Public Citizen Health Research Group v. Chao, 314 F.3d 143

Public Citizen Health Research Group v. Chao

314 F.3d 143 | 3rd Cir. | 2002

Before: BECKER, Chief Judge, McKEE and(cid:13) HILL,* Circuit Judges.(cid:13) (Filed December 24, 2002)(cid:13) _________________________________________________________________(cid:13) * The Honorable James C. Hill, United States Circuit Judge for the(cid:13) Eleventh Circuit Court of Appeals, sitting by designation.(cid:13) SCOTT L. NELSON (ARGUED)(cid:13) DAVID C. VLADECK(cid:13) Public Citizen Litigation Group(cid:13) 1600 20th Street, NW(cid:13) Washington, D.C. 20009(cid:13) Counsel for Appellant(cid:13) Public Citizen Litigation Group(cid:13) EUGENE SCALIA(cid:13) Solicitor of Labor(cid:13) JOSEPH M. WOODWARD(cid:13) Associate Solicitor for Occupational(cid:13) Safety and Health(cid:13) BRUCE JUSTH (ARGUED)(cid:13) Counsel for Appellate Litigation(cid:13) JOHN SHORTALL(cid:13) U.S. Department of Labor(cid:13) Room S4004, 2000 Constitution(cid:13) Avenue, NW(cid:13) Washington, D.C. 20210-0001(cid:13) Counsel for Appellee(cid:13) Occupational Safety and Health(cid:13) Administration(cid:13) ANDRE SHRAMENKO (ARGUED)(cid:13) GLENN C. MERRITT(cid:13) Fitzpatrick & Waterman(cid:13) 333 Meadowlands Parkway(cid:13) Secaucus, New Jersey 07096(cid:13) Counsel for Intervenor(cid:13) Color Pigments Manufacturers Assoc.,(cid:13) Inc.(cid:13) 2(cid:13) JOHN L. WITTENBORN(cid:13) MICHAEL O. HILL (ARGUED)(cid:13) CHRISTINA B. PARASCANDOLA(cid:13) Collier Shannon Scott, PLCC(cid:13) 3050 K Street, NW, Suite 400(cid:13) Washington, D.C. 20007(cid:13) Counsel for Intervenor(cid:13) Chrome Coalition(cid:13) OPINION OF THE COURT(cid:13) BECKER, Chief Judge.(cid:13) This opinion addresses a Petition by Public Citizen Health(cid:13) Research Group ("Public Citizen") to review the inaction of(cid:13) the United States Department of Labor, specifically the(cid:13) Occupational Safety and Health Administration ("OSHA"),(cid:13) and to require OSHA to commence a rulemaking that would(cid:13) lower the permissible exposure limit for hexavalent(cid:13) chromium. It is not disputed that hexavalent chromium,(cid:13) which is widely used in various industries and which has(cid:13) been classified as a carcinogen, can have a deleterious(cid:13) effect on worker health. The National Institute for(cid:13) Occupational Safety and Health ("NIOSH") has for several(cid:13) decades recommended that OSHA adopt a far more(cid:13) stringent permissible exposure limit ("PEL") for hexavalent(cid:13) chromium than the consensus standard it promulgated in(cid:13) 1971. In response to a 1993 petition for rulemaking, OSHA(cid:13) agreed that there was clear evidence that exposure to(cid:13) hexavalent chromium at the consensus level can result in(cid:13) excess risk of lung cancer and other chromium-related(cid:13) illnesses, and announced that it was initiating a(cid:13) rulemaking that it expected would conclude in 1995.(cid:13) However, nearly a decade after this announcement, nothing(cid:13) has happened, evincing a clear pattern of delay.(cid:13) This matter was before us once before, in Oil, Chemical &(cid:13) Atomic Workers Union v. OSHA, 145 F.3d 120 (3d Cir.(cid:13) 1998). In that case, we declined Public Citizen’s request to(cid:13) compel agency action, for we concluded that the facts did(cid:13) not yet "demonstrate [that OSHA’s] inaction is . . . unduly(cid:13) 3(cid:13) transgressive of the agency’s own tentative deadlines." 145(cid:13) F.3d at 124. At that time, OSHA represented that it(cid:13) intended to issue a proposed rule by September 1999, and(cid:13) we found such a deadline permissible in light of alleged(cid:13) competing policy priorities, including the Clinton(cid:13) Administration’s ergonomics initiative. Yet, at the time of(cid:13) oral argument in this case, which was nine years after(cid:13) OSHA initially announced its intention to begin the(cid:13) rulemaking process, no rulemaking had yet been initiated,(cid:13) and it appeared that none would be in the foreseeable(cid:13) future. Indeed, at oral argument, OSHA’s counsel admitted(cid:13) the possibility that OSHA might not promulgate a rule for(cid:13) another ten or twenty years, if at all.(cid:13) We concluded that the delay had become unreasonable,(cid:13) and that while competing policy priorities might explain(cid:13) slow progress, they could not justify indefinite delay and(cid:13) recalcitrance in the face of an admittedly grave risk to(cid:13) public health. We therefore determined to grant the petition(cid:13) and to direct OSHA to proceed expeditiously with its(cid:13) hexavalent chromium rulemaking process. This opinion(cid:13) was drafted on an expedited basis and was circulating to(cid:13) the panel when we received OSHA’s announcement that it(cid:13) had instituted the long-sought rulemaking process, stating(cid:13) that: "The health risks associated with occupational(cid:13) exposure to hexavalent chromium are serious and demand(cid:13) serious attention. . . . We are committed to developing a(cid:13) rule that ensures proper protection to safeguard workers(cid:13) who deal with hexavalent chromium." OSHA News Release(cid:13) of Dec. 4, 2002, available at http://www.osha.gov.(cid:13) This notice appears to have been prompted by the(cid:13) displeasure clearly evidenced by the panel during oral(cid:13) argument, especially the question posed to counsel whether(cid:13) they would be receptive to mediation regarding the(cid:13) timeframe for a judicially-ordered rulemaking.(cid:13) Notwithstanding OSHA’s long delay, we salute the agency(cid:13) upon its recent action and accompanying recitation, and(cid:13) trust that it will have a good result. That said, it does not(cid:13) moot this proceeding because the agency’s action does not(cid:13) resolve an important facet of the case, namely Public(cid:13) Citizen’s request that we order OSHA to issue a proposed(cid:13) rule within 90 days and supervise OSHA’s progress.(cid:13) 4(cid:13) Accordingly, we will publish the opinion that had been(cid:13) prepared to resolve the remedy issue, and will direct that(cid:13) Public Citizen and OSHA submit to a course of mediation(cid:13) for sixty days before The Honorable Walter K. Stapleton. If(cid:13) the parties cannot agree to a workable timetable during(cid:13) that period, the panel will issue and enforce a schedule of(cid:13) its own device. We note in this regard that the recitation of(cid:13) this case’s history and our ratio decidendi, which provided(cid:13) the impetus for OSHA’s commendable action, will inform(cid:13) the proceedings to follow.(cid:13) I. Facts and Procedural Posture(cid:13) Hexavalent chromium is a compound found only rarely in(cid:13) nature but used widely in industry -- for chrome plating,(cid:13) stainless steel welding, alloy production, and wood(cid:13) preservation. The dangers of exposure to it have long been(cid:13) recognized, and include ulceration of the stomach and skin,(cid:13) necrosis, perforation of the nasal septum, asthma, and(cid:13) dermatitis. More significantly, there is strong evidence that(cid:13) inhaled hexavalent chromium is carcinogenic. Since 1980,(cid:13) the Department of Health and Human Service’s National(cid:13) Toxicology Program has designated various hexavalent(cid:13) chromium compounds as human carcinogens. The(cid:13) Environmental Protection Agency has been in accord since(cid:13) 1984, and it confirmed its carcinogenic classification of the(cid:13) compound in a review of the toxicological data in 1998.