International Union, United Automobile, Aerospace & Agricultural Implement Workers… v. Elaine Chao, Secretary of Labor; Occupational Safety and Health Administration

1
PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No. 03-4146
INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE &
AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, UAW;
UNITED STEELWORKERS OF
AMERICA,
Petitioners
v.
ELAINE CHAO, SECRETARY OF
LABOR; OCCUPATIONAL SAFETY
AND HEALTH ADMINISTRATION,
Respondents
PETITION FOR REVIEW OF AN
ORDER OF THE
SECRETARY OF LABOR
Argued: January 9, 2004
Before: BARRY, SMITH, Circuit
Judges, and POLLAK,* District Judge
(Opinion Filed: March 22, 2004)
Randy S. Rabinowitz, Esq. (Argued)
5512 Carolina Place, N.W.
Washington, DC 20016
-AND-
Daniel Sherrick, Esq.
Catherine Traffton, Esq.
International Union, UAW
8000 East Jefferson
Detroit, Michigan 48214
-AND-
Paul Whitehead, Esq.
David Goldman, Esq.
United Steelworkers of America
5 Gateway Center
Pittsburgh, PA 15222
Attorneys for Petitioners
Howard M. Radzely, Esq.
Solicitor of Labor
Joseph M. Woodward, Esq.
Associate Solicitor for Occupational
Safety and Health
* The Honorable Louis H. Pollak,
(continued...)
*(...continued)
District Judge, United States District
Court for the Eastern District of
Pennsylvania, sitting by designation.

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Ann Rosenthal, Esq. (Argued)
Bruce Justh, Esq.
Charles F. James, Esq.
Joanna Hull, Esq.
United States Department of Labor
Office of the Solicitor
200 Constitution Avenue, N.W.
Washington, DC 20210
Attorneys for Respondents
Douglas R. Cox, Esq.
Gibson, Dunn & Crutcher
1050 Connecticut Avenue, N.W.
9th Floor
Washington, D.C. 20036
Attorney for Amicus Chamber of
Commerce US and Natl Assn Mfg
Jeffrey L. Leiter, Esq.
6718 Whittier Avenue
Suite 200
McLean, VA 22101
Attorney for Amicus Precision
Precision Machine, National Tooling
and Ind Lubricant Mfg
OPINION OF THE COURT
BARRY, Circuit Judge
On December 9, 1993, the
International Union of United Automobile,
Aerospace & Agricultural Implement
Workers of America (“UAW”) petitioned
the Occupational Safety and Health
Administration (“OSHA”) to take
“immediate action to protect workers from
the health effects of occupational exposure
to machining fluids[.]” UAW urged
OSHA to promulgate a rule that would
establish a standard for occupational
exposure to machining, or metalworking,
fluids (“MWFs”). OSHA did not formally
respond to UAW’s petition for rulemaking
until more than a decade later when, by
letter dated December 16, 2003, John
Henshaw, Assistant Secretary of Labor for
Occupational Safety and Health, denied
UAW’s petition.
The December 16th response was
submitted together with a brief to this
Court, for on October 21, 2003,
understandably impatient with the delay,
UAW, now joined by the United
Steelworkers of America, petitioned this
Court, pursuant to section 6(f) of the
Occupational Safety & Health Act of
1970, 29 U.S.C. § 655(f) (OSH Act), to
review what they described as the
“unreasonable delay” of respondents
OSHA and the Secretary of Labor in
issuing the requested standard under
section 6(b)(5) of the OSH Act. The
Administrative Procedure Act (“APA”),
together with the OSH Act, permit a
petition to the federal courts of appeals to
review federal agency action (or inaction).
5 U.S.C. § 706; 29 U.S.C. § 655(f). We,
thus, have jurisdiction over the petition
before us which the parties, and the Court,
agree is appropriately recharacterized as a
petition to review final agency action. See
In re International Chemical Workers

