## Facts

- OSHA adopted a 1971 permissible exposure limit (PEL) for hexavalent chromium based on a consensus standard.
- Hexavalent chromium was widely used in industry and classified as a carcinogen associated with serious worker health risks, including lung cancer.
- For decades, NIOSH recommended a substantially more stringent exposure limit than OSHA’s 1971 PEL.
- In 1993, Public Citizen petitioned OSHA to issue an emergency temporary standard or otherwise lower the PEL; OSHA declined emergency action but acknowledged “clear evidence” that the existing PEL could produce excess lung-cancer risk and announced a rulemaking expected to conclude by 1995.
- After that announcement, OSHA repeatedly postponed the rulemaking and missed all ten self-imposed deadlines over the ensuing years.
- OSHA cited reasons for delay including awaiting and then evaluating a major epidemiological study, administrative transition and regulatory review, and resource diversion after the September 11 attacks and anthrax incidents.
- Public Citizen petitioned for review under APA § 706(1), seeking an order compelling OSHA to proceed with rulemaking; OSHA suggested at argument that a final rule might not appear for “another decade or two.”

## Issues

1. Whether OSHA’s multi-year failure to proceed with rulemaking to revise the hexavalent chromium PEL, despite acknowledged serious health risks and repeated missed deadlines, was “unreasonably delayed” agency action subject to compulsion under APA § 706(1).
2. Whether OSHA’s asserted justifications (scientific uncertainty, administrative review, and competing emergency priorities) adequately excused the length and character of the delay.

## Decision

- The court granted the petition for review.
- The court held OSHA’s delay in regulating hexavalent chromium was unreasonable under APA § 706(1).
- The court ordered OSHA to proceed with rulemaking to revise the PEL under a timetable to be set and enforced by the court.
- The court distinguished a prior refusal to compel action because the additional years of inaction and the pattern of missed deadlines made the delay extreme and no longer within reasonable bounds.

## Legal Principles

- Under APA § 706(1), courts must compel agency action “unlawfully withheld or unreasonably delayed.”
- Unreasonable-delay analysis is context-dependent and considers the nature of the interests harmed by delay, including the health consequences of regulatory inaction.
- An agency’s own recognition of significant health risks and its repeated, unmet commitments to regulate weigh strongly toward finding delay unreasonable.
- Scientific uncertainty and competing agency priorities may justify some delay, but they do not justify an open-ended postponement where serious health hazards are acknowledged.
- Courts may impose and supervise a schedule for agency action when necessary to remedy unreasonable delay.

## Conclusion

The Third Circuit concluded that OSHA’s prolonged, patterned postponement of hexavalent chromium rulemaking—after conceding serious cancer risks and missing numerous self-set deadlines—constituted unreasonable delay under the APA, warranting a judicial order requiring prompt regulatory action on a court-controlled timetable.


Pub. Citizen Health Rsch. Grp. v. Chao, 314 F.3d 143 (3d Cir. 2002)