(cid:13) EPA, Toxicological Review of Hexavalent Chromium (1998),(cid:13) available at http://www.epa.gov/IRIS/toxreview/0144-tr-(cid:13) pdf. Disturbingly, the primary evidence of hexavalent(cid:13) chromium’s carcinogenicity comes not from animal studies,(cid:13) but from epidemiological studies of workers exposed to it;(cid:13) in short, as Public Citizen states, "the principal evidence is(cid:13) actual human body counts." [Pet. Br. at 5.](cid:13) Soon after the Occupational Safety and Health Act took(cid:13) effect in 1970, OSHA established a 100 æg/m3 permissible(cid:13) exposure limit ("PEL") for inhalation exposure to hexavalent(cid:13) chromium.1 That level did not reflect OSHA’s independent(cid:13) _________________________________________________________________(cid:13) 1. Two things are noteworthy about this limit. First, it represents an(cid:13) absolute ceiling, not a time-weighted average. That is, at no time can a(cid:13) 5(cid:13) judgment about the appropriate standard, but rather(cid:13) constituted a "lowest common denominator" consensus(cid:13) standard to provide workers some measure of protection(cid:13) pending OSHA’s consideration of the optimal long-term(cid:13) standard. S. Rep. No. 1282, 91st Cong., 2d Sess. 6 (1970),(cid:13) reprinted in 1970 U.S.C.C.A.N. 5177, 5182-83. The 1971(cid:13) standard remains in effect. However, although today’s(cid:13) foremost health concern regarding hexavalent chromium is(cid:13) its carcinogenicity, OSHA did not take that into account(cid:13) when promulgating the standard; rather, it was based on a(cid:13) 1943 recommendation by the American National Standards(cid:13) Institute, which in turn was based on reports generated in(cid:13) the 1920s, none of which considered chromium’s(cid:13) carcinogenic effects.(cid:13) Shortly after OSHA promulgated the consensus standard,(cid:13) NIOSH, the agency responsible for conducting research and(cid:13) making recommendations to OSHA for the prevention of(cid:13) occupational disease and injury, urged OSHA to adopt a(cid:13) PEL of 1.9 æg/m3, a level 1/52 of the existing standard. At(cid:13) that time, NIOSH concluded that the evidence of the(cid:13) carcinogenicity of a few specified hexavalent chromium(cid:13) compounds was lacking, but that all other forms were(cid:13) carcinogenic. (Lurie Dec. P 7.) Subsequently, however,(cid:13) NIOSH concluded that all forms of hexavalent chromium(cid:13) should be considered carcinogenic, and it recommended(cid:13) that the 1.9 æg/m3 standard be applied to all such(cid:13) compounds. (Id.)(cid:13) _________________________________________________________________(cid:13) particular environment’s level permissibly rise above 100 æg/m3, even if(cid:13) its time-weighted average is far lower. The construction industry alone is(cid:13) permitted to use time-weighted averaging. See 29 C.F.R. S 1926.55.(cid:13) Second, the 100 æg/m3 limit is reported as "CrO3." However, as only(cid:13) 52% of the mass of a CrO3 molecule is chromium, the actual permitted(cid:13) amount of hexavalent chromium is approximately 52æg/m3, reported as(cid:13) Cr(VI), the pure form. The existing permissible exposure limit is thus 100(cid:13) æg/m3, reported as CrO3, or 52 æg/m3, reported as Cr(VI). Because both(cid:13) Public Citizen’s proposed PEL and the existing PEL are reported as(cid:13) CrO3, we will refer to that measurement throughout this opinion unless(cid:13) otherwise stated. We also note that Cr(VI), CrVI, and CrO3 all refer to(cid:13) hexavalent chromium; because we faithfully reproduce quotations that(cid:13) use different notations, there is a lack of uniformity in our opinion.(cid:13) 6(cid:13) In 1993, Public Citizen petitioned OSHA to issue an(cid:13) emergency temporary standard that would set a PEL of 0.5(cid:13) æg/m3 as an 8-hour weighted average. The Occupational(cid:13) Safety and Health Act requires OSHA to issue an(cid:13) emergency temporary standard without the usual notice-(cid:13) and-comment procedures if it finds that such action is(cid:13) needed to protect employees against grave danger. 29(cid:13) U.S.C. S 655(c). OSHA denied the petition because it(cid:13) contended that "the extremely stringent judicial and(cid:13) statutory criteria for issuing" an emergency standard were(cid:13) not met. (Dear Letter at 2.) It did, however, acknowledge(cid:13) that its existing standard was inadequate: "OSHA agrees(cid:13) that there is clear evidence that exposure to CrVI at the(cid:13) current PEL of 100 æg/m3 can result in an excess risk of(cid:13) lung cancer and other CrVI-related illnesses." (Id.) It(cid:13) therefore announced that(cid:13) OSHA . . . is beginning a Section 6(b) rulemaking for(cid:13) occupational exposure to CrVI. We are preparing the(cid:13) necessary health and economic impact assessments to(cid:13) support this regulatory action. We anticipate that(cid:13) Notice of Proposed Rulemaking will be published in the(cid:13) Federal Register not later than March 1995.(cid:13) (Id.)(cid:13) This timetable was short-lived. Only a month after its(cid:13) response to Public Citizen’s rulemaking petition, OSHA(cid:13) reported that the date for issuance of a proposed standard(cid:13) had slipped from March to May 1995, and by May 1995 the(cid:13) anticipated issuance date had been pushed back again to(cid:13) December 1995. Thus began a pattern of delay -- the(cid:13) November 1995 agenda reset the date to July 1996; the(cid:13) May 1996 agenda moved it to June 1997; and the(cid:13) November 1996 agenda moved it again, to September 1997.(cid:13) Amidst this ongoing delay, OSHA commissioned a(cid:13) comprehensive risk assessment of hexavalent chromium.(cid:13) This assessment, which became known as the "Crump(cid:13) Report," concluded that exposure at the current PEL (100(cid:13) æg/m3) over a 45-year working lifetime could be expected to(cid:13) result in between 88 and 342 excess cancer deaths per(cid:13) thousand workers. Moreover, the Crump Report concluded(cid:13) that significant numbers of excess cancer deaths could be(cid:13) 7(cid:13) expected even at much lower levels of exposure. For(cid:13) example, exposure at 2 æg/m3 could be expected to result(cid:13) in between 1.8 and 8.9 excess cancer deaths per thousand(cid:13) workers, while exposure at 1 æg/m3 would yield 0.9 to 4.4(cid:13) excess cancer deaths per thousand workers.2(cid:13) OSHA’s November 1996 semiannual regulatory agenda(cid:13) endorsed the Crump analysis, and OSHA explicitly(cid:13) acknowledged that "[t]here appears to be no dispute that(cid:13) the current PEL is too high" and "must be greatly reduced."(cid:13) (Lure Dec. P12.) Accordingly, OSHA stated that it was(cid:13) considering a new standard 10 to 100 times lower than the(cid:13) existing one: "OSHA is preliminarily considering a new(cid:13) TWA [Time-Weighted Average] PEL in the range of 0.5 - 5.0(cid:13) æg/m3, measured and reported as chromium (VI)." (Id.)(cid:13) Even at that level, it noted, there would be significant risk(cid:13) of excess cancer deaths. (Id.)(cid:13) Addressing these events in its present brief, OSHA(cid:13) contends that it was then concerned with methodological(cid:13) imperfections in the available data. For example, the(cid:13) Crump Report did not control for the effects of smoking or(cid:13) asbestos, factors obviously related to lung cancer incidence;(cid:13) if the studied populations of chromium-exposed workers(cid:13) smoked more than the general population, smoking could(cid:13) have accounted for some of the excess deaths. Industry(cid:13) groups therefore pressured OSHA to wait for the results of(cid:13) the then-forthcoming Johns Hopkins study, which, in the(cid:13) industry’s view, was "expected to be the most accurate and(cid:13) complete database on chromium exposure and mortality(cid:13) available." (Id. at P 14-15.) OSHA also represents that(cid:13) budget cuts, government shutdowns, and new(cid:13) responsibilities under the Small Business Regulatory(cid:13) Enforcement Fairness Act of 1996 limited the resources(cid:13) available for hexavalent chromium rulemaking. In August(cid:13) 1997, OSHA explained to Public Citizen that work on the(cid:13) rule was continuing, but that these considerations had(cid:13) delayed progress and prevented it from expediting the(cid:13) rulemaking. (Letter of Greg Watchman to Dr. Sidney M.