OSHA Hexavalent Chromium Rule Affirmed

In a decision issued February 23, 2009, the U.S. Court of Appeals for the Third Circuit affirmed the Occupational Safety and Health Administration's (OSHA) permissible exposure limit for hexavalent chromium of 5 micrograms per cubic meter (µg/m3) of air as an 8-hour time-weighted average. Public Citizen Health Research Group had brought the suit against OSHA, arguing that the standard was not sufficiently protective of people exposed to hexavalent chromium in the workplace and was not substantiated by the health effects data. 

Public Citizen asked the court to reduce the hexavalent chromium PEL from 5 µg/m3 to 1 µg/m3, based on its claim that OSHA's finding that a 1 µg/m3 limit is infeasible was not correct. The court disagreed that a 1 µg/m3 limit is technologically and economically feasible for many industry sectors. The court granted part of Public Citizen’s petition, however:  a provision that employees be notified of the results of hexavalent chromium exposure monitoring. 

When OSHA issued its final hexavalent chromium rule in 2006, the agency acknowledged that the 1 µg/m3 limit could be met in some industries and operations, but it also conceded that to establish and apply different PELs to the multiple industries and operations covered by the standard would be prohibitively difficult. A feasibility study indicated that a 1 µg/m3 PEL would not be feasible for 56 percent of the 558,431 US workers exposed to hexavalent chromium.  Among those are 270,000 workers in the welding industry, 33,400 in electroplating job shops, 8,300 in aerospace painting, and 469 in chromium pigment, catalyst, and dye production.

The Third Circuit accepted OSHA's argument that multiple exposure limits would be difficult to administer, and that a uniform PEL would improve the effectiveness of the standard by “facilitating employer understanding and compliance.” The court rejected the argument that a uniform exposure limit of 5 µg/m3 would put some workers at risk who feasibly could be protected. 

The Third Circuit also dismissed Edison Electric's argument that electric power plants should be exempted from the standard because the concentrations of hexavalent chromium in that industry are so low.