The request for information, which comes nearly nine years after OSHA first promised to address the problem, made no mention of new rulemaking and is scheduled to be published in the Aug. 22 Federal Register.
"Our position is that at this stage of the game, a request for information amounts to doing nothing," said Scott Nelson, an attorney at the Public Citizen Litigation Group. "This isn't even an announcement of proposed rulemaking."
Public Citizen, a consumer group, and the Paper, Allied-Industrial, Chemical and Energy Workers International Union (PACE) are suing OSHA, charging that nine years have passed since OSHA first promised to tighten the standard and that the delay has "exceeded all reasonable bounds." Nelson believes OSHA's request for information is part of its legal defense against the charge that it has done nothing with respect to rulemaking on hexavalent chromium.
Hexavalent chromium is a chemical commonly used as a structural and anti-corrosive element in the production of stainless steel, iron and steel, and in electroplating, welding and painting. OSHA first promised to lower the permissible exposure limit (PEL) of the substance in 1993 after Public Citizen and PACE petitioned the agency to issue an emergency standard.
The standard was a proposed rule in the Clinton administration and was downgraded to a long-term action in OSHA's December 2001 regulatory agenda. OSHA's current general industry standard sets a PEL for 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 eight-hour, time-weighted average.
In their lawsuit, Public Citizen and PACE urged the U.S. Court of Appeals for the Third Circuit to compel OSHA to issue a proposed PEL of 0.5 micrograms per cubic meter for the substance within 60 days and to issue a final standard by the end of the year. Exposures to the metal have been associated with lung cancer, dermatitis and asthma.
"We already know there are risks involved in the occupational use of this metal," OSHA Administrator John Henshaw said. "But there are a number of complex issues to be addressed, including differences in opinion on the interpretation of health effects data, current uses and exposures."
Comments must be submitted by Nov. 20. To submit comments by regular mail, express delivery, hand delivery or messenger service, send three copies and attachments to the OSHA Docket Office, Docket No. H-0054a, Room N2625, U.S. Department of Labor, 200 Constitution Ave. N.W., Washington, DC 20210. Comments may be submitted electronically through the Internet at ecomments.osha.gov. Further information on submitting comments can be obtained by calling the Docket Office at (202) 693-2350.