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Union, 830 F.2d 369, 370 (D.C. Cir. 1987)
(when a petition to compel rulemaking was
pending and the agency denie d
rulemaking, it was appropriate to treat the
pending petition as a petition for review of
the denial).
For the reasons that follow, we find
that the Secretary’s denial of the request
for rulemaking proceedings on MWFs was
neither arbitrary nor capricious. We,
therefore, will deny the petition for review.
I. Background
Metalworking fluids are used in a
wide variety of industries as coolants and
lubricants for metal machining, grinding,
cutting, forming, tooling, and treating in
manufacturing operations. Approximately
1.2 million workers (including, among
others, machinists, mechanics, and
metalworkers), who are employed at
approximately 185,000 establishments, are
exposed to MWFs by means of skin
contact or by breathing or otherwise
ingesting particles from mists or aerosols.
There is little doubt, and it is not
disputed here, that exposure to MWFs can
have debilitating health effects. The
nature and prevalence of health effects
from MWF exposure is, however, hotly
disputed. Asthma, hypersensitivity
pneumonitis (“HP”), other respiratory
diseases, and cancer are among the effects
or potential effects that UAW claims result
from MWF exposure. While there is little
debate about the link between MWF
exposure and respiratory disorders and
dermatitis (again, the debate is over the
severity and prevalence), the evidence
supporting a connection to cancer is
equivocal.
Initially, OSHA responded in
December 1995, albeit informally, to
UAW’s 1993 petition when it designated
MWFs as a regulatory priority. In 1997,
OSHA empaneled a Metalworking Fluids
S t a n d a r d s A d v i s o r y C o m m i t t e e
(“MWFSAC” or “Committee”). The
Committee of 15 members had five labor
r e p r e s e n t a t i v e s , f i v e i n d u s t r y
repres enta t i v e s , a n d f i v e p u b lic
representatives. On July 15, 1999, the
Committee issued its final report and
recommendations.
The Committee unanimously
recommended that OSHA take action to
limit worker exposure to MWFs. The
recommendation was based upon the
“demonstrated health effects” of exposure
to MWFs: dermatitis, asthma, HP, and
other respiratory disorders. The
Committee members, however, did not
agree on the best way to limit worker
exposure to MWFs. A majority of the
Committee recommended that OSHA
promulgate a rule, while a minority
thought that non-mandatory guidelines and
educational programs would better address
the problem. A majority of the Committee
also concluded that exposure to old
formulations of MWFs caused skin cancer
and cancer at other sites. Only a minority
of the Committee, however, concluded that
there was adequate evidence to link
exposure of current formulations of MWFs

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to skin cancer or cancer at other sites. In
sum, the Committee unanimously
recognized a link between MW F exposure
and non -malig nant illnesses (i.e.,
dermatitis, respiratory disorders, HP, and
asthma) and, based upon this recognition,
a majority recommended promulgation of
a rule. The Committee’s recommended
course of action was not premised on a
connection between MWFs and cancer.
Beginning in 1999, and seemingly
in response to the Committee’s
recommendation, OSHA began to include
MWFs in its published Regulatory
Agenda. MWFs were identified as a
“Long Term Action” item, meaning that
the issuance of a standard was anticipated
in a year’s time. By 2001, however, no
standard had been issued, and OSHA
removed MW Fs from its Regulatory
Agenda, publishing, instead, a MWF Best
Practices Guide. The Guide is non-
binding and unenforceable.
In October 2003, UAW filed the
petition for review now before us,
asserting that the Secretary of Labor and
OSHA had failed, by virtue of an
unreasonable delay, to act, as required by
29 U.S.C. § 655(b)(5), “to assure that no
employee suffer material impairment of
health[.]” In the Henshaw letter of
December 16, 2003, which accompanied
its brief to this Court, OSHA formally –
and finally – denied UAW’s 1993 petition
requesting action. In the letter, OSHA
gave two main reasons for deciding not to
promulgate a rule for MWFs “now or in
the foreseeable future.” First, OSHA
concluded, and we summarize broadly,
that regulating MWFs was not appropriate
because the science regarding MWF
exposure neither adequately illuminated an
effective way to determine an appropriate
permissible exposure limit, nor supported
the conclusion that MWF exposure causes
cancer. Second, OSHA identified three
agency priorities to regulate “toxic
substances that pose more serious health
risks than do MWFs,” and asserted that
agency resources could not accommodate
the “enormous resource commitment” that
a rulemaking on MWFs would require.
OSHA found, however, that various non-
regulatory measures will enable exposures
to MWF hazards to be controlled
effectively, and that those measures were
in large part already underway.
II. Discussion
In considering the petition for
review, we (1) examine the relevant
statutory framework, (2) assess whether
OSHA had a statutory duty to regulate
MWFs, and (3) evaluate whether OSHA’s
refusal to regulate MW Fs was arbitrary
and capricious.
A. Statutory Background
There are two statutes relevant to
our review: the Occupational Safety and
Health Act and the Administrative
Procedure Act.
(1) The OSH Act
Congress enacted the OSH Act, “to

