Public Citizen and the United Steelworkers challenged an OSHA rule setting a new standard for workplace exposure to the carcinogenic chemical hexavalent chromium. The rule was issued as a result of a previous lawsuit by Public Citizen and PACE International Union challenging OSHA’s unreasonable delay in updating the standard. Although the rulemaking improved the standard considerably, it unlawfully left workers exposed to substantial risks of lung cancer because OSHA failed to set a standard as low as its own rulemaking record indicated was necessary.
A number of industry groups also challenged the standard as too high, but most ultimately withdrew their challenges.
The cases were briefed and argued in the U.S. Court of Appeals for the Third Circuit. On February 23, 2009, the court issued its decision. See 557 F.3d 165. The court upheld the rule in most respects, finding that a lower standard would be infeasible for significant industrial operations affected by the rule and that OSHA was justified in setting a uniform standard that all industries affected could achieve, even though that standard left significant risks in place and many industries could achieve a more protective standard. The court did, however, rule in favor of our argument that one provision of the rule, which did not require employers to make monitoring results available to employees unless they showed a violation of the standard, had not been rationally explained by the agency.