The U.S. Court of Appeals for the Third Circuit issued a decision this week on legal challenges to OSHA’s 2006 rule to protect workers from exposure to hexavalent chromium.  In the simpliest terms, Public Citizen’s Health Research Group and the Steelworkers argued that OSHA’s rule was not protective enough, while the Edison Electric Institute (EEI) argued that they should be exempt from it.  The three-judge panel, which included retired U.S. Supreme Court judge Sandra Day O’Connor, rejected all but one of the petitioners’ claims, deferring largely to OSHA’s authority.  Circuit Judge Rendell wrote:

“we will not disturb the Cr(VI) permissible exposure limit or other policy determination…as long as we conclude that OSHA’s decision was reasonably drawn from the record.”

I have mixed feelings about this decision.  On the one hand, I’m pleased to read the judges’ deference to OSHA’s expertise; that’s usually a good thing.  Under leadership that values public health science and the worker-protection goals of the OSH Act, I’m relieved when federal judges defer to the agency’s policy decisions.  On the other hand, when DOL/OSHA leadership value employers’ economic interests more than workers’ health, that may come at the cost of a less-protective OHS standard.  Regrettably, that’s  what happened in this case.  According to OSHA’s own estimates, working lifetime exposure at 5 ug/m3 (8-hr TWA) will result in 10 to 45 lung cancer deaths per 1,000 workers.  OSHA justified the 5 ug/m3 PEL (as opposed to the proposed 1 ug/m3 PEL) as the level “to the maximum extent that is technologically and economically feasible,” a requirement of the OSH Act.

The need to demonstrate feasibility of workplace health standards rests on DOL—and it can be viewed as a burden or an opportunity.  Clearly, demonstrating the feasibility of 5 ug/m3 was a lot easier than making the case that a 3 ug/m3 or a 1 ug/m3 standard was feasible.   Imagine if the leadership at DOL/OSHA had embraced the concept of a “technology forcing” standard?  And/or promulgated a rule that would have required an even more protective exposure limit to take affect 5 or 10 years in the future?

That, however, is one of the pitfall of having this workplace Cr(VI) standard promulgated under the regulatory philosophy of Secretary Chao and Edwin Foulke.  They were under Court order to issue a rule by February 2006, but not under any mandate to push the envelope and make it as health protective as possible using a technology-forcing framework.   That’s why the Court’s deference to OSHA in this case is a little sour to swallow.

I want to draw your attention to a few of positive aspects of the Court’s decision, such as their wholesale dismissal of all of EEI’s claims.  The judges rejected, for example,   EEI’s argument that the studies used by OSHA to assess the lung cancer risk from Cr(VI) exposure (mostly epidemiological studies of chromate production workers) could not be applied to workers exposed to Cr(VI) in electric power plants.  The judges embraced OSHA’s determination

“… that all Cr(VI) compounds are carcinogenic, and that risk estimates derived from the Gibb and Luipppold cohorts were ‘reasonably representative of the risks expected from equivalent exposures to different Cr(VI) compounds in other industries.”  (Decision, p.51)

That is music to my ears.  How often have we heard representatives from one industry make a claim that epidemiological evidence of an association between exposure and disease among workers in a particular industry can no-way, no-how be used to inform potential risk determinations in a different industry?  

Judge Rendell writes:

“OSHA’s conclusion that health risk data derived from the chromate production industry was sufficient to establish the toxicity of Cr(VI) compounds generally is supported by the best available evidence and by substantial evidence.” 

The judges also rejected EEI’s claim that the standard is not economically and technologically feasible for coal and nuclear electricity utility power plants.  Judge Rendell writes:

“…EEI argues that OSHA failed to prove economic feasibility because it did not show that the costs of compliance would be reasonably related to the benefits to be derived from employee protection.  This argument is predicated on a clear misstatement of law.  [Ouch!] 

“EEI relies on a concurring opinion by Justice Powell [Benzene decision, 1980] in which he argued for a proportionality requirement.  The court squarely rejected Justice Powell’s position the next year in [Cotton Dust decision, 1981], after reasoning that a ‘cost-benefit analysis on the issuance of 6(b)(5) standards would eviscerate the ‘to the extent feasible’ requirement.  We therefore reject EEI’s argument with respect to economic feasibility.”

The Court rejected most of claims made by Public Citizen’s Health Research Group and the Steelworkers, including that a 1 ug/m3 standard (rather than the adopted 5 ug/m3) was feasible for the affected industries and operations.  The judges agreed, however, on one very important matter:  OSHA failed to explain its decision to restrict employee notification of air monitoring results.  This was a source of interesting dialogue during oral arguments on the case, as I wrote last November in “3rd Circuit Judges Laud Workers’ Right-to-Know”.   The debate concerned a provision contained in the proposed rule that would have required employers to notify a worker of all exposure monitoring results.  It is a protection included in all of OSHA’s other health standards.  Without explanation, OSHA’s final rule only required employers to notify workers when monitoring results exceeded the 5 ug/m3 level.   

Judge Rendell wrote:

“While we recognize that OSHA operates with substantial discretion in promulgating standards, rules, and decisions, the Agency must always include a statement of its reasons for any such action in the Federal Register.  We are particularly curious as to OSHA’s reason for setting the notification level at the PEL, since the Agency does not deny taht this decision departs from both its proposed rule and its past practice.” 

This is the only provision in the rule that is remanded back to OSHA.   The judges recognized that this final Cr(VI) rule was a long time in the making, and followed two lawsuits by Public Citizen to compel OSHA to address this workplace carcinogen.  Judge Rendell closed his opinion by stating:

“Given the length of time that has passed in finalizing the rule before us, and the need for certainty, we expect that OSHA will act expeditiously in either providing an explanation for its chosen notification requirement, or taking such further action as may be appropriate.”

This may be one of the first big decisions Secretary Solis will be making on a workplace health standard.  I’m eager to see a bold statement quickly that reverses the inadequate worker notification provision in the final rule, and replaces it with one consistent with the principle of a workers’ right-to-know.