurisdiction to conduct judicial review over health and safety standards issued by the Secretary of Labor, as well as over claims in which the Secretary has not yet acted but where the delay is allegedly unreasonable. The court then holds that on the record accompanying the union's petition, OSHA has not unlawfully or unreasonably delayed the responsibility of rulemaking. OSHA has been far from idle in its consideration of hexavalent chromium. This is not a subject matter to which the agency has never given a thought, but is rather already regulated in the workplace by the agency's current standards. Moreover, OSHA has amassed awealth of data reanalyzing the health risks of hexavalent chromium and is currently in the process of collecting information about the feasibility of any proposed alterations to the standards now in place. The court is satisfied that the facts alleged here do not demonstrate inaction that is either contrary to a specific congressional mandate, in violation of a specific court order, or unduly transgressive of the agency's own tentative deadlines. Last, the court holds that the facts and the law presented here do not establish a necessity for the court's intervention in the Secretary's discretion to conduct the affairs of OSHA in this manner, the court cannot grant relief under the concept of mandamus.

Counsel for Petitioners
Colette G. Matzzie, David C. Vladeck
Public Citizen Litigation Group
1600 20th St. NW, Washington DC 20009
(202) 588-1000

Counsel for Respondents
John Shortall, Marvin Krislov
U.S. Department of Labor
200 Constitution Ave. NW, Washington DC 20210
(202) 219-6666

Before Greenberg and Scirica, JJ.