This column originally appeared on page 26 in the September 2006 edition of Compliance Magazine. Copyright 2006, Douglas Publications, LLC. Used by permission. All rights reserved. For subscription information, go to www.compliancemag.com.
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By Peter Lurie and Scott Nelson
This much is clear: Without the courts, there would be no new hexavalent chromium standard today. It took two lawsuits by Public Citizen and what is now the United Steelworkers of America to finally get OSHA to act on what it acknowledged in 1994: Hexavalent chromium is a lung carcinogen and the agency’s permissible exposure limit (PEL) of 52 ug/m3 (micrograms per cubic meter of air) was too high to adequately protect workers.
Under a court order, OSHA proposed a PEL of 1 ug/m3 in 2004, a marked improvement over the PEL at that time. This was still considerably higher than the 0.25 ug/m3 PEL for which Public Citizen petitioned in 1993. In fact, OSHA’s risk assessment provides strong support for our recommended PEL. Only at the 0.25 ug/m3 level does the chance of lung cancer dip below the 1 in 1,000 workers excess lifetime risk identified as a yardstick for OSHA action in the Supreme Court’s 1980 Benzene decision. At a hearing on the proposed rule, the National Institute for Occupational Safety and Health went still further, proposing a PEL of 0.2 ug/m3.
But industry was not to be mollified. It mounted a series of overblown attacks on the standard, painting dire scenarios of workplaces closing and impending economic doom. Without even changing its risk assessment, OSHA caved in. The final rule, issued in February 2006, raised the PEL to 5 ug/m3. The agency itself estimates 10 to 45 lung cancer deaths per 1,000 workers over a working lifetime at this PEL, far in excess of what it has permitted in any previous standard.
To justify the PEL, OSHA has relied on claims primarily from the electroplating and stainless steel welding industries that the standard is not technologically feasible, a circumstance that would permit OSHA to deviate from the 1 per 1,000 lifetime risk delineated in the Benzene decision. Yet 88 percent of all workers are already compliant with the 5 ug/m3 PEL and only 13 percent of electroplaters and 25 percent of stainless steel welders currently exceed this level.
What OSHA is arguing, in effect, is that the PEL should be set at a level that can readily be met by nearly all workplaces, even if most workplaces can reduce their levels still further. At least, that’s what the agency is arguing now. Here’s what OSHA had to say in defending its 1992 cadmium standard:
OSHA does not believe that [its legal] obligation can be satisfied … by protecting all workers only to the extent that the most severe feasibility constraint on protecting any worker would allow. On the contrary, OSHA believes that if a minority of workers cannot be as effectively protected as the majority, that fact is not an adequate reason to forego protecting the majority to the extent feasible. The courts seem to agree.
We’ll soon see. Shortly after OSHA issued its final rule, we sued the agency again. Opening briefs are due in October.
Peter Lurie, M.D., M.P.H., is the Deputy Director of Public Citizen’s Health Research Group.
Scott Nelson is a Senior Attorney with the Public Citizen Litigation Group.