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U.S. Appeals Court upholds OSHA's hex chrome PEL (2/26)

February 26, 2009
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The United States Court Of Appeals for the Third Circuit upheld OSHA’s permissible exposure limit for hexavalent chromium on Monday, denying arguments by Public Citizen Health Research Group and the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Worker’s International Union, (collectively “HRG”) that OSHA’s PEL was too low.

OSHA revised its exposure limit for hex chrome Cr(VI) on February 28, 2006. Compounds containing Cr(VI) are used to perform metal electroplating, and in the production of chemical catalysts and pigments for textile dyes, paints, inks, glass, and plastics. Cr(VI) compounds are also encountered incidentally, for example as a by-product of certain welding processes, and as an impurity found in portland cement.

In 1971, OSHA adopted a PEL of 52 micrograms of Cr(VI) per cubic meter, or 52 µg/m , which had been a recommended industry limit since 1943. In 2004, under a court order, the agency proposed reducing the PEL from 52 to 1 µg/m . Upon examining the health risks to workers, and the feasibility of implementing various PELs, OSHA replaced the proposed 1 µg/m PEL with a universal PEL of 5 µg/m.

The U.S. Court of Appeals for the Third Circuit Court ruled that its “review of an OSHA standard is limited and deferential. In executing its statutory mandate, the agency must both find facts and make decisions that are ultimately legislative policy judgments. Our role in reviewing factual findings is expressly limited by the OSH (Occupational Safety & Health) Act, which provides that the ‘determinations of the Secretary (of Labor) shall be conclusive if supported by substantial evidence in the record considered as a whole.’ Evidence is ‘substantial’ when ‘an inference of the fact may be drawn reasonably.’

“Our review of OSHA’s legislative policy judgment is similarly restrained. We have recognized that because judicial review of legislative-like decisions inevitably runs the risk of becoming arbitrary supervision and revision of the Secretary’s efforts to effectuate the legislative purposes in an area where various responses might each be legitimate in the sight of Congress, [a court should] remand only those provisions of [a] standard which le[ave] “nagging questions . . . as to the reason and rationale for the Secretary’s particular choices.

“In applying these considerations to our review of a PEL for coke oven emissions, we concluded that the Secretary’s ultimate determination of the appropriate exposure level is a legislative decision in the exercise of congressionally delegated powers. Even though we might have drawn different inferences from the information before the Secretary, his conclusion was reasonably drawn from the record and, therefore, it must be upheld. Id. at 833. Accordingly, we will not disturb the Cr(VI) PEL, or other policy determination in the instant standard, as long as we conclude that OSHA’s decision was reasonably drawn from the record.

“We conclude that it is eminently reasonable for OSHA to base a tool for PEL compliance on the PEL, and that the past experience and positive comments cited by OSHA provide substantial evidence in support of the chosen action level. We will accordingly not disturb the Agency’s decision.”

The court did rule that OSHA failed to adequately explain why it set the exposure limit requiring employee notification of monitoring results to be in excess of 5 µg/m3 in the final standard. The proposed rule would have required an employer to notify an employee of all monitoring results. HRG argued that OSHA’s decision not to adopt the proposed rule and, instead, to set the notification level at the PEL is arbitrary and unexplained.

The court stated in its decision: “OSHA failed to provide a statement of reasons for its actions as required, and we will accordingly grant HRG’s petition on this ground.

“We will accordingly remand the matter to OSHA for further consideration and explanation, consistent with this opinion. 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 requirements, or taking such further action as may be appropriate

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