Cr(VI) is a known carcinogen, and also affects the respiratory system, kidneys, liver, skin and eyes.  Chromium metal is added to alloy steel to increase hardenability and corrosion resistance. A major source of worker exposure occurs during "hot work" such as welding on stainless steel and other alloy steels containing chromium metal.  Compounds containing Cr(VI) are used as pigments in some dyes, paints, inks, and plastics. It also may be used as an anticorrosive agent added to paints, primers, and other surface coatings.  

The OSHA website provides quite a bit of information about the hazards of exposure to Cr(VI).  See https://www.osha.gov/hexavalent-chromium. 

But the website does not tell the whole story of the rulemaking efforts. 

OSHA issued a limit on exposure for Cr(VI) as part of the interim PELs in 1971. “This PEL … was based on a 1943 recommendation by the American National Standards Institute, which in turn was based on reports generated in the 1920s, none of which considered chromium's carcinogenic effects.”  Pub. Citizen Health Research Grp. v. Chao, 314 F.3d 143, 147 (3d Cir. 2002).

But unlike many of the chemicals that remain caught in the PEL quagmire, OSHA did ultimately successfully issue new standards covering general industry  (1910.1026), shipyards (1915.1026), and construction (1926.1126).  If you look at the general industry standard, you will note that it  includes a permissible exposure level: “The employer shall ensure that no employee is exposed to an airborne concentration of chromium (VI) in excess of 5 micrograms per cubic meter of air (5 µg/m3), calculated as an 8-hour time-weighted average (TWA).” 1910.1026(c).  It also has an action level that requires the employer to take a variety of protective measures: “Where the employer has objective data demonstrating that a material containing chromium or a specific process, operation, or activity involving chromium cannot release dusts, fumes, or mists of chromium (VI) in concentrations at or above 0.5 µg/m3 as an 8-hour time-weighted average (TWA) under any expected conditions of use.” 1910.1026(a)(4).  Like all full health standards, this standard goes further: It includes monitoring requirements to determine levels of exposure, notice to employees, demarcation of areas where exposure may be excessive, engineering and work practices to control exposure levels (and forbid rotation of workers as the method of compliance), respiratory protection, housekeeping and recordkeeping requirements, hazard communication and medical surveillance for exposed workers – in addition to setting a specific level of exposure.  Note that the original PELs, discussed above, do not include this range of protections.

How did these Cr(VI) standards come into being?  The history is instructive regarding the politics and challenges of standard setting.

In 1993, unions and others petitioned OSHA to issue a new standard for Cr(VI).  OSHA denied the petition because it contended that “the extremely stringent judicial and statutory criteria for issuing” an emergency standard were not met. It did, however, acknowledge that its existing standard was inadequate: “OSHA agrees that there is clear evidence that exposure to CrVI at the current PEL of 100 μg/m3 can result in an excess risk of lung cancer and other CrVI-related illnesses.”  It therefore announced that it was beginning a Section 6(b) rulemaking process for occupational exposure to CrVI, and was proceeding to prepare the necessary health and economic impact assessments.  “We anticipate that Notice of Proposed Rulemaking will be published in the Federal Register not later than March 1995.”

In 1997, unions and public health groups sought an order from the Third Circuit Court of Appeals that would require OSHA to issue a standard.  The following year, the court refused to issue the order, holding that the delay was not [yet] unreasonable.  Oil, Chem. & Atomic Workers Union v. Occupational Safety & Health Admin., 145 F.3d 120 (3d Cir. 1998).  The court summarized the situation this way:

Chromium has, in one form or another, been used since the eighteenth century in various industries, most significantly in the production of metal alloys. Chromium VI, or hexavalent chromium, is a structural and anti-corrosive element which has been used in the metal, chemical, pigment, aviation and graphics industries, among others. In 1997, OSHA estimated that between 200,000 and 700,000 workers in these industries are regularly exposed to hexavalent chromium. 62 Fed.Reg. at 21978 (1997). In 1971, in response to concerns that hexavalent chromium is a carcinogen, OSHA exercised its rulemaking authority and adopted a national consensus standard for hexavalent chromium. See 29 U.S.C. § 655(a) (directing the Secretary to promulgate such standards immediately upon passage of the OSH Act in 1970). This standard, which is still in effect today, set for workers a permissible exposure limit (“PEL”) of 100 micrograms of chromium per cubic meter of air (100 ug/m3). 29 C.F.R. § 1910.1000.

In July 1993, Petitioners filed their first petition for rulemaking with OSHA requesting emergency action under the OSH Act, 29 U.S.C. § 655(c). That petition pointed to contemporary studies of the elevated risks of respiratory cancer for workers exposed to hexavalent chromium, and requested that the Secretary immediately lower the PEL for hexavalent chromium in the workplace.