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assure so far as possible every working
man and woman in the Nation safe and
healthful working conditions[.]” 29
U.S.C. § 651(b). “The Act authorizes the
Secretary of Labor to establish, after notice
and opportunity to comment, mandatory
nationwide standards governing health and
safety in the workplace.” American
Textile Mfrs. Institute, Inc. v. Donovan,
452 U.S. 490, 493 (1981) (citing 29 U.S.C.
§§ 655(a), (b)). When the Secretary
decides to promulgate a rule “dealing with
toxic substances or harmful physical
agents,” the rule must “adequately
assure[], to the extent feasible, on the basis
of the best available evidence, that no
employee will suffer material impairment
of health or functional capacity” even after
a lifetime of exposure. 29 U.S.C. §§
655(b)(5). The agency’s priorities are
judicially reviewable. Public Citizen
Health Research Group v. Chao, 314 F.3d
143, 152 (3d Cir. 2002). A reviewing
court is instructed, however, that
“determinations of the Secretary shall be
conclusive if supported by substantial
evidence in the record considered as a
whole.” 29 U.S.C. § 655(f). And while
the Secretary is accorded a broad measure
of discretion in setting the agency agenda,
the Secretary does not have absolute
discretion. “In determining the priority for
establishing standards . . . the Secretary
shall give due regard to the urgency of the
need for mandatory safety and health
standards for particular industries, trades,
crafts, occupations, businesses, workplaces
or work environments.” Id. at § 655(g).
The Act also requires that the Secretary
“give due regard to the recommendations
of the Secretary of Health, Education, and
Welfare[.]” Id.
Finally, under the Act, the Secretary
may appoint an advisory committee to
assist in the development of a rule. 29
U.S.C. § 655(b)(1). “Where an advisory
committee is appointed and the Secretary
determines that a rule should be issued, he
shall publish the proposed rule within sixty
days after the submission of the advisory
committee’s recommendations[.]” Id. at §
655(b)(2).
(2) The APA
The Administrative Procedure Act
directs an agency “to conclude [within a
reasonable time] a matter presented to it.”
5 U.S.C. § 555(b). It also empowers
reviewing courts to compel agency action
“unlawfully withheld or unreasonably
delayed[.]” Id. at § 706(1). Reviewing
courts are to “hold unlawful and set aside
agency action, findings, and conclusions
found to be . . . arbitrary, capricious, an
abuse of discretion, or otherwise not in
accordance with law[.]” Id. at § 706(2);
Borough of Columbia v. Surface Transp.
Bd., 342 F.3d 222, 229 (3d Cir. 2003).
B. Does OSHA Have a Duty to
Regulate MWFs?
UAW contends that the “OSH Act
demands either that the Secretary publish
a proposed rule within 60 days after
receiving an advis ory com mitte e
recom mendation that reg ulation is
warranted or decide no rule should be

