In late November, a three-judge panel of the U.S. Court of Appeals for the Third Circuit heard oral arguments on the two petitions for review of OSHA’s health standard on hexavalent chromium (CrVI).   The transcript of the proceeding (52-page PDF) reveal that these judges did their homework.  They knew the history and content of the final rule.  I was heartened to read one judge interrupt the Labor Department attorney with:

“Well, one thing that concerns me [about this final rule] is the requirement for notifying employees at the action level of the risk.  And I’m not certain why OSHA chose not to impose the notification point here.  I just don’t understand that.”

We don’t know which judge—Anthony J. Sirica, Majorie O. Rendell, or Sandra Day O’Connor—asked the question (because the transcript only says “The Court”) but it’s indeed a GREAT question.   The judge was referring to a provision in the proposed rule that would have required employers to notify a worker of their exposure monitoring results; it was dropped from the final rule.  

The proposed language was consistent with what is contained in other OSHA health standards, including that the “action level” trigger the requirement for employers to conduct exposure monitoring and medical surveillance.   OSHA proposed:

“…this section requires the employer to notify employees of their exposure monitoring results within 15 working days after the receipt for the exposure monitoring performed in this section.   …Employers may notify each affected employee individually in writing of the results or by posting the exposure-monitoring results in an appropriate location that is accessible to all affected employees.  [Futhermore] if the exposure monitoring results indicate that employee exposure is above the PEL, the employer must include in the written notification the corrective action being taken to reduce employee exposure to or below the PEL.  [69 Fed Reg 59442 (Oct 4, 2004)]”

In the final rule, only the latter part—letting workers know when they’ve been exposed ABOVE the PEL—was retained.

When the judge wondered “why OSHA chose not to impose the notification?” the exchange went like this:

Labor Department attorney: “I think the reasoning was that OSHA did not believe it would provide a significant health benefit.”

The Court:  “Well, now isn’t it the general practice at OSHA to require notification?”

Labor Department attorney: “Well, OSHA in the past…in many other health standards [OSHA] has required that.”

The Court:  “And why wouldn’t you here when this is regarded as a dangerous substance?  I don’t understand.”

The judges obviously had studied OSHA’s quantitative risk assessment and the estimate of 10-45 excess cases of lung cancer per 1,000 workers at the final PEL of 5 ug/m3 per shift over a working lifetime.   It seems the judge was thinking it would be reasonable and consistent with OSHA’s past history that workers are notified of exposure monitoring results even if the results are NOT over the PEL—especially when the PEL will clearly not eliminate workers’ risk of lung cancer.

The Court:  “Well, how does that fit…when under the standard you’ve adopted at 5 ug/m3, you have 10 to 45 instances [of excess lung cancer risk]?  You basically have five percent of the exposed employees experiencing the risk or the actual injury.  Five percent, that’s a lot, isn’t it…?”

Labor Department attorney: “Right. Well, what the statute also sets out…is that we are to regulate to the extent feasible.  So if you look at our standards, our health standards, none of them, I don’t believe any of them get down to the level of prohibiting or precluding any signficant risk.”

And then comes the ZINGER.

The Court to Labor Department attorney: “…you have a situation here where they’re arguing, gee, you could have set the standard at 1 ug/m3, not 5 ug/m3, and you want us to sustain setting it at 5 ug/m3, which makes it likely that far more employees will be injured in their health.  And yet at the same time OSHA doesn’t want to notify those employees when it’s above 1 ug/m3.   It’s a little bit of a concern to me…”

Yes! Good call Judge.   It is indeed a problem and a slap in the face to the fundamental principle of workers’ right-to-know.  Besides, if you’re going to issue a PEL that you (OSHA) acknowledges puts workers’ at excess risk of lung cancer, shouldn’t you include other features in the rule to make sure that workers KNOW about that risk?   For example, what about an annual training requirement making sure that CrVI exposed workers are TOLD that the 5 ug/m3 PEL does not eliminate their risk of lung cancer?   If workers are permitted to sustain the excess risk allowed by the 5 ug/m3 PEL, why shouldn’t OSHA bend over backwards with supplementary requirements to ensure that workers understand the risk.  At a minimum, if a worker develops lung cancer 20 years from now, at least they’d have some clue that it might be related to CrVI exposure.

