"This is a victory," declared Scott Nelson, an attorney for Public Citizen, a watchdog non-profit organization that has filed two lawsuits to force OSHA to fulfill its rulemaking promise on HC. "We're quite pleased with the outcome, but it is unfortunate that after 10 years of twiddling its thumbs, it will take another three to get a rule out."
OSHA asked the court to give it almost four years, or until November 2006, to come up with a final rule. "We are disappointed that we will not have as much time as we feel we need to develop a standard on hexavalent chromium," commented an OSHA spokesperson. "But we respect the court's decision and will use the time available to the best possible advantage to develop a rule to protect workers in the affected industries."
The regulation of the carcinogenic chemical is complicated, according to Christina Parascandola, a lawyer representing the Chrome Coalition, a group of chromium producers, users and distributors. Determining the appropriate exposure level for the chemical is confounded by imperfections in recent scientific studies Parascandola argued.
Studies have been based on workers whose exposures to HC in the 1960's and 1970's were far higher than what is common today. Moreover, a recent Johns Hopkins University study did not control for smoking, another known carcinogen, and these worker populations are believed to have high rates of smoking.
OSHA's current general industry standard sets a permissible exposure level (PEL) for water-soluble hexavalent chromium compounds at 100 micrograms per cubic meter as a ceiling concentration; the standard for construction is 100 micrograms per cubic meter as an 8-hour time-weighted average.
"OSHA has told us unofficially they're looking to cut the PEL from five to 208 times below the current level," said Parascandola. "Measuring the health effects of HC at such low levels raises a number of issues." For one thing, she said, there is no standard sampling method for HC.
In addition, OSHA is planning not only to change the PEL for HC, but to issue a comprehensive standard entailing a broad range of work practice provisions, from respirator use to medical surveillance.
Nelson attributed the rare court intervention into OSHA rulemaking to a number of factors:
- OSHA has repeatedly acknowledged its existing rule is inadequate;
- Industry touted the Johns Hopkins study as the latest and best guide to HC risks and its results confirmed that the chemical is carcinogenic at lower levels than the existing standard;
- In response to a 1997 lawsuit brought by Public Citizen, OSHA told the court it expected to produce a proposed rule by 1999; the court was displeased to hear that four years later the agency is farther from rulemaking than it was in 1999;
- In the past, OSHA justified delays in HC rulemaking by telling the court it had "other rulemaking priorities," but its current rulemaking agenda contains fewer items.
"This time around OSHA said they haven't made up their minds what their regulatory priorities are," according to Nelson. "But they said, 'it's up to us, not the court, to decide what our priorities are.' The way their lawyers expressed it may have raised the court's hackles a bit."