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The fight for promulgation

January 1, 2009

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As OSHA’s first rule issued under the Bush administration, the Hexavalent Chromium standard for general industry, construction and shipyards did not come easily. In July 1993, Washington-based consumer advocacy group Public Citizen filed a petition for an emergency temporary standard to reduce hex chrome exposure limits. OSHA denied the emergency petition, and the group filed suit. As a result, the U.S. Court of Appeals for the Third Circuit in Philadelphia ordered OSHA to issue a final rule by Jan. 18, 2006, setting in motion the current rulemaking.

The agency originally proposed in 2004 a permissible exposure limit of 1 microgram of hex chrome per cubic meter of air as an eight-hour time-weighted average. This would have been a dramatic drop from the previous 52-microgram limit recommendation issued in 1943 by the American National Standards Institute, and would have fallen in line with current recommendations.

While promulgating the rule, OSHA increased the level of exposure to 5 micrograms – still more than a 90 percent drop from the original PEL of 52 micrograms. By reducing the PEL from its original level, the estimated number of cancers per 1,000 workers drops from 101-351 to 10-45. That 10-45 range, OSHA contended at the time, overlaps estimated risks from exposure to current PELs for benzene and cadmium. As many as 500,000 workers were exposed to hex chrome at the time the rule was promulgated.

Some groups complained the new PEL was too low; others said it was too high. “The final hexavalent chromium rule is a very weak health standard with a PEL five times what was originally proposed by the agency; a level of exposure which by OSHA’s own admission will leave workers at a significant risk of developing cancer,” according to the 2008 edition of “Death on the Job,” the AFL-CIO’s annual report on OSHA.

David Michaels is a research professor from George Wash-ington University. He stated during a Senate subcommittee hearing last year that NIOSH originally proposed a limit of 1 microgram in 1975, a time when the risk of cancer from hex chrome was well-understood.

“It took 30 years and a court order for OSHA to issue a new standard, albeit one allowing exposure five times higher than NIOSH recommended in 1975,” Michaels said during the hearing, titled, “Is OSHA Working for Working People?”

Some exposures were even excluded from the rule altogether; one of which was portland cement, common in the construction industry. OSHA left it out because of low airborne exposures, but a lawsuit from several union groups led to a settlement in which portland cement would be covered in the standard.

Dan James, environmental, health and safety manager of Chromalloy Component Services in San Antonio, TX, said current PELs are strong enough and hopes they stay where they are. As he sees it, meeting the standard’s requirements places a burden on many companies that have been doing the right thing by protecting their workers all along.

“You might have first-class PPE as a permanent solution while spraying parts with chromium-containing paint, spent money on a very comfortable and useful protective suit with air-conditioned air,” James said. “But that’s no longer an acceptable solution. You have to engineer it out.” With final compliance still more than a year off, James said he anticipates more litigation will occur.

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