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issued.” Petitioners’ Br. at 21 (citing 29
U.S.C. § 655(b)(2)). Because a majority
o f t h e M W F A C r e c o m m e n d e d
promulgation of a rule in July 1999,
certainly more than 60 days prior to the
denial of rulemaking in December 2003,
UAW urges us to require the Secretary to
promulgate a rule to regulate MW Fs.
Whether and when there is a duty to act
under the OSH Act is a question of law.
Review is de novo. Chao v. Rothermel,
327 F.3d 223, 225 (3d Cir. 2003).
UAW points to 29 U.S.C. §
655(b)(2), which states that “[w]here an
advisory committee is appointed and the
Secretary determines that a rule should be
issued, [s]he shall publish the proposed
rule within sixty days after the submission
o f t h e a d v i s o r y c o m m i t t e e ’ s
recommendations[.]” 29 U.S.C. §
655(b)(2). UAW contends that the sixty
day requirement is mandatory. We
disagree.
First, the very language to which
UAW points acknowledges the discretion
of the Secretary to pursue regulatory action
if she, in the exercise of that discretion,
“determines that a rule should be issued.”
Id. There is nothing in the statute that
requires the Secretary to cede discretionary
authority to the advisory committee. The
statute is silent as to the duties of the
Secretary in the event, as here, that she
determines a rule should not be
promulgated, or if she is uncertain as to
whether a rule should be promulgated.
There is no reason to construe the statute
to limit the Secretary’s discretion in this
area.
Second, the language and structure
of § 655, taken as a whole, confirm, rather
than restrict, the discretion of the Secretary
to set the regulatory agenda under the OSH
Act. See id. at § 655(g). The Secretary, by
appointing an advisory committee, is not
thereby stripped of discretion over whether
or not to promulgate a rule or bound to the
time constraints of § 655. The D.C.
Circuit has addressed this issue on a
number of occasions, and has each time
convincingly confirmed that in § 655, the
“statutory deadlines do not ‘circumscribe
the discretion of the’ Administration; that
its ‘failure to act within their limits’ is not,
in itself, an abuse of discretion; and that
the agency may rationally ‘delay
development of a standard at any stage as
priorities demand.’” Action on Smoking &
Health v. Dep’t of Labor, 100 F.3d 991,
993 (D.C. Cir. 1996) (quoting National
Congress of Hispanic Am. Citizens v.
Marshall, 626 F.2d 882, 888 (D.C. Cir.
1979) and citing National Congress of
Hispanic Am. Citizens v. Usery, 554 F.2d
1196, 1199-1200 (D.C. Cir. 1977) (“El
Congreso”). See El Congreso, 554 F.2d at
1198-1200 (discussing § 655(b) and its
legislative history and finding an “implicit
acknowledgment that traditional agency
discretion to alter priorities and defer
action due to legitimate statutory
considerations was preserved”).
Finally, looking beyond the specific
provision that UAW misreads as creating
a duty to regulate to the larger mandate of
the OSH Act itself, it is obvious that

