Special Focus
OSHA Lowering Allowable Levels of Airborne Hexavalent Chromium
Jul 2004
Hexavalent chromium has long been known to cause adverse health effects in workers and is classified as a carcinogen by the U.S. Environmental Protection Agency (EPA), the National Toxicology Program (NTP), the International Agency for Research on Cancer (IARC), the State of California under Proposition 65, and the Occupational Safety and Health Administration (OSHA) for purposes of its Hazard Communication Standards. The current Permissible Exposure Limit (PEL) for airborne exposure to hexavalent chromium is 100 µg/m3. 1 Over the years, worker unions and citizen groups have pressured OSHA to lower this standard. Recently, the Third Circuit Court of Appeals ordered OSHA to initiate a rulemaking on hexavalent chromium, to publish a proposed rule by October 2004, and to publish the final rule by January 2006.2 The process is well underway, and OSHA is working toward meeting this court imposed deadline. Historical Background In 1975, the National Institute for Occupational Safety and Health (NIOSH) recommended that the PEL for hexavalent chromium be lowered from 100 µg/m3 (ceiling) to 2 µg/m3 as an eight hour time-weighted average (TWA). In 1993, Public Citizen's Health Research Group (HRG) and the Oil, Chemical and Atomic Workers Union (OCAW, now PACE) petitioned OSHA to lower the PEL to 0.5 µg/m3. OSHA denied the petition, but determined that exposures at the permitted levels may result in an excess risk of cancer.3 Although OSHA announced that it would initiate a rulemaking on hexavalent chromium that would be published no later than March 1995, the agency failed to publish a proposed rule by this date. In 1997, after OSHA's continued inaction on the rulemaking, HRG and OCAW sued to force OSHA to take action on hexavalent chromium. Despite its statement that the existing standard was inadequate to protect worker health, OSHA cited numerous reasons for not completing the rulemaking on hexavalent chromium, including competing agency priorities and uncertainty in the data. The Court dismissed Public Citizen's request for action, concluding that the facts did not demonstrate that OSHA's actions had been unreasonable and that the Secretary of Labor had the discretion to allocate the department's resources and to set the OSHA's priorities. Again, despite its statement to the Court that the proposed rule would be published by September 1999, OSHA did not meet this deadline. In February 2002, Public Citizen again sued OSHA to force action on the matter. In December 2002, the Court published a scathing opinion critical of OSHA's delay and ordered mediation between the parties to assist the Court in setting a reasonable and workable schedule for the hexavalent chromium rulemaking. On April 2, 2003, with the parties unable to agree on a rulemaking schedule, the Court adopted the mediator's recommendation and directed OSHA to publish a proposed hexavalent chromium rule no later than October 4, 2004 and a final standard no later than January 18, 2006. Draft Proposal Under Review In accordance with the regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act, OSHA developed a draft proposed standard and supporting materials to be evaluated by a review panel of agency personnel (from OSHA, Office of Management and Budget, and the Small Business Administration) with the assistance of small business representatives from industry sectors likely to be impacted by any new rule. Affected activities include electroplating, painting operations, and welding, especially stainless steel welding. Industries that would be particularly affected include producers of chromates and chromate pigments and dyes, painting and coating producers, printing ink manufacturers, plastic colorant producers and users, and producers of colored glass. OSHA's draft proposal would implement a comprehensive regulatory scheme similar to those in OSHA's existing substance specific standards, such as lead, asbestos, etc., and would lower the PEL from the current 100 µg/m3 (ceiling) to a level between 0.25 and 10 µg/m3, calculated as a time-weighted average (TWA). In addition, the proposal would include restrictions on activities that generate airborne hexavalent chromium. The standard includes requirements for initial and periodic monitoring, engineering controls (e.g., substitution of materials, wet methods, ventilation), work practices (e.g., regulated areas, changing rooms and showers), personal protective equipment (PPE), and medical surveillance. In addition, OSHA is considering requirements to address dermal exposures based on evidence that hexavalent chromium is not only carcinogenic and corrosive, but also resides in tissue and blocks the normal healing process. Most small business representatives on the Small Business Advocacy Review Panel suggested that the proposed PEL was too low, and have recommended that OSHA consider a PEL in the range of 20-26 µg/m3. Several representatives also stated that OSHA underestimated the cost and feasibility of the proposed action. Some recommended that OSHA permit employers to meet the PEL through the use of respirators rather than through engineering controls. In addition, some small business representatives have been critical of the proposal because it does not account for the varying toxicity of the different hexavalent chromium compounds. Others have suggested that the linear risk model used by the agency is not appropriate because it assumes that there is no threshold exposure level below which the risk of developing cancer is zero. Some industry representatives have stated that their employees have only intermittent exposures to hexavalent chromium. These representatives consider the adoption and application of a standard that assumes exposures over an eight hour per day, 45-year working life, to be unrealistic and have noted that such a standard will require the expenditure of large sums for little long term benefit. OSHA is expected to comply with the Court's October 4, 2004 deadline. To do otherwise creates a potential political issue late in the 2004 Presidential election campaign and risks a contempt of court proceeding. While industry will have an opportunity to provide OSHA with comments at that time, we believe it would be a mistake to wait until October to develop data for submission to OSHA. Given the Court's January 2006 deadline, comment periods are likely to be short and extensions of comment periods hard to obtain.