OSHA's Hex Chrome PEL Upheld

OSHA won on almost all counts in a decision issued Monday by a 3rd U.S. Circuit Court of Appeals panel of judges weighing challenges to the hexavalent chromium permissible exposure limit set in February 2006. The Public Citizen Health Research Group (HRG) and the Steelworkers union sued, claiming the PEL OSHA chose -- 5 micrograms of Cr(VI) per cubic meter of air -- is insufficiently protective of workers exposed to the compound during welding, aircraft painting, electroplating, and some other tasks. The judges who heard the case last November in Philadelphia and ruled this week were former U.S. Supreme Court Justice Sandra Day O'Connor, 3rd Circuit Chief Judge Anthony J. Scirica, and Judge Marjorie O. Rendell.

The Edison Electric Institute also sued for a different reason but lost: EEI said OSHA should not have applied its hex chrome standard to maintenance and repair employees at coal and nuclear electric power plants. Those workers can be exposed to Cr(VI) in fly ash or while welding. The appeals court panel denied EEI's petition and upheld the standard as written. OSHA estimated 558,431 workers are exposed to Cr(VI) in their work.

Required by this same court to issue the standard, OSHA proposed a 1 ug/m3 PEL but chose to finalize 5 ug/m3 instead, concluding the lower limit was not feasible for welding and aircraft painting employers to achieve, but the higher one was economically and technically feasible for all industries. This was a reasonable conclusion based on the health and economic analyses OSHA conducted and the evidence submitted during the rulemaking process, the judges found.

They upheld HRG on just one point, its challenge to the notification level: The decision tells OSHA to state its reasons for requiring employees to be notified when monitored Cr(VI) exposures exceed the PEL, rather than being notified of all monitoring results as the agency originally proposed.

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