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OSHA cannot lightly be required to initiate
a rulemaking: “There are likely thousands
of substances that may pose a significant
risk of harm to workers. OSHA could not
possibly be required to undertake
r u l e m a k i n g o n a l l o f t h e m
simultaneously.” Respondents’ Br. at 36-
37. See also South Hills Health System v.
Bowen, 864 F.2d 1084, 1094 (3d Cir.
1988) (“Normally . . . an agency may
exercise ‘a generous measure of discretion
respecting the launching of rulemaking
proceedings.’”) (quoting Geller v. FCC,
610 F.2d 973, 979 (D.C. Cir. 1979)).
Of course, once OSHA undertakes
to promulgate a standard, it must reduce
risk to the extent feasible, 29 U.S.C. §
655(b)(5), and its actions must be
supported by substantial evidence. Id. at §
655(f). Here, however, OSHA never
decided to regulate MWFs, much less
formally initiated rulemaking proceedings
with the publication of a proposed rule.
C. Was OSHA’s Action Arbitrary
and Capricious?
We agree with the parties that
OSHA’s decision not to regulate MWFs
should be upheld absent a determination
that the decision was “arbitrary” or
“capricious.” 5 U.S.C. § 706(2)(A). The
arbitrary and capricious standard applies to
most agencies’ decisions, including denials
of petitions to institute rulemaking
proceedings. See, e.g., American Horse
Protection Ass’n, Inc. v. Lyng, 812 F.2d 1,
4 (D.C. Cir. 1987). Respondents also note,
correctly in our view, that where agency
action is challenged as unreasonably
delayed or unlawfully withheld, agencies
are scrutinized at the most deferential end
of the arbitrary and capricious spectrum.
See, e.g., American Horse Protection
Ass’n, Inc., 812 F.2d at 4-5 (“Review
under the ‘arbitrary and capricious’ tag
line . . . encompasses a range of levels of
deference to the agency, . . . [and] an
agency’s refusal to institute rulemaking
proceedings is at the high end of the
range[.]”) (citations omitted).
As we have recently noted,
decisions “‘that might be altogether
reasonable in the sphere of economic
regulation are less tolerable when human
lives are at stake.’” Public Citizen v.
Chao, 314 F.3d at 153 (quoting Public
Citizen Health Research Group v. Auchter,
702 F.2d 1150, 1154 (D.C. Cir. 1983)).1
1The “human lives . . . at stake”
played a critical role in Public Citizen.
A risk assessment of hexavalent
chromium had concluded that exposure
at the level then current over a 45 year
working lifetime could be expected to
result in between 88 and 342 excess
cancer deaths per thousand workers. 314
F.3d at 147. In recognition of this
“grave risk to public health,” OSHA
made hexavalent chromium a high
priority and announced it was beginning
a rulemaking. Id. at 145. More than
nine years later, however, “nothing ha[d]
happened” and OSHA admitted that it
might not promulgate a rule for another
(continued...)

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Nonetheless, an order directing the
Secretary to institute rulemaking
proceedings is appropriate only in rare and
compelling circumstances. American
Horse Protection Ass’n, Inc., 812 F.2d at
7. This is not one of those circumstances.
The Henshaw letter of December 16
denying UAW’s petition for a rulemaking
sets out in detail the reasons why OSHA
found it inappropriate to regulate MWFs.
Importantly, OSHA weighed the scientific
evidence of health hazards posed by
exposure to MWFs against its other
regulatory priorities. Obviously, OSHA
has limited resources, and it named three
priorities more pressing than MWFs:
hexavalent chromium, crystalline silica,
and beryllium. Each of these toxic
substances had been identified by OSHA
as connected by strong evidence to fatal
and disabling diseases. In contrast, the
evidence linking cancer to MWF exposure
is equivocal. Even assuming that MWF
exposure causes dermatitis, asthma, HP,
and other respiratory diseases (which the
scientific evidence supports), these
diseases, as OSHA recognizes, are rarely
fatal. This is not to say that the health
effects of exposure to MWFs are
insignificant, but only that OSHA
justifiably prioritized the regulation of
more severely toxic substances.
OSHA also identified the reasons
why regulating M WFs will require an
“enormous” allocation of resources. First,
MWFs come in a variety of types,
numerous combinations, and many forms.
Exposure to one likely has different
hazardous effects than to another. Sorting
all of this out would require considerable
effort and expense. Second, none of the
scientific studies undertaken by the
Committee quantitatively assesses the risks
of MWFs. Thus, a significant amount of
additional scientific work would have to
be conducted. There is little doubt that a
rulemaking proceeding that dealt
comprehensively with MWFs would be, as
the Henshaw letter explains, a lengthy and
complex process.
UAW points to a number of studies,
all showing the detrimental health effects
of MWF exposure. No doubt, in a perfect
world, no worker would suffer exposure to
MWFs, and we are certainly sympathetic
to the more than 1 million workers
exposed to MWFs. So, too, in a perfect
world, we would not have had the
apparently unnecessary and surely
1(...continued)
ten or twenty years, “if at all.” Id. at
145, 154. Because of that extraordinary
combination of circumstances, we were
about to take the extraordinary step of
compelling OSHA to act when OSHA
finally instituted the long-promised
rulemaking process. Separate and apart
from other differences between that case
and this, here OSHA, although in
November 1999 having placed MWF’s
on its Regulatory Agenda under the
heading “Long-Term Action,” never
found need for a rulemaking, much less
announced an intention to commence a
rulemaking proceeding.

