Federal Appeals Court Tells Government to Write Rule About Hexavalent Chromium; Order Is Culmination of Suit Brought by Public Citizen and PACE
WASHINGTON, D.C. – The U.S. Court of Appeals for the Third Circuit has ordered the U.S. Occupational Safety and Health Administration (OSHA) to take the steps necessary to protect workers from hexavalent chromium, a dangerous lung carcinogen. The order, issued late Wednesday, came in response to a lawsuit filed last year by Public Citizen and the Paper, Allied-Industrial, Chemical and Energy Workers International Union (PACE). The suit was designed to force the agency – which for years has dragged its feet on the matter – to act.
Under the order, OSHA must issue a proposed rule governing workplace exposure to hexavalent chromium no later than Oct. 4, 2004, and a final rule no later than Jan. 18, 2006.
OSHA has acknowledged for nearly a decade that its current standard permits workers to breathe in hexavalent chromium at levels that pose an unacceptable cancer risk. Previously, in response to a 1993 petition from Public Citizen and PACE, the agency had promised to issue a proposed rule in 1995. Nonetheless, the agency repeatedly postponed action to tighten the standard. In 1997, Public Citizen and PACE filed suit in the Third Circuit to compel strengthened regulation of the chemical, but lost because the agency said it would issue a proposed rule by 1999.
After three more years of agency inaction, Public Citizen and PACE filed suit last spring in the Third Circuit, in Philadelphia, alleging that the agency had violated the law by unreasonably delaying action on hexavalent chromium. On Dec. 24, 2002, the court issued an opinion finding OSHA’s delay “unreasonable.”
In that order, the court decried OSHA’s “indefinite delay and recalcitrance in the face of an admittedly grave risk to public health” and held that “OSHA’s delay in promulgating a lower permissible exposure limit for hexavalent chromium has exceeded the bounds of reasonableness.” The court ordered OSHA to “proceed expeditiously with its hexavalent chromium rulemaking.” The court directed the parties to engage in mediation for 60 days in an effort to agree upon a schedule.
In the mediation, OSHA took the position that it would need more than four years to arrive at a new final rule. Public Citizen countered with a schedule that would have yielded a final rule in two years. Senior Judge Walter Stapleton proposed that the parties agree on an approximately three-year schedule. Although OSHA objected, insisting that it be allowed another four years to take action, the court ordered the three-year schedule.
“We would have liked the agency to move even faster,” said Dr. Peter Lurie, deputy director of Public Citizen’s Health Research Group. “But the important point is that the agency has now been told that it has to act, and that the leisurely schedule it wanted won’t adequately protect workers’ health.”
Added Public Citizen attorney Scott Nelson, who argued the case, “It’s very unusual for a court to step in and order an agency to act by a specific date. The court’s action here is a reflection of the agency’s extreme delay in the face of a problem that even it has admitted for a decade is very serious. We hope this case will send a message that agencies can’t expect to get away with neglecting their missions indefinitely.”
Even with this order, the proposed rule on hexavalent chromium would be the first rule that OSHA has proposed for an industrial chemical in more than a decade.
The text of the Court’s order is available at https://www.citizen.org/sites/default/files/order_regarding_schedule.pdf.
Public Citizen is a national, nonprofit consumer advocacy organization based in Washington, D.C. For more information, please visit www.citizen.org.