The Secretary declined to set an emergency temporary standard because he found the evidence insufficient to support the allegation that a standard was immediately “necessary” to protect workers from such a “grave danger.” Instead, OSHA undertook research into proposed rulemaking regarding hexavalent chromium. “We anticipate,” it wrote the Petitioners, “that Notice of Proposed Rulemaking will be published in the Federal Register not later than March 1995.”

Because of many unanticipated factors—the release of a breakthrough study on workers exposed to chromium which necessitated detailed examination, “the results of the November 1994 elections” in Congress, government shutdowns, budget cuts, the need to study potential compliance with a new PEL, the need to consult with small businesses and the reprioritizing of other agency projects—OSHA has not issued a notice of proposed rulemaking on hexavalent chromium. It now anticipates a September 1999 date as its tentative deadline for a rulemaking proposal.

The court noted that this was an “unusual petition requesting extraordinary relief.” 

The mechanism for bringing a claim of unreasonable delay in promulgating regulations is the Administrative Procedure Act which specifically provides that a court may “compel agency action unreasonably delayed.” 5 U.S.C. § 706(1).  Not surprisingly, the courts are not eager to take this on – or they would be flooded with these requests. 

The court further opined as follows:

[W]e are called upon to balance the importance of the subject matter being regulated with the regulating agency’s need to discharge all of its statutory responsibilities under a reasonable timetable. [citations omitted] With this balance in mind, unreasonable delay should be measured by the following factors:

First, the court should ascertain the length of time that has elapsed since the agency came under a duty to act. Second, the reasonableness of the delay should be judged in the context of the statute authorizing the agency’s action. Third, the court should assess the consequences of the agency’s delay. Fourth, the court should consider “any plea of administrative error, administrative inconvenience, practical difficulty in carrying out a legislative mandate, or need to prioritize in the face of limited resources.” The Raymond Proffitt Found. v. EPA, 930 F.Supp. 1088, 1102 (E.D.Pa.1996) (quoting In re Chem. Workers Union, 958 F.2d 1144, 1149 (D.C.Cir.1992)).

In the end, application of these factors to a particular case is fact-intensive. We must begin a discussion of agency action, or inaction, by affording the agency “considerable deference in establishing a timetable for completing its proceedings.” Cutler, 818 F.2d at 896.

Distilled to its essence, this petition by Oil, Chemical and Public Citizen would have us intrude into the quintessential discretion of the Secretary of Labor to allocate OSHA’s resources and set its priorities. It is certainly true that “[d]elays that might be altogether reasonable in the sphere of economic regulation are less tolerable when human lives are at stake.” … This presupposes, however, that the evidence before the agency sufficiently demonstrates that delay will in fact adversely affect human health to a degree which necessitates a priority response. The Petitioners allege that between 88 and 342 out of every 1,000 workers exposed to hexavalent chromium will die from cancer attributable to the chromium exposure. On the other hand, the Respondents and Intervenors raise serious questions about the validity of the data and assumptions underlying the Petitioners’ calculations. For example, Intervenor Color Pigments Manufacturers Association, Inc. argues that the Petitioners are wrong to assume that all workers in industries dealing with chromium in some way or another are exposed to 100 ug/m3 hexavalent chromium, every working day for 45 years. …  In addition, Intervenor The Chrome Coalition points to a plethora of studies which demonstrate the inconclusivity of hexavalent chromium’s role in causing cancer because the effects of smoking and asbestos exposure on workers have not been fully considered. Faced with such varying data and differing interpretations as these studies represent, this Court is not in a position to tell the Secretary how to do her job.

“OSHA not only possesses enormous technical expertise we lack, but must juggle competing rulemaking demands on its limited scientific and legal staff.” Brock, 823 F.2d at 629; see also Environmental Defense Fund, 902 F.2d at 789. Its various obligations notwithstanding, OSHA has been far from idle in its consideration of hexavalent chromium. This is not a subject matter to which the agency has never given a thought, but is rather already regulated in the workplace by the agency’s current standards. Moreover, OSHA has amassed a wealth of data reanalyzing the health risks of hexavalent chromium and is currently in the process of collecting information about the feasibility of any proposed alterations to the standards now in place…. we are satisfied that the facts alleged here do not demonstrate inaction that is either contrary to a specific Congressional mandate, in violation of a specific court order or unduly transgressive of the agency’s own tentative deadlines. … We therefore conclude that, on the record accompanying this petition, OSHA has not “unlawfully withheld or unreasonably delayed” the responsibility of rulemaking.

During this 1998 case, OSHA promised to have the rule out in September 1999, and the court found that date permissible in light of alleged competing policy priorities, including the Clinton Administration’s ergonomics initiative.

But the 1999 deadline came and went, and no standard was issued.  Admittedly, OSHA was completely tied up trying to issue its ergonomics rule.  The proposed ergonomics rule was issued in 1999, the final rule in late 2000.  President George W. Bush took office in January 2001.   In the meantime, more scientific evidence linking Cr(VI) to serious health effects – far exceeding the minimum 1 in 1000 expectation set out in the Benzene Decision – particularly a large study done at Johns Hopkins – became available.