(cid:13) Wolfe.)(cid:13) _________________________________________________________________(cid:13) 2. The Crump Report cited measurements of exposure as Cr(VI) instead(cid:13) of as CrO3. The numbers here reflect conversion to CrO3 measurements.(cid:13) 8(cid:13) Public Citizen, discouraged by what it viewed as a pattern(cid:13) of inaction, urged OSHA in March 1997 to commit to a(cid:13) timetable for rulemaking. (Lurie Dec. P17.) Instead, in its(cid:13) April 1997 agenda, OSHA announced that the expected(cid:13) issuance of a proposed standard had been delayed a full(cid:13) year, to September 1998, (id. at P10), and in a letter to(cid:13) Public Citizen declined to commit to a more concrete(cid:13) timetable. (Watchman Letter at 2.)(cid:13) In late 1997, Public Citizen filed a petition in this Court(cid:13) for review of OSHA’s allegedly unreasonable delay. See Oil(cid:13) Workers, 145 F.3d at 120. It contended that expedited(cid:13) action on a new rule was needed because, as OSHA itself(cid:13) had stated in 1996, "the sooner PELs are reduced, the(cid:13) sooner the risk of death from lung cancer . . . will be(cid:13) reduced." (Lurie Dec. P12, citing 1996 OSHA agenda.)(cid:13) However, OSHA disputed this urgency by referencing the(cid:13) Crump Report’s failure to control for smoking and asbestos(cid:13) exposure, and Intervenors Chrome Coalition and Color(cid:13) Pigment Manufacturer’s Association, who have also(cid:13) intervened in the current case, argued that the existing risk(cid:13) assessments failed to distinguish among the various(cid:13) compounds of hexavalent chromium.(cid:13) We declined Public Citizen’s request to compel agency(cid:13) action, for we concluded that the facts did not yet(cid:13) "demonstrate that inaction is . . . unduly transgressive of(cid:13) the agency’s own tentative deadlines." Oil Workers, 145(cid:13) F.3d at 124. Key to our decision was our observation that(cid:13) the Secretary of Labor has "quintessential discretion . . . to(cid:13) allocate OSHA’s resources and set its priorities," id. at 123,(cid:13) and while we recognized that "delays that might be(cid:13) altogether reasonable in the sphere of economic regulation(cid:13) are less tolerable when human lives are at stake," we(cid:13) determined that OSHA and the Intervenors "raise[d] serious(cid:13) questions about the validity of the data and assumptions(cid:13) underlying [Public Citizen’s] calculations." Id. (citations(cid:13) omitted). Given these scientific questions, OSHA’s superior(cid:13) technical expertise, and its professed plan to issue a(cid:13) deadline for proposed rulemaking in September 1999, we(cid:13) concluded that OSHA’s delay was not yet unreasonable. Id.(cid:13) Following our ruling, OSHA adhered to its September(cid:13) 1999 pledge in each of its regulatory agendas published(cid:13) 9(cid:13) through April 1999. But it in fact issued no proposed rule(cid:13) in September 1999, and in its November 1999 agenda it(cid:13) announced that its new target date was June 2001. (Lurie(cid:13) Dec. P10.) OSHA explains that this was not a period of(cid:13) inactivity; rather, it completed a number of rulemaking(cid:13) projects, most of which had been pending when Public(cid:13) Citizen filed its first petition in 1993. For example, in 1997,(cid:13) OSHA promulgated a final standard regulating occupational(cid:13) exposure to methylene chloride, a widely-used chemical it(cid:13) found to be carcinogenic. See 62 Fed. Reg. 1494 (Jan. 10,(cid:13) 1997). Likewise, in 1998, it issued a final rule on(cid:13) respirators, and another requiring adequate training for(cid:13) operators of powered industrial trucks. 63 Fed. Reg. 66238(cid:13) (Dec. 1, 1998). OSHA further explains that in 1999 and(cid:13) 2000, it "focused most of its rulemaking resources on(cid:13) issuing an ergonomics standard before the end of the(cid:13) [Clinton] Administration’s term. A proposed rule was issued(cid:13) on November 23, 1999, and a final rule was issued less(cid:13) than a year later, a timetable that required tremendous(cid:13) agency resources." [OSHA Br. at 10 (citations omitted).](cid:13) Meanwhile, August 2000 saw the release of the long-(cid:13) awaited Johns Hopkins study on hexavalent chromium. 3 In(cid:13) comparison to previous studies, it(cid:13) had a larger cohort, more lung cancer deaths, and had(cid:13) smoking information for most of the cohort. Many of(cid:13) the exposure estimates of the current study are from(cid:13) direct measurements; a portion were from models(cid:13) using contemporary data. More important, however,(cid:13) the ambient measures or estimates of exposure were(cid:13) concurrent with the work history and are of hexavalent(cid:13) chromium directly, not derived from other measures.(cid:13) Furthermore, the cumulative exposure groups in the(cid:13) current study represent lower exposures than those(cid:13) . . . [in a prior] study, providing better risk estimates at(cid:13) these lower levels of exposure, an important(cid:13) consideration for quantitative risk assessment.(cid:13) _________________________________________________________________(cid:13) 3. Public Citizen alleges that many of the Hopkins study’s results, if not(cid:13) its actual data, had been available to OSHA since 1995. [Public Citizen(cid:13) Br. at 23.](cid:13) 10(cid:13) Herman J. Gibb et al., Lung Cancer Among Workers in(cid:13) Chromium Chemical Production, 38 Am. J. Industrial(cid:13) Medicine 115, 124 (2000). The Hopkins Study "confirm[ed](cid:13) the elevated lung cancer risk from hexavalent chromium(cid:13) exposure observed in other studies." Id. Specifically, it(cid:13) found that chromium-exposed workers were 2.24 times as(cid:13) likely to die from lung cancer as a nonexposed population,(cid:13) id. at 125, and that even exposure at a level of 1 æg/m3,(cid:13) reported as Cr(VI), led to an observed-to-expected cancer(cid:13) mortality rate of 1.57. Id.(cid:13) Although the Hopkins Study explicitly sought to address(cid:13) the shortcomings in previous empirical research, namely(cid:13) the lack of controls for smoking, asbestos, and other(cid:13) environmental factors, its release did not spur OSHA into(cid:13) action. The study was released in August 2000, but OSHA’s(cid:13) November 2000 agenda pushed the date for a proposed rule(cid:13) back to September 2001. (Lurie Dec. P10.) OSHA’s second-(cid:13) most-recent agenda, issued December 3, 2001, reflected(cid:13) another, more radical departure from previous plans: for(cid:13) the first time since 1994, the hexavalent chromium(cid:13) rulemaking was denominated a "long-term action," and the(cid:13) timetable for action stated that the date for a proposed rule(cid:13) was "to be determined." (Lurie Dec. P10.)(cid:13) OSHA offers a number of explanations for the delay that(cid:13) has now become indefinite. It notes that "[t]he day the(cid:13) [Bush] Administration took office, it instructed the agencies(cid:13) that any new regulatory actions must be reviewed and(cid:13) approved by a department or agency head appointed after(cid:13) January 20, 2001." [OSHA Br. at 13-14, citing Andrew H.