Monday, March 13, 2006

More On OSHA's Hexavalent Chromium Mess

Wherein I continue to rant about the recent atrocity issued by OSHA -- the new Hexavalent Chromium Standard.

Before we begin, remember what seems to be OSHA's new rule. Repeat five times:

  • Simple and understandable regulations: Good for employers
  • Simple and understandable regulations: Bad for employees.
For those who are just tuning in, OSHA issued a new (court-ordered) health standard, to address exposure to the cancer-causing chemical hexavalent chromium. The standard was released a week after the publication of a report showing that the chromium industry had covered up evidence that very low levels of chromium can cause cancer. OSHA not only refused to lower the permissible exposure limit to a safe, low level, but actually raised the acceptable level 5 times above the level the agency had originally proposed in 2004.

Last week I wrote a piece describing how the standard also broke new ground -- and not in a good way -- by eliminating training requirements that have been included in all other OSHA chemical program standards. All employees had to do if they wanted to figure out their employer's training obligations was to find and understand a bunch of interpretations letter, compliance directives and related standards. Sound simple?

Today, we venture into another part of the standard where workers again get screwed: employee notification of exposure monitoring results.

All previous OSHA chemical standards, including the hexavalent chromium standard, require employers to monitor employees' exposure to ensure that they aren't being over exposed and to ensure that the employer takes action to reduce exposures if workers are being overexposed.

    In addition to monitoring, previous standards, such as OSHA's methylene chloride standard, require employers to inform employees of their exposure results -- whether they're over or under the Permissible Exposure Limit.

    The hexavalent chromium standard is, once again, different. Paragraph (d)(4)(i) of the standard states that:

    Where the exposure determination indicates that employee exposure exceeds the PEL, within 15 working days the employer shall either post the results in an appropriate location that is accessible to all affected employees or shall notify each affected employee individually in writing of the results.

    Did you get that? The employer is only required to provide exposure results if "employee exposure exceeds the PEL" instead of providing all exposure records to the employee.

    Why is this bad? A couple of reasons.

    First, suppose you work with hexavalent chromium. There's this new OSHA standard and for the first time, your employer is monitoring your exposure. Good thing. But he never tells anyone what the results are. Hmmm. That could be good. No news is good news in this case, right? If we're not notified, that means that the exposure doesn't exceed the PEL. Right?

    Possibly. Or it could just mean that the employer isn't complying with the law. No way to know except ask -- which, if you're one of the few American workers lucky enough to be represented by a union, is not big deal. For everyone else, however, confronting the employer about whether the exposure levels are low -- or he's violating the standard -- could cause problems.

    Another reason that it's good to get all the exposure data is a problem we've discussed here many times before: Workers are the canaries of the American workplace. When a chemical causes cancer or other health effects, it's generally workers who find out first -- up close and personal. If health problems are occurring, even if the exposure levels are lower than the PEL, that's information that workers should know about.

    The problem is especially serious with this standard because OSHA admits that there is still significant risk of lung cancer at the new 5 micrograms per cubic meter level Permissible Exposure Limit (PEL). OSHA estimates 10 to 45 lung cancer deaths per 1,000 workers over a lifetime at the 5 micrograms level, compared with 2.1-9.1 lung cancer deaths per 1,000 workers over a lifetime at the 1 microgram level that OSHA had originally proposed in 2004, and compared to the .53-2.3 deaths per 1,000 workers over a lifetime at the Public Citizen-requested standard of .25 micrograms per cubic meter.

    Considering the risk that still exists, even well below the PEL, workers might want to know what they're being exposed to -- and maybe even organize for a lower level than OSHA requires. Hard to do, however, if you don't know what you're being exposed to.

    Now, if someone confronted OSHA on this, the agency might explain that workers already have a right to exposure information under OSHA's access to medical and exposure records standard (29 CFR 1910.1020).

    (I say OSHA might explain this because OSHA didn't bother to explain in the preamble to the final standard why it removed the traditional employee notification requirement from the 2004 proposed standard -- a likely violation of the Administrative Procedures Act which requires the agency to justify any changes from the proposed standard based on evidence or testimony in the record.)

    As I was saying, workers already have the right to be provided with all exposure records within 15 days of requesting them. But once again, as it did in the communication (minus training) paragraph, instead of putting all of the relevant information in one place, OSHA leaves it to workers to figure out that there' s this other standard that provides them access to their exposure records, even when their exposures fall below the PEL.

    Now repeat again what we said at the beginning:

    • Simple and understandable regulations: Good for employers
    • Simple and understandable regulations: Bad for employees.

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