In 2002, Public Citizen went back to court, again seeking an order that would require OSHA to issue a rule.  This time, the court was more sympathetic to the petitioners, acknowledging the long delay and noting the fact that NIOSH had been recommending a revision of the initial PEL “for several decades.”  Pub. Citizen Health Research Grp. v. Chao, 314 F.3d 143 (3d Cir. 2002) (for a full recounting of the repeated delays, read the full opinion).

At the time of oral argument in this second case, nine years had passed since OSHA initially announced its intention to begin the rulemaking process and “no rulemaking had yet been initiated, and it appeared that none would be in the foreseeable future. Indeed, at oral argument, OSHA’s counsel admitted the possibility that OSHA might not promulgate a rule for another ten or twenty years, if at all.” 

The agency was clearly not happy about how it went in oral argument:  

This opinion was drafted on an expedited basis and was circulating to the panel when we received OSHA’s announcement that it had instituted the long-sought rulemaking process, stating that: “The health risks associated with occupational exposure to hexavalent chromium are serious and demand serious attention.... We are committed to developing a rule that ensures proper protection to safeguard workers who deal with hexavalent chromium.” OSHA News Release of Dec. 4, 2002…

This notice appears to have been prompted by the displeasure clearly evidenced by the panel during oral argument …. Notwithstanding OSHA’s long delay, we salute the agency upon its recent action and accompanying recitation, and trust that it will have a good result. That said, it does not moot this proceeding because the agency’s action does not resolve an important facet of the case, namely Public Citizen’s request that we order OSHA to issue a proposed rule within 90 days and supervise OSHA’s progress.

The court concluded that “the delay had become unreasonable, and that while competing policy priorities might explain slow progress, they could not justify indefinite delay and recalcitrance in the face of an admittedly grave risk to public health. We therefore determined to grant the petition and to direct OSHA to proceed expeditiously with its hexavalent chromium rulemaking process.” 

The OSHA position in the Clinton Administration had been, essentially, ‘we’re working on it.’ But in the 2002 case, OSHA changed course, calling Public Citizen’s concerns “misconceived:” OSHA backed away from its position regarding the scientific assessment, now saying that it believed:

[T]hat the information now available is inconclusive on important issues, such as whether the epidemiological studies ... apply to all Cr VI compounds and the utility of the data to establish a dose-response relationship. Although the Hopkins Study was a step forward, OSHA points out that its authors acknowledged certain limitations, particularly in estimating the cumulative exposure for the different individuals in the cohort. The study also did not resolve the dispute over whether all hexavalent chromium compounds present the same degree of risk.  

Despite OSHA’s resistance, the Second Circuit found the “nine-year (and counting) delay since announcing its intention to begin the rulemaking process extreme,… even relative to delays other courts have condemned in comparable cases. Indeed, in no reported case has a court reviewed a delay this long without compelling action.”  The court then reviewed the prior history of attempts to force OSHA to issue rules.  If you are interested in these cases, see In re Int'l Chem. Workers Union, 958 F.2d 1144 (D.C. Cir. 1992) (granting petition requesting imposition of deadline on OSHA for completion of standard for cadmium); Public Citizen Health Research Group v. Auchter, 702 F.2d 1150 (D.C.Cir.1983) (requiring OSHA to expedite rule making regarding ethylene oxide, but denying petition for emergency temporary standard).

With regard to the problem of scientific uncertainty, the court wrote, “the Occupational Safety and Health Act does not require scientific certainty in the rulemaking process. Indeed, read fairly, the Act virtually forbids delay in pursuit of certainty – it requires regulation ‘on the basis of the best available evidence,’ 29 U.S.C. § 655(b)(5) and courts have warned that ‘OSHA cannot let workers suffer while it awaits the Godot of scientific certainty.’ United Steelworkers of America v. Marshall, 647 F.2d 1189, 1266 (D.C.Cir.1980).”

The court then decided to submit the creation of a timetable to mediation, an admittedly novel approach.  The mediation yielded a timetable that required a final rule be promulgated by  January 18, 2006.  Pub. Citizen's Health Research Grp. v. Chao, No. 02-1611, 2003 WL 22158985, at *1 (3d Cir. Apr. 2, 2003). 

OSHA issued the final rule for general industry (finally) on February 28, 2006 [see Occupational Exposure to Hexavalent Chromium, 71 Fed. Reg. 10100-01], reducing the permissible exposure of the PEL from 100 μg/m³to 5µg/m³ and including the full range of protections generally part of comprehensive health standards.  The standards in shipbuilding and construction followed shortly thereafter.

--------------------------

Question:

Is this a story of success or failure? Would litigation like that brought by Public Citizen succeed today?