But Nothing Would Have Happened Without Public Citizen, PACE Lawsuit
October 4, 2004
The Occupational Safety and Health Administration (OSHA) today published in the Federal Register three proposed rules designed to reduce worker exposure to hexavalent chromium, the carcinogenic chemical featured in the film Erin Brockovich. The proposed new Permissible Exposure Limit (PEL) is 50 times lower than the existing standard, but is still four times higher than requested in 1993 in a petition by Public Citizen. OSHA’s years of delay in tightening its standard led to a lawsuit by Public Citizen and the Paper, Allied-Industrial, Chemical and Energy Workers International Union (PACE), which resulted in a court order requiring OSHA to move forward with a new rule.
“Hundreds of thousands of workers have been exposed to inordinately high levels of hexavalent chromium while the agency continued on its path of reckless inaction,” said Peter Lurie, deputy director of Public Citizen’s Health Research Group. “Even the new proposal will not adequately protect American workers from lung cancer and the other health risks of this toxic chemical.”
OSHA has estimated that approximately 1 million workers are exposed to hexavalent chromium, which is used in chrome plating, stainless steel welding and the production of chromate pigments and dyes.
In 1994, OSHA acknowledged that hexavalent chromium causes lung cancer and promised to commence rulemaking to reduce exposure in 1995. The agency didn’t keep that promise, so Public Citizen and PACE sued OSHA in the U.S. Court of Appeals for the Third Circuit in Philadelphia in 1997 but lost because the agency promised to issue a proposed rule by 1999.
t didn’t, so the two organizations sued again in 2002, seeking to compel the agency to act. In December 2002, the court, decrying OSHA’s “indefinite delay and recalcitrance in the face of an admittedly grave risk to public health,” held that “OSHA’s delay in promulgating a lower permissible exposure limit for hexavalent chromium has exceeded the bounds of reasonableness.” The court set a schedule for OSHA to come up with a new standard, and today’s proposed rules are the result.
The agency is proposing three rules, one for general industry, one for construction and one for shipyards. All three would lower the PEL from 52 micrograms per cubic meter of chromium (100 micrograms per cubic meter of chromic acid) to 1 microgram per cubic meter of chromium (2 micrograms per cubic meter of chromic acid), whereas Public Citizen’s 1993 petition sought a PEL of .5 micrograms per cubic meter of chromic acid. OSHA’s proposal is thus four times weaker than the PEL sought by Public Citizen.
Moreover, the agency would require exposure monitoring only in its proposed “general industry” standard for hexavalent chromium, but not in its shipyard or construction standards. Engineering and work practice controls (as opposed to the less-desirable approach, personal protective equipment) would be required for all three industries if the PEL were exceeded for more than 30 days a year, but since exposure monitoring would not be required in shipyards or construction, no one would know if this threshold were met. Personal protective equipment would be required in most cases if the PEL were exceeded at all in the three industries, but, again, exposure would not be measured in two of them.
“This is OSHA’s equivalent of a ‘don’t ask, don’t tell’ policy,” Lurie said. “It seems the agency would rather not know about exposures than have to compel a recalcitrant industry to take action to protect its workers.”
The agency also has succumbed to the entreaties of industry to exempt Portland cement (a widely used type of cement) from regulation entirely, even though skin exposures to hexavalent chromium, which are likely to result from handling cement, have been clearly shown to cause skin irritation.
Whatever its inadequacies, the new standard for hexavalent chromium, which by court order must be complete by January 2006, would be the first improvement in worker protection against a specific industrial chemical that OSHA has proposed in more than a decade, even though the agency acknowledged in the early 1990s that dozens of its standards were out of date.
“These proposed rules would neverhave seen the light of day if we hadn’t sued OSHA,” said Scott Nelson, an attorney with Public Citizen, which will file comments on the proposed rules. “Now the agency’s job is to modify its proposal to protect workers more comprehensively.”