(cid:13) Card, Jr., Memorandum for the Heads and Acting Heads of(cid:13) Executive Departments and Agencies (Jan. 20, 2001).] As it(cid:13) was not headed by a presidential appointee until August 3,(cid:13) 2001, OSHA contends that it could not begin to set its new(cid:13) regulatory priorities until that time. Even then, it asserts,(cid:13) two extraordinary unforeseen events -- the attacks on the(cid:13) World Trade Center and Pentagon and the anthrax mailings(cid:13) -- required it immediately to divert significant resources to(cid:13) safety efforts. See Testimony of John L. Henshaw, Assistant(cid:13) Secretary of Labor for Occupational Safety and Health,(cid:13) before the House Subcommittee on Labor, Health, and(cid:13) Human Services, 2002 WL 2010818 (Feb. 14, 2002).(cid:13) 11(cid:13) Even amidst these distractions, OSHA represents, it has(cid:13) continued to evaluate the need for a new hexavalent(cid:13) chromium rule. It claims that from 1998 through the(cid:13) present, it has "engaged outside organizations to work on(cid:13) pertinent aspects of the health-risk and feasibility issues(cid:13) that would arise in an OSHA rulemaking." [OSHA Br. at(cid:13) 11]. For example, ToxiChemica International has worked on(cid:13) evaluating an update of an epidemiological study of workers(cid:13) exposed to hexavalent chromium, and NIOSH has(cid:13) investigated the mechanistic relationship between(cid:13) hexavalent chromium and cellular events related to lung(cid:13) carcinogenesis. OSHA has also conducted more than(cid:13) twenty visits to worksites where hexavalent chromium is(cid:13) present to determine patterns of employee exposure,(cid:13) specific routes of exposure, and types and costs of(cid:13) engineering controls and personal protective equipment(cid:13) used in particular industries.(cid:13) In OSHA’s submission, the problem is that it "believes(cid:13) that the information now available is inconclusive on(cid:13) important issues, such as whether the epidemiological(cid:13) studies . . . apply to all Cr VI compounds and the utility of(cid:13) the data to establish a dose-response relationship." [Id. 16.](cid:13) Although the Hopkins Study was a step forward, OSHA(cid:13) points out that its authors acknowledged certain(cid:13) limitations, particularly in estimating the cumulative(cid:13) exposure for the different individuals in the cohort. [Id. at(cid:13) 26.] The study also did not resolve the dispute over whether(cid:13) all hexavalent chromium compounds present the same(cid:13) degree of risk. [Id. at 27.] Because OSHA has decided that(cid:13) it would benefit from public input and expert criticism on(cid:13) these issues, it has published a request for information(cid:13) (RFI) in its August 2002 regulatory agenda. After the time(cid:13) for response, OSHA states, it will evaluate all of the(cid:13) information available and decide how to proceed. See 67(cid:13) Fed. Reg. 33308, 33342-43 (May 13, 2002).(cid:13) Public Citizen brought the present petition for review(cid:13) alleging that "[d]eference to an agency’s priorities and(cid:13) timetables only goes so far," and arguing that,"at some(cid:13) point, a court must tell an agency that enough is enough."(cid:13) [Public Citizen Br. at 2.] The Administrative Procedure Act,(cid:13) 5 U.S.C. S 706(1), creates a right of action by an aggrieved(cid:13) 12(cid:13) party to compel unreasonably delayed agency action. When(cid:13) the action sought is the promulgation of an occupational(cid:13) exposure standard under 29 U.S.C. S 655, the federal(cid:13) courts of appeals have exclusive jurisdiction under 29(cid:13) U.S.C. S 655(f), which we have interpreted to provide(cid:13) "jurisdiction to conduct judicial review over the health and(cid:13) safety standards issued by the Secretary of Labor, as well(cid:13) as over claims in which the Secretary has not yet acted but(cid:13) where her delay is allegedly unreasonable." Oil Workers,(cid:13) 145 F.3d at 122.(cid:13) II. Discussion(cid:13) In denying Public Citizen’s earlier petition to compel a(cid:13) hexavalent chromium rulemaking, we acknowledged"the(cid:13) quintessential discretion of the Secretary of Labor to(cid:13) allocate OSHA’s resources and set its priorities." Oil(cid:13) Workers, 145 F.3d at 123. At the same time, however, we(cid:13) recognized that the Secretary’s discretion is not(cid:13) unbounded, and noted our obligation under the APA to(cid:13) "compel agency action unlawfully withheld or unreasonably(cid:13) delayed." Id. (quoting 5 U.S.C. S 706(1)). Our polestar is(cid:13) reasonableness, and while in 1997 we found reasonable(cid:13) OSHA’s delay in the face of scientific uncertainty and(cid:13) competing regulatory priorities, we now find ourselves(cid:13) further from a new rule than we were then. We examine(cid:13) each of OSHA’s justifications in turn.4 (cid:13) _________________________________________________________________(cid:13) 4. Intervenors Chrome Coalition and Color Pigment Manufacturer’s(cid:13) Association, Inc. ("CPMA") filed amicus briefs arguing, inter alia: that our(cid:13) prior decision in Oil Worker is res judicata upon this case since the facts(cid:13) are similar; that the Occupational Safety and Health Act imposes on(cid:13) OSHA no duty to act; that Public Citizen’s risk assessments and(cid:13) scientific conclusions should be stricken due to methodological defects;(cid:13) that Public Citizen lacks standing; that Public Citizen’s analysis fails to(cid:13) distinguish among various forms of hexavalent chromium; and that we(cid:13) lack subject matter jurisdiction because Public Citizen has not pled that(cid:13) its principal place of business is within our jurisdiction. We have(cid:13) considered each of their concerns and find them to be without merit. We(cid:13) note specifically that, under the Supreme Court’s decision in Panhandle(cid:13) Eastern Pipe Line Co. v. Federal Power Comm’n, 324 U.S. 635, 638-39(cid:13) (1945), courts have read circuit-selection clauses in statutes providing(cid:13) for review of agency action in the courts of appeals as venue provisions,(cid:13) not jurisdiction provisions. Also, while CPMA may be correct that a(cid:13) regulatory distinction ought to be drawn between chrome pigments and(cid:13) other types of hexavalent chromium compounds, CPMA may raise this(cid:13) concern as part of the rulemaking process.(cid:13) 13(cid:13) A. Has OSHA’s Delay Been Excessive?(cid:13) In 1993, OSHA acknowledged that the existing(cid:13) hexavalent chromium standard is inadequate and "that(cid:13) there is clear evidence that exposure to Cr VI at the current(cid:13) PEL of 100 æg/m3 can result in an excess risk of lung(cid:13) cancer and other CrVI-related illnesses." (Dear Letter at 2.)(cid:13) That was fully nine years ago, and its first target date for(cid:13) a proposed rule -- March 1995 -- is now more than seven(cid:13) years past. OSHA has missed all ten of its self-imposed(cid:13) deadlines, including the September 1999 target it offered to(cid:13) this Court in Oil Workers. Far from drawing closer to a(cid:13) rulemaking, all evidence suggests that ground is being lost.(cid:13) OSHA’s December 2001 regulatory agenda demoted the(cid:13) rulemaking from a "high priority" to a "long term action"(cid:13) with a timetable "to be determined." In fact, at oral(cid:13) argument, OSHA’s counsel admitted the possibility that(cid:13) another ten or even twenty years might pass before it(cid:13) issues a rule, if it ever does.