March 4, 2002
Public Citizen, PACE Sue to Protect Workers From Hexavalent Chromium
New Data Suggest Compliance With Requested Limits Is Feasible
WASHINGTON, D.C. -- Public Citizen and the Paper, Allied-Industrial, Chemical and Energy Workers International Union (PACE) today asked a court to order the Occupational Safety and Health Administration (OSHA) to issue a new, safer worker exposure limit for hexavalent chromium, a potent lung carcinogen. The groups asked the court to find that the agency has unreasonably delayed in responding to their requests that it lower the limit.
In a lawsuit filed in the United States Court of Appeals for the Third Circuit in Philadelphia, the groups asked the court to order OSHA to issue a proposed new permissible exposure limit (PEL) for hexavalent chromium within 90 days and to issue a final standard within a year of issuing the proposal.
OSHA estimates that approximately one million workers are exposed to hexavalent chromium, which is used in chrome plating, stainless steel welding and the production of chromate pigments and dyes. Every year, hundreds of workers will die prematurely of lung cancer because of that exposure. As many as 34 percent of workers could contract lung cancer if exposed for eight hours a day, for 45 years, to hexavalent chromium at OSHA's current exposure limit, according to a study conducted for OSHA in 1995. The substance became better-known when featured in a popular movie, "Erin Brockovich," about a woman's struggle to win compensation for residents exposed to groundwater contaminated with hexavalent chromium.
"OSHA has completely neglected the workers it is supposed to protect," said Dr. Peter Lurie, deputy director of Public Citizen's Health Research Group. "The agency acknowledged in 1994 that its PEL was inadequate and still it has done nothing."
In 1993, Public Citizen and PACE's predecessor union (the Oil, Chemical and Atomic Workers Union) filed a petition with OSHA requesting that the agency lower the PEL for hexavalent chromium to 0.5 micrograms per cubic meter (ug/m3) -- 200 times lower than the current PEL. In 1994, OSHA denied the petition, promising instead to commence rulemaking in 1995 to dramatically reduce the limit. It never did.
The petitioners sued OSHA in 1997 in the United States Court of Appeals for the Third Circuit in Philadelphia. The court ruled against the groups in 1998 in part because the agency promised to begin a regulatory proceeding in 1999. After multiple deferrals, the agency in December 2001 reduced the regulation of hexavalent chromium to the status of a "long-term action" and removed any date for predicted action.
"Every item that was an OSHA priority higher than hexavalent chromium has either been completed or shelved," said Scott Nelson, a lawyer with Public Citizen Litigation Group. "OSHA's current priorities are relatively trivial and require different personnel from those required for hexavalent chromium. The agency's pool of excuses has run dry. And the delays in this case are considerably in excess of others found unacceptable in similar health and safety cases. OSHA's downgrading of hexavalent chromium as a regulatory priority is part of a broader deregulatory effort at OSHA."
Added Dave Ortlieb, director of PACE's health and safety department, "Every day our members inhale a chemical that OSHA decided years ago causes lung cancer. The agency has put the concerns of the industry before the health of workers."
Public Citizen today also released the results of its analysis of 813 measurements of airborne hexavalent chromium taken by OSHA during agency inspections of workplaces conducted from 1990 to 2000. For measurements in which hexavalent chromium was detected, median measurements were 10 ug/m3, still 20 times higher than the PEL requested by Public Citizen and PACE. While 21 percent of measurements exceeded the OSHA PEL, 13 percent were lower than the requested PEL, suggesting that compliance with the lower PEL is possible.
"Every relevant scientific body has concluded that hexavalent chromium is a potent carcinogen," Lurie said. "But OSHA has failed to follow the research to its logical conclusion, imperiling the lives of thousands of Americans."