Public Citizen and the Paper, Allied-Industrial, Chemical and Energy Workers International Union (PACE) this week asked a court to order the Occupational Safety and Health Administration (OSHA) to issue a new, lower worker exposure limit for hexavalent chromium. 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 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. 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.
"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," says Dave Ortlieb, director of PACE''s health and safety department.
Hexavalent chromium, not exactly a household word, has become more well-known in recent years because the film "Erin Brockovich" detailed the struggle of the title character to win compensation for residents exposed to groundwater contaminated with the chemical.
"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.
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.
An OSHA spokesperson said the agency has not yet seen the lawsuit and cannot comment on it directly. But, the spokesperson added, "Hexavalent chromium is on the agency''s current regulatory agenda and work continues."
In its most recent regulatory agenda, issued in December 2001, OSHA moved 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," says Scott Nelson, a lawyer with Public Citizen Litigation Group, who said he thought OSHA''s current priorities are "relatively trivial" and require different personnel from those required to work on a rulemaking for hexavalent chromium.
"The agency''s pool of excuses has run dry," says Nelson, adding, "OSHA''s downgrading of hexavalent chromium as a regulatory priority is part of a broader deregulatory effort at OSHA."
Public Citizen 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. While 21 percent of the measurements exceeded the OSHA PEL, 13 percent were lower than the PEL requested by Public Citizen and PACE, 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."
by Sandy Smith ([email protected])