(cid:13) OSHA responds that Public Citizen’s concerns about the(cid:13) missed deadlines and recent reclassification are(cid:13) misconceived. It explains that under the Regulatory(cid:13) Flexibility Act, 5 U.S.C. S 602, agencies must publish(cid:13) regulatory agendas that include all rules the agency intends(cid:13) to propose or promulgate that are "likely to have a(cid:13) significant economic impact on a substantial number of(cid:13) small entities." A rule’s inclusion in an agency’s agenda(cid:13) does not, however, require the agency to consider or act on(cid:13) that item. See 5 U.S.C. S 602(d). The Secretary of Labor has(cid:13) recently stated her belief that "it is inappropriate to(cid:13) routinely set target dates that the agency cannot meet and(cid:13) intends to list only realistic target dates in future regulatory(cid:13) agendas," Daily Labor Report (BNA, Apr. 22, 2002), but(cid:13) OSHA represents that this is an act of grace, not necessity:(cid:13) "[B]ecause an item’s listing in the regulatory agenda does(cid:13) not mean that the agency must consider or act on that(cid:13) item, the listing of unrealistic or unachieved target dates(cid:13) cannot be a basis for compelling the agency to act." [OSHA(cid:13) Br. at 33.](cid:13) Regarding hexavalent chromium’s recent downgrade to a(cid:13) "long-term project," OSHA clarifies that this is a reflection(cid:13) of whether the rulemaking will be completed in a short(cid:13) 14(cid:13) period of time and represents that the designation carries(cid:13) no implication about a rulemaking’s relative importance to(cid:13) other matters OSHA is considering. [OSHA Br. at 31.] The(cid:13) items listed as "high priority" in the December 2001(cid:13) agenda, it says, were simply those on which OSHA intended(cid:13) to take action in fiscal 2002. See 66 Fed. Reg. 61221 (Dec.(cid:13) 3, 2001). It therefore contends that the priority downgrade(cid:13) was more a clarification than a change in the agency’s(cid:13) priorities.(cid:13) We find neither of these explanations satisfactory. We(cid:13) agree with OSHA insofar as its failure strictly to follow its(cid:13) published agenda is not actionable, but this defense misses(cid:13) the point: OSHA’s persistent failure to meet deadlines is not(cid:13) the disease itself, but rather a symptom of its dilatory(cid:13) approach to the hexavalent chromium rulemaking process.(cid:13) Similarly, even if OSHA’s decision to downgrade the(cid:13) project’s priority truly represents a clarification rather than(cid:13) a change, it still gives clear evidence that at least another(cid:13) year will pass before OSHA takes even the first formal step(cid:13) toward promulgating a rule. Incidentally, we are skeptical(cid:13) of OSHA’s reassurance that the reclassification has no(cid:13) substantive implications, for five years ago it represented to(cid:13) this Court that it intended to issue a proposed rule in(cid:13) September 1999. Not only did it fail to issue a rule in 1999,(cid:13) it concedes even now that it is far from doing so.(cid:13) Section 6(b) of the Occupational Safety and Health Act(cid:13) requires the Secretary of Labor to "set the standard which(cid:13) most adequately assures, to the extent feasible, on the(cid:13) basis of the best available evidence, that no employee will(cid:13) suffer material impairment of health or functional capacity(cid:13) even if such employee has regular exposure to the hazard(cid:13) dealt with by such standard for the period of his working(cid:13) life." 29 U.S.C. S 655(b). The Supreme Court has found that(cid:13) this language compels action: "[B]oth the language and(cid:13) structure of the Act, as well as its legislative history,(cid:13) indicate that it was intended to require the elimination, as(cid:13) far as feasible, of significant risks of harm." Industrial Union(cid:13) Department, AFL-CIO v. American Petroleum Institute , 448(cid:13) U.S. 607, 641 (1980). As such, the agency’s priorities are(cid:13) judicially reviewable, and this Court and others have(cid:13) compelled OSHA to take action to address significant risks.(cid:13) 15(cid:13) See, e.g., United Steelworkers of America v. Pendergrass,(cid:13) 819 F.2d 1263 (3d Cir. 1987); In re International Chemical(cid:13) Workers Union, 958 F.2d 1144 (D.C. Cir. 1992); Public(cid:13) Citizen Helath Research Group v. Brock, 823 F.2d 626 (D.C.(cid:13) Cir. 1987). Indeed, OSHA itself does not seriously contest(cid:13) the existence of a private cause of action compelling it to(cid:13) proceed with a rulemaking.(cid:13) We find extreme OSHA’s nine-year (and counting) delay(cid:13) since announcing its intention to begin the rulemaking(cid:13) process, even relative to delays other courts have(cid:13) condemned in comparable cases. Indeed, in no reported(cid:13) case has a court reviewed a delay this long without(cid:13) compelling action. In Chemical Workers Union, 958 F.2d at(cid:13) 1144, for example, petitioners had first requested that(cid:13) OSHA promulgate a rule for cadmium in 1986. Similar to(cid:13) this case, the court had denied an initial petition to compel(cid:13) OSHA to act, based in part on OSHA’s prediction that it(cid:13) would issue a proposed rule later that year. When it failed(cid:13) to issue a proposed rule until 1990 and estimated that a(cid:13) final rule would not be forthcoming until 1992, the court(cid:13) said:(cid:13) [E]ven if finally completed by August 31, 1992, the(cid:13) cadmium rulemaking will have taken over six years.(cid:13) This is an extraordinarily long time, in light of the(cid:13) admittedly serious health risks associated with the(cid:13) current permissible levels of cadmium exposure under(cid:13) the twenty-year-old standards still in place. . . . Under(cid:13) the circumstances, we do not see how any further(cid:13) delay . . . -- resulting in continued exposure of workers(cid:13) to dangerous levels of cadmium -- could be excusable.(cid:13) Id. at 1150 (citations omitted). It therefore granted(cid:13) petitioner’s motion to impose a deadline for completion of(cid:13) the cadmium rulemaking. Id. The length of the delay here(cid:13) is already two-and-a-half years longer than the delay the(cid:13) D.C. Circuit found unacceptable, and no proposed rule is in(cid:13) sight.(cid:13) Similarly, in Public Citizen Health Research Group v.(cid:13) Auchter, 702 F.2d 1150 (D.C. Cir. 1983), OSHA had been(cid:13) petitioned in 1981 for a new exposure standard for ethylene(cid:13) oxide ("EtO"), a carcinogenic substance to which an(cid:13) 16(cid:13) estimated 75,000 hospital workers were exposed. As in the(cid:13) case at bar, the agency refused to issue an emergency(cid:13) temporary standard, but acknowledged the current(cid:13) standard’s insufficiency and began the rulemaking process.(cid:13) It issued an "advance notice of proposed rulemaking" in(cid:13) 1982, but it had not issued the proposed rule as of 1983,(cid:13) and it estimated that a final rule would not be issued until(cid:13) the fall of 1984. The court found the anticipated three-year(cid:13) delay unacceptable, stating that:(cid:13) Three years from announced intent to regulate to final(cid:13) rule is simply too long given the significant risk of(cid:13) grave danger EtO poses to the lives of current workers(cid:13) and the lives and well-being of their offspring. Delays(cid:13) that might be altogether reasonable in the sphere of(cid:13) economic regulation are less tolerable when human(cid:13) lives are at stake. . . . This is particularly true when(cid:13) the very purpose of the governing Act is to protect(cid:13) those lives.(cid:13) Id. at 1154. See also Brock, 823 F.2d at 628, 629 ("With(cid:13) lives hanging in the balance, six years is a very long time,"(cid:13) and "any delay whatever beyond the proposed schedule is(cid:13) unreasonable."); Oil, Chemical & Atomic Workers(cid:13) International Union v. Zegeer, 768 F.2d 1480, 1487 (D.C.(cid:13) Cir. 1985) (addressing a delay of over five years in issuing(cid:13) a proposed rule for exposure to radioactive gases, and(cid:13) stating that a "reasonable time may encompass months,(cid:13) occasionally a year or two, but not several years or a(cid:13) decade").