Did you know that the proposed rule had a “CANCER HAZARD” warning sign requirement, as well as a requirement for maintenance of employee training records.  Both of these were eliminated in the final rule.  Tell me, what kind of feasibility burden did these provisions impose?  

Back to the oral argument.  A few of my other favorite exchanges played out in the (52-page transcript) include:

• When the attorney representing the Edison Electric Institute suggested that his clients were sucker-punched by OSHA’s proposed rule, claiming they had no idea that OSHA was planning to issue a rule to protect workers in THEIR industry from exposure to CrVI.  They assert that when the proposed rule was issued, they didn’t have enough time to do their own assessment of workers’ exposure to CrVI.

Edison Electric attorney: “…frankly in the 90-day period we had for comment one cannot simply go into a power plant and take environmental samples…”

The Court: “OSHA had this under consideration for years, this whole concept.  In fact, we told them to get busy and get the standard established.  So there was an understanding that you were at risk if you did nothing, wasn’t there?”  [‘we told them to get busy’ refers to the Dec 24, 2002 ruling by the Court that required OSHA to promulgate a standard.]

Edison Electric attorney: “…Frankly, it wasn’t until we read the proposal [in 2004] and saw that the scope section said this applies to all exposures to hexavalent chromium that Edison Electric Institute and its members said my goodness, this thing seems to apply to us.  It came as a total surprise.”

Oh pleeeze…at least as early as 2000, OSHA began listing CrVI on its regulatory agenda and noting that about 1 million workers are exposed regularly to CrVI, including during welding operations.  (65 Fed Reg 23014+)   I doubt the judges will fall for their claim.

One of the most troubling statements made during the oral arguments came from the Labor Department attorney in defense of the 5 ug/m3 PEL.

Labor Department attorney: “…I only have a little bit of time left.  I would like to make one general point here, and that is when this rulemaking started, the PEL was at 52 ug/m3.  The Department has brought it down to 5 ug/m3.  That’s 90 percent reduction.   Public Citizen wants to bring it down to 1 ug/m3.  That’s 98 percent reduction.  So all we’re talking about here is the residual risk, this remaining eight percent.”

I’m sorry, but this is not a point spread for a football game.  We re talking about LUNG CANCER and an excess risk of 10-45 cases of lung cases per 1,000 workers at the 5 ug/m3 PEL.    

The DOL attorney goes on:  “Now, if you put that eight percent into the case law which says that OSHA doesn’t have to promulgate a perfect PEL, it only has to promulgate a PEL that’s within the zone of reasonableness, this argument about eight percent seems to me to fall within that zone of reasonableness.  And I think therefore it [the final OSHA rule] should be upheld.”

A “zone of reasonableness”??   I’ve always thought the following were the key issues for OSHA to determine in a rulemaking:

1. does the hazard pose a ‘material impairment of health’
2. does the hazard pose a “signficant risk’ (and ideally, can that risk be quantified)?
3. will the proposed standard substantially reduce the risk?
4. is the proposed standard technologically and economically feasible in the affected industries?

No mention of any “zone of reasonableness.”

On rebuttal, Public Citizen’s attorney noted:

“…I think the issue is not whether OSHA’s rule is in some sort of general zone of reasonableness or that the difference between a 90 percent reduction and a 98 percent reduction is close enough for government work.   …Judge Rendell, you asked about 5 ug/m3 versus 1 ug/m3.  There seems like there’s a big gap there.  OSHA said that these industries can’t meet 1 ug/m3 and then it made the jump up to 5 ug/m3.   I don’t see any explanation in the record as to why they did not consider anything between one and five.    …We argued for a standard less than one.  One is not our ideal number.  But we think that OSHA’s findings reveal that 1 ug/m3 is feasible for everybody.  And at a minimum when OSHA makes those findings that’s what it has to follow through on.”

The three-judge panel may take a few months to write its opinion.   In the meantime, OSHA’s CrVI standard (with a PEL of 5 ug/m3) takes full affect May 31, 2010.