The NAM, the Georgia Industry Association, Inc., the Surface Finishing Industry Council and the Specialty Steel Industry of North America filed a petition for a federal appeals court to review OSHA’s final rule that reduces the permissible exposure limit (PEL) for workplace exposure to hexavalent chromium. The rule, effective May 30, 2006, lowered the standard from 52 micrograms per cubic meter of air down to 5.Hexavalent chromium, or hex chrome, is widely used in a variety of industrial operations and major manufacturing supply chains (e.g., steel, aerospace/defense, automotive, industrial/medical equipment, welding, and shipbuilding.) Some operations not traditionally viewed as chromium-based processes that involve relatively small amounts of chromium (e.g., zinc finishing operations, plastics coating) would also be covered. These operations would incur large costs with few benefits. And, among industries that do use chromium extensively (e.g., chrome plating, stainless steel), the very tight standard brings under regulation large numbers of employees who are not directly involved in chromium operations (such as supervisors, maintenance and shipping personnel).
The parties reached a settlement agreement in May, 2007. It provides that OSHA will issue a letter of interpretation that provides (1) employers will be deemed in compliance with the "methods of compliance" section of the standard if they use engineering and work practice controls in confined and enclosed locations to the extent feasible and supplement those controls with respirators to comply with the permissible exposure limit, (2) the standard does not apply to housekeeping and waste disposal activities if those activities do not involve hexavalent chromium in concentrations at or above .5 micrograms per cubic meter of air as an 8-hour time-weighted average, and (3) large or bulky waste should be disposed of in sealed, impermeable bags or other closed, impermeable containers, including wrapping pallets in impermeable plastic, unless doing so would be infeasible and OSHA agrees.
Public Citizen Health Research Group continued its litigation to try to force OSHA to lower the PEL to 1, and the NAM and SSINA stayed in the case to support OSHA's less restrictive 5 microgram limit. Our brief, filed 7/17/07, argued that for a regulation to be economically feasible, it must be achieved in a typical facility without reliance on respiratory protection in more than a few, isolated operations. OSHA determined that lowering the PEL to 1 micrograms would require nearly 10% of the regulated workforce to wear respirators, and 52% for those working in welding operations. Keeping the regulation at 5 micrograms cuts these numbers by 63%, and is a reasonable decision supported by the evidence.
In addition, we argued that OSHA's decision to set a single, uniform PEL rather than setting multiple PELs for different industries or operations is rational and clearly within its discretionary authority. Also within its discretion is the decision to set an "action level" at one-half the PEL.
On Feb. 23, 2009, the Third Circuit panel, including retired Supreme Court Justice Sandra Day O'Connor, upheld the OSHA regulation, but asked that OSHA provide an explanation for why its final regulation requires employers to notify an employee whenever monitoring results indicate that the employee was exposed to hex chrome at levels in excess of 5 micrograms, while the proposed regulation would have required notification of all monitoring results.
The court ruled that OSHA reasonably concluded that a lower PEL was technologically infeasible for various plant operations, including welding, aerospace painting, and pigment, catalyst and dye production. It upheld OSHA's judgment that electroplating job shops should not have to incur compliance costs totalling 2.7% of revenues and 65% of profits, recognizing that such costs would lead to a tripling of the industry's annual price increases. The court accepted OSHA's decision to apply the standard uniformly across industries, as well as its setting of an "action level" that triggers additional monitoring and surveillance obligations at one-half of the PEL.