(cid:13) OSHA contends that among these cases, only in Auchter(cid:13) did a court compel the agency to issue a proposed rule; the(cid:13) others dealt with situations where the agency had issued a(cid:13) proposed rule but was allegedly dilatory in issuing a final(cid:13) regulation. It further notes that the D.C. Circuit later(cid:13) characterized Auchter as "one of the exceptionally rare(cid:13) cases where this court has actually issued an order(cid:13) compelling an agency to press forward with a specific(cid:13) project." In re Barr Laboratories, Inc. 930 F.2d 72, 76 (D.C.(cid:13) Cir. 1991). OSHA also points out that in Auchter , the court(cid:13) had been "persuaded, largely by agency concessions, that(cid:13) the project backed by plaintiff was plainly more‘urgent’(cid:13) 17(cid:13) than any that the project’s acceleration might retard," id.,(cid:13) and it emphasizes that no similar concession exists here.(cid:13) While we acknowledge that Auchter, Chemical Workers(cid:13) Union, and the other cases are in some ways(cid:13) distinguishable from this one, we nonetheless regard them(cid:13) as valuable precedent. For example, in Auchter , even(cid:13) though OSHA admitted that the plaintiff ’s project was the(cid:13) most urgent on its agenda, the case at bar is not ultimately(cid:13) distinguishable because the extremity of delay more than(cid:13) overcomes the fact that hexavalent chromium does not(cid:13) dominate OSHA’s list of priorities. We also note that(cid:13) although the D.C. Circuit termed cases in which courts(cid:13) order agencies to press forward with a specific project(cid:13) "exceptionally rare," the initial decision to make hexavalent(cid:13) chromium a "high priority" came from OSHA itself, not this(cid:13) Court. It was also OSHA’s decision to announce in 1993(cid:13) that it was "beginning a . . . rulemaking for occupational(cid:13) exposure to Cr VI," and that it "anticipate[d] that Notice of(cid:13) Proposed Rulemaking will be published . . . not later than(cid:13) 1995." (Lurie Dec. P9.) At all events, we think it(cid:13) "exceptionally rare" that an agency would for years classify(cid:13) an action as a "high priority," only to demote it to a "long(cid:13) term project" upon the release of a study that provides(cid:13) more convincing evidence of the danger than had previously(cid:13) existed.(cid:13) We are satisfied that OSHA’s delay in this case is(cid:13) objectively extreme, and we find its regression alarming in(cid:13) the face of its own 1996 statement that "[t]here appears to(cid:13) be no dispute that the current PEL is too high." We(cid:13) therefore conclude that, absent a scientific or policy-based(cid:13) justification for its delay, we must compel it to act. (cid:13) B. Does Scientific Uncertainty Justify OSHA’s Delay?(cid:13) In Oil Workers, the first installment of this case, Public(cid:13) Citizen relied upon the Crump Report’s finding that(cid:13) between 88 and 342 out of every 1,000 workers exposed to(cid:13) hexavalent chromium will die from cancer attributable to(cid:13) that exposure. 145 F.3d at 123. We recognized, however,(cid:13) that there were "serious questions about the validity of the(cid:13) data and assumptions underlying Petitioner’s calculations."(cid:13) Id. For example, as the Intervenors noted, it was "wrong to(cid:13) 18(cid:13) assume that all workers in industries dealing with(cid:13) chromium in some way or another are exposed to 100 æg/m3(cid:13) hexavalent chromium, every working day for 45 years." Id.(cid:13) We likewise observed that some workers breathe through(cid:13) respirators that protect them from exposure to chromium,(cid:13) and that Public Citizen’s calculations failed to distinguish(cid:13) between lead chromate and other hexavalent chromium(cid:13) compounds with potentially different carcinogenicities. Id.(cid:13) at 124. Finally, and most importantly, we were troubled by(cid:13) the Crump Report’s failure to control for smoking and(cid:13) asbestos inhalation, two factors likely related to lung(cid:13) cancer incidence. Id.(cid:13) Based on this imperfect science and our recognition that(cid:13) "OSHA . . . possesses enormous technical expertise we(cid:13) lack," we concluded that we were "not in a position to tell(cid:13) the Secretary how to do her job." Id. OSHA offers several(cid:13) reasons for us to continue that deferential posture. First,(cid:13) OSHA allegedly "has not yet completed its evaluation of the(cid:13) Hopkins study." [OSHA Br. at 26.] It points out that the(cid:13) study’s authors acknowledged certain limitations of their(cid:13) data, particularly in estimating the cumulative exposure for(cid:13) different individuals in the cohort, and also that the study(cid:13) did not address the previous dispute over whether all(cid:13) hexavalent chromium compounds present the same degree(cid:13) of risk. [Id. at 26-27.] OSHA summarizes that, "even(cid:13) assuming the Hopkins study is the most useful single study(cid:13) available, it does not answer all of the technically complex(cid:13) questions about carcinogenicity and other health effects(cid:13) that OSHA would need to resolve in developing a Cr VI(cid:13) rule." [Id. at 27.](cid:13) Second, OSHA alleges that "Public Citizen virtually(cid:13) ignores the other critical components of a Cr VI(cid:13) rulemaking." [Id.] One of OSHA’s requirements is that a(cid:13) standard must be technologically feasible, and given that(cid:13) one governing hexavalent chromium would apply to(cid:13) numerous industries, the feasibility analysis is quite(cid:13) complex. While it admits that it has successfully addressed(cid:13) issues of comparable complexity in the past, it notes that(cid:13) "these efforts have not been successful where courts have(cid:13) found insufficient rigor in the agency’s analysis of scientific(cid:13) and economic issues." [Id. at 30] See, e.g., Industrial Union(cid:13) 19(cid:13) Dep’t, 448 U.S. at 662 (invalidating benzene standard); AFL-(cid:13) CIO v. OSHA, 965 F.2d 962 (11th Cir. 1992) (vacating(cid:13) standard setting new exposure limits for over 400(cid:13) substances). The bottom line, OSHA states, is that"[t]he(cid:13) belief that a chemical may be carcinogenic does not lead(cid:13) easily to the appropriate PEL for that chemical," and forcing(cid:13) it to issue a rule prematurely will likely result in that rule(cid:13) being overturned in court. [OSHA Br. at 24.](cid:13) We agree with OSHA that the evidence may be imperfect,(cid:13) that the feasibility inquiry is formidable, and that(cid:13) premature rulemaking is undesirable. But given the history(cid:13) chronicled above, we find these concerns insufficient to(cid:13) justify further delay in regulating hexavalent chromium.(cid:13) First, while it is true that the Hopkins study’s authors(cid:13) recognized certain limitations of their data,(cid:13) the epidemiological data as of the mid-1990s were(cid:13) sufficient for EPA, ATSDR, NIOSH, the National(cid:13) Toxicology Program, and the International Agency for(cid:13) Research on Cancer to find hexavalent chromium(cid:13) carcinogenic; for OSHA to commence a rulemaking(cid:13) proceeding; and for OSHA’s contractor to estimate that(cid:13) exposures at a fraction of the current PEL would result(cid:13) in significant excess cancer deaths.(cid:13) [Public Citizen Reply Br. at 19-20.] Moreover, OSHA based(cid:13) its delay on its professed desire to consider that study(cid:13) because of its superior data and ability to control for(cid:13) smoking. It was released in August 2000, more than two(cid:13) years ago, but it has hardly facilitated the rulemaking(cid:13) process.5 OSHA now offers it as a justification for further(cid:13) inaction, claiming that it has not completed its evaluation(cid:13) of the study’s findings and that the study’s conclusions(cid:13) "can be much better assessed when experts in the field(cid:13) have had the opportunity to review and criticize it." [OSHA(cid:13) Br. at 27.](cid:13) We are unconvinced. Public Citizen points out that, as(cid:13) the study was published in a peer-reviewed journal, experts(cid:13) in the field have already had the opportunity to criticize it.