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lamentable ten year delay between UAW’s
petition and OSHA’s formal response. But
in the real world, the Secretary has broad
discretion to set the regulatory agenda of
the agency, and the decision to direct
OSHA’s scant resources elsewhere was
neither arbitrary nor capricious.
III. CONCLUSION
“Distilled to its essence, [UAW’s]
petition . . . would have us intrude into
the quintessential discretion of the
Secretary of Labor to allocate OSHA’s
resources and set its priorities.” Oil,
Chem., & Atomic Workers Union v.
OSHA, 145 F.3d 120, 123 (3d Cir. 1998).
Certainly, at one time, OSHA made
MWFs a regulatory priority. This fact
alone, however, does not compel OSHA
to promulgate a rule. To say that it does,
as UAW would have us say, would be to
also say that any time an agency explores
a potential regulatory initiative, “once the
inexorable process is begun, it must
grind on and on to its statutory end even
though the Secretary has long before
decided to refuse to adopt it. This makes
an absurdity of the Act and a fool out of
Congress.” El Congreso, 554 F.2d at
1199. This is a step we are not prepared
to take. While the process here need not
and should not have been “inexorable,”
much less as “inexorable” as it turned out
to be, we trust that we will not again see
delays such as were seen here. That
having been said, it was not arbitrary and
capricious for the Secretary to refrain
from regulating MWFs. The petition for
review will be denied.

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Pollak, J., concurring:
I join the court’s opinion. I
would only add that what is at issue in
this case is a change in regulatory policy
coincident with a change in
administration. Counsel for respondents
said as much on oral argument: “The
metalworking fluids . . . were listed as a
high priority only following the priority-
setting process of a prior administration .
. . and those priorities are different than
the current ones.” There is nothing
obscure, and nothing suspect, about this
phenomenon. That’s one of the
important things that elections are about.
Whether OSHA’s current policy
priorities are wiser or less wise than
those previously pursued is not for a
court to determine.1 Our job is to
determine whether respondents’
selection of new priorities should be
deemed either “arbitrary” or
“capricious.” In making this
determination with respect to agency
declination to institute rulemaking, “as in
more typical reviews . . . we must
consider whether the agency’s decision
was ‘reasoned.’” American Horse
Protection Ass’n, Inc. v. Lyng, 812 F.2d
1, 5 (D.C. Cir. 1987); cf. Public Citizen
Health Research Group v. Chao, 314
F.3d 143, 151 (3d Cir. 2002) (“Our
polestar is reasonableness . . . .”). As the
court’s opinion persuasively establishes,
OSHA’s decision was clearly “reasoned”
and hence not “arbitrary” or
“capricious.”
1
A change in administration
brought about by the
people casting their votes
is a perfectly reasonable
basis for an executive
agency’s reappraisal of the
costs and benefits of its
programs and regulations.
As long as the agency
remains within the bounds
established by Congress, it
is entitled to assess
administrative records and
evaluate priorities in light
of the philosophy of the
administration.
(continued...)
1(...continued)
Motor Vehicle Mfrs. Ass’n of U.S., Inc.
v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 59 (1983) (Rehnquist, J.,
concurring in part and dissenting in
part).

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