(cid:13) _________________________________________________________________(cid:13) 5. Indeed, the Hopkins study’s results were first presented publicly in(cid:13) 1995. [Public Citizen Br. at 10, 44.](cid:13) 20(cid:13) [Id. at 20.] Notably, in the two years since its publication,(cid:13) "no response or letter criticizing it has been published." [Id.](cid:13) Especially since many of the study’s findings have been(cid:13) available since 1995, see supra at note 5, the time for(cid:13) examining it has passed; we also note that, if further(cid:13) professional criticism is absolutely necessary, the notice-(cid:13) and-comment process will provide an ample opportunity.(cid:13) Nor do we find persuasive OSHA’s broad assertion that(cid:13) the Hopkins study "does not answer all of the technically(cid:13) complex questions . . . that OSHA would need to resolve in(cid:13) developing a Cr VI rule." [OSHA Br. at 27 (emphasis(cid:13) added).] This is obviously true, but without more it is(cid:13) irrelevant, for the Occupational Safety and Health Act does(cid:13) not require scientific certainty in the rulemaking process.(cid:13) Indeed, read fairly, the Act virtually forbids delay in pursuit(cid:13) of certainty -- it requires regulation "on the basis of the(cid:13) best available evidence," 29 U.S.C. S 655(b)(5) (emphasis(cid:13) added), and courts have warned that "OSHA cannot let(cid:13) workers suffer while it awaits the Godot of scientific(cid:13) certainty." United Steelworkers of America v. Marshall, 647(cid:13) F.2d 1189, 1266 (D.C. Cir. 1980).(cid:13) OSHA points to one specific shortcoming of the Hopkins(cid:13) study -- that it "did not address the previous dispute over(cid:13) whether all hexavalent chromium compounds present the(cid:13) same degree of risk." [OSHA Br. at 27] That is indeed a(cid:13) question it did not resolve, and this uncertainty is the(cid:13) principal topic of Intervenor CPMA’s brief, which argues(cid:13) that the lead chromate used in pigments is not as(cid:13) carcinogenic as other hexavalent chromium compounds.(cid:13) The Hopkins study casts no light on this issue because its(cid:13) test population did not work in the pigment industry, but(cid:13) even without better data than that which existed in Oil(cid:13) Workers in 1997, we find this uncertainty insufficient to(cid:13) delay rulemaking further. Even if the chromate in pigments(cid:13) is not carcinogenic, an argument that, tellingly, OSHA itself(cid:13) does not offer, requiring concrete findings on this(cid:13) distinction would effectively hold hostage the thousands of(cid:13) workers who are exposed to non-pigment hexavalent(cid:13) chromium. We will not sanction that result when,"even(cid:13) though OSHA acknowledges that this issue was flagged in(cid:13) the prior litigation over four years ago, OSHA does not(cid:13) 21(cid:13) claim to have done anything to resolve it." [Public Citizen(cid:13) Reply Br. at 24.]6(cid:13) Finally, while we are sympathetic to OSHA’s claim that a(cid:13) thorough feasibility analysis is both highly important and(cid:13) quite difficult, we cannot allow an imperfect analysis to(cid:13) justify indefinite delay. OSHA first announced a rulemaking(cid:13) nine years ago, and by its own account it has been(cid:13) examining the issue through NIOSH for at least four years.(cid:13) OSHA does not explain why this particular feasibility(cid:13) determination requires an extreme length of time, and it(cid:13) does not offer even a projection of how much time it might(cid:13) ultimately require. In such a situation, our traditional(cid:13) agency deference begins to resemble judicial abdication,(cid:13) and we conclude that scientific uncertainties and technical(cid:13) complexities, while no doubt considerable, can no longer(cid:13) justify delay. Judges on this court are not paid to decide(cid:13) the easy cases, and neither is OSHA. Difficult challenges go(cid:13) with the territory, and courts and agencies regularly(cid:13) surmount them. The notice-and-comment process should(cid:13) itself provide a fertile forum for gathering information on(cid:13) feasibility.(cid:13) C. Do Competing Priorities Justify OSHA’s Delay?(cid:13) Although OSHA insists that since Oil Workers it has(cid:13) continued to work on health-risk and feasibility issues(cid:13) relating to an eventual hexavalent chromium rulemaking, it(cid:13) admits that the project has not been a priority. In Oil(cid:13) Workers, of course, we noted "the quintessential discretion(cid:13) of the Secretary of Labor to allocate OSHA’s resources and(cid:13) set its priorities," 145 F.3d at 123, and OSHA contends that(cid:13) it simply exercised its discretion to concentrate its(cid:13) resources elsewhere. For example, in early 1997, it(cid:13) promulgated a final standard regulating occupational(cid:13) exposure to methylene chloride, a widely-used chemical it(cid:13) found to be carcinogenic. See 62 Fed. Reg. 1494 (Jan. 10,(cid:13) 1997). Shortly thereafter, in early 1998, it issued a final(cid:13) rule on respirators, see 63 Fed. Reg. 1152 (Jan. 8, 1998),(cid:13) and later that year it issued a final rule requiring adequate(cid:13) training for operators of powered industrial trucks. See 63(cid:13) _________________________________________________________________(cid:13) 6. Presumably, the difference in pigments can be addressed in the(cid:13) rulemaking itself.(cid:13) 22(cid:13) Fed. Reg. 66238 (Dec. 1, 1998). During that period, OSHA(cid:13) also completed a revision to its safety standards for(cid:13) longshoring and marine terminals. See 62 Fed. Reg. 40142(cid:13) (July 25, 1997).(cid:13) In 1999 and 2000, OSHA submits that it "focused most(cid:13) of its rulemaking resources on issuing an ergonomics(cid:13) standard before the end of the former Administration’s(cid:13) term." [OSHA Br. at 10.] Because the Clinton(cid:13) Administration placed such great emphasis on quickly(cid:13) finalizing those standards, the process was remarkably(cid:13) compressed; OSHA issued a proposed rule on November 23,(cid:13) 1999, and a final rule less than a year later, on November(cid:13) 14, 2000, "a timetable that required tremendous agency(cid:13) resources." [Id.] It explains that in addition to the(cid:13) ergonomics standard, the former Administration gave high(cid:13) priority to completing a steel erection standard, see 66 Fed.(cid:13) Reg. 5196 (Jan. 18, 2001), and a recordkeeping rule(cid:13) designed to improve the quality of information about the(cid:13) causes of occupational injuries and illnesses. See 66 Fed.(cid:13) Reg. 5916 (Jan. 19, 2001).(cid:13) OSHA represents that the delays became worse when the(cid:13) Bush administration took office, for it instructed the(cid:13) agencies that any new regulatory actions must be reviewed(cid:13) and approved by a department or agency head appointed(cid:13) after January 20, 2001. See Andrew H. Card, Jr.,(cid:13) Memorandum for the Heads and Acting Heads of Executive(cid:13) Departments and Agencies, (Jan. 20, 2001) available at(cid:13) http://www.whitehouse.gov/omb/inforeg/regreview_(cid:13) plan.pdf. As OSHA was not headed by a presidential(cid:13) nominee until August 2001, it alleges that "it could not(cid:13) begin in earnest to set its new regulatory priorities" until(cid:13) that time, [OSHA Br. at 14], and that even then, unforeseen(cid:13) incidents such as the September 11 attacks and anthrax(cid:13) mailings demanded that it "immediately divert[ ] significant(cid:13) resources to help ensure that the rescue and cleanup(cid:13) efforts did not result in further loss of life."[Id. at 15(cid:13) (citation omitted).](cid:13) OSHA lastly represents that, while these competing(cid:13) priorities have admittedly delayed the hexavalent chromium(cid:13) rulemaking, it is now pressing forward on that project. It(cid:13) published a request for information ("RFI") in the Federal(cid:13) 23(cid:13) Register in August 2002 posing specific questions that(cid:13) would be relevant to a rulemaking and inviting the public(cid:13) to submit any other evidence it feels might be helpful to(cid:13) OSHA. Following the RFI, it pledges that it will"evaluate all(cid:13) of the information available on Cr VI . . . and decide how to(cid:13) proceed." [Id. at 16.](cid:13) We do not lightly discount these admittedly significant(cid:13) competing priorities, especially those relating to the events(cid:13) of September 11, but when we view the rulemaking’s(cid:13) progress over the past nine years, we reach the ineluctable(cid:13) conclusion that hexavalent chromium has progressively(cid:13) fallen by the wayside. This is unacceptable, for as the D.C.(cid:13) Circuit stated, "[w]here the Secretary deems a problem(cid:13) significant enough to warrant initiation of the standard(cid:13) setting process, the Act requires that he have a plan to(cid:13) shepherd through the development of the standard-- that(cid:13) he take pains, regardless of the press of other priorities, to(cid:13) ensure that the standard is not inadvertently lost in the(cid:13) process." National Congress of Hispanic American Citizens v.(cid:13) Marshall, 626 F.2d 882, 890-91 (D.C. Cir. 1979).(cid:13) OSHA chose in 1993 to begin the rulemaking process,(cid:13) announcing its "agree[ment] that there is clear evidence(cid:13) that exposure to Cr VI at the current PEL . . . can result in(cid:13) an excess risk of lung cancer," and its "anticipation that(cid:13) Notice of Proposed Rulemaking [would] be published in the(cid:13) Federal Register not later than March 1995." (Lurie Dec.(cid:13) P9.) However, 1995 came and went without any sign of(cid:13) formal action, only for OSHA in 1996 again to declare that(cid:13) "[t]here appears to be no dispute that the current PEL is too(cid:13) high" and "must be greatly reduced." (Id.) In fact, in 1997(cid:13) OSHA declared to this Court its intention to promulgate a(cid:13) proposed rule by September 1999. Oil Workers, 145 F.3d at(cid:13) 123. That deadline, like the others, passed without action.(cid:13) Now, nine years after the rulemaking process began, we(cid:13) find ourselves without even a hint as to when OSHA might(cid:13) issue a proposed rule, much less a final rule. Indeed, a(cid:13) reasonable person would likely conclude that we are further(cid:13) from a rule today than we were five years ago, a notion that(cid:13) would certainly have alarmed the Oil Workers panel. We(cid:13) find apropos the D.C. Circuit’s words in Brock :(cid:13) 24(cid:13) We understand that technical questions of health(cid:13) regulation are not easily untangled. We understand(cid:13) that an agency’s limited resources may make(cid:13) impossible the rapid development of regulation on(cid:13) several fronts at once. And we understand that the(cid:13) agency before us has far greater medical and public(cid:13) health knowledge than do the lawyers who comprise(cid:13) this tribunal. But we also understand, because we(cid:13) have seen it happen time and time again, that action(cid:13) Congress has ordered for the protection of public(cid:13) health all too easily becomes hostage to bureaucratic(cid:13) recalcitrance, factional infighting, and special interest(cid:13) politics. At some point, we must lean forward from the(cid:13) bench to let an agency know, in no uncertain terms, that(cid:13) enough is enough.(cid:13) Brock, 823 F.2d at 627 (emphasis added).(cid:13) We conclude that now is such a time. While competing(cid:13) policy priorities might explain slow progress, they cannot(cid:13) justify indefinite delay and recalcitrance in the face of an(cid:13) admittedly grave risk to public health. Although the agency(cid:13) has commenced a rulemaking proceeding, we will(cid:13) nonetheless grant the petition to review the inaction of the(cid:13) United States Department of Labor as a predicate for our(cid:13) necessary discussion of the remedy.(cid:13) D. What is the Proper Remedy?(cid:13) Public Citizen requests that we direct OSHA to issue a(cid:13) proposed rule within 90 days, and to submit a schedule for(cid:13) finalizing the rule within 12 months thereafter.[Public(cid:13) Citizen Br. at 53.] Neither OSHA’s brief nor its recent(cid:13) announcement contains a proposed timetable, but it insists(cid:13) that Public Citizen’s proposed pace of rulemaking"is(cid:13) unrealistic in light of the procedural, consultative, and(cid:13) analytical duties that constrain OSHA rulemaking and the(cid:13) historical time frames required for OSHA to develop a toxic(cid:13) chemical standard." [OSHA Br. at 42.] For example, the(cid:13) Regulatory Flexibility Act, 5 U.S.C. SS 601-12, requires it to(cid:13) prepare a regulatory flexibility analysis if the rule will have(cid:13) a "significant economic impact upon a substantial number(cid:13) of small entities," a mandate this rulemaking is sure to(cid:13) trigger. Also, the Small Business Regulatory Enforcement(cid:13) 25(cid:13) Fairness Act, 5 U.S.C. S 609(b), requires it to convene a(cid:13) review panel to address the rule’s potential impacts on(cid:13) small entities. Finally, Executive Order 12866 requires that(cid:13) OSHA submit its proposal, including a detailed economic(cid:13) analysis, to the Office of Management and Budget, which is(cid:13) to review it within 90 days.(cid:13) While we are certain that the time for action has arrived,(cid:13) we are cognizant of our lack of expertise in setting(cid:13) permissible exposure limits, and we recognize the damage(cid:13) that an ill-considered limit might cause. At oral argument,(cid:13) we presented the parties with a somewhat novel possibility:(cid:13) that they would submit to a course of mediation, conducted(cid:13) by a senior judge of this Court, in which they might work(cid:13) together toward a realistic timetable that we would then(cid:13) enforce. Both sides stated their willingness to engage in this(cid:13) process, and we think it the most promising way to develop(cid:13) a reasonable and workable schedule. We are, however,(cid:13) highly aware that this presents yet another opportunity for(cid:13) potentially indefinite bargaining and delay. We will therefore(cid:13) submit the matter to mediation for a period not to exceed(cid:13) sixty days, after which time, if the parties have not reached(cid:13) an accord, the panel will promulgate a schedule it deems(cid:13) appropriate. We are pleased that our distinguished(cid:13) colleague, Judge Walter K. Stapleton, has agreed to(cid:13) undertake the mediation.(cid:13) III. Conclusion(cid:13) For the foregoing reasons, we hold that OSHA’s delay in(cid:13) promulgating a lower permissible exposure limit for(cid:13) hexavalent chromium has exceeded the bounds of(cid:13) reasonableness. We therefore grant Public Citizen’s petition(cid:13) to compel OSHA to proceed expeditiously with its(cid:13) hexavalent chromium rulemaking. Deferring our specific(cid:13) remedial order, we direct that the parties appear before(cid:13) Judge Walter K. Stapleton for mediation for a period not to(cid:13) exceed sixty days, following which, if the parties have not(cid:13) agreed on a mutually satisfactory timetable, we will order(cid:13) one of our own.(cid:13) 26(cid:13) A True Copy:(cid:13) Teste:(cid:13) Clerk of the United States Court of Appeals(cid:13) for the Third Circuit(cid:13) 27