Nov. 7 (Bloomberg) -- An industry association, a labor union and a public health group recently settled a court case over a new standard for worker exposure to a cancer-causing chemical, hexavalent chromium. It was a rare example of agreement in worker-safety regulation.
Under the Oct. 25 settlement, the Surface Finishing Industry Council, whose members use the chemical to coat metals, agreed to move faster to improve ventilation and make other engineering changes to reduce worker-exposure levels. In return, the United Steelworkers union and an ally agreed that workers would have to wear a respirator only for certain jobs, unless they requested one.
``It's a good tradeoff,'' said Scott Nelson, a lawyer with Public Citizen Litigation Group, which worked with the union in getting the Occupational Safety and Health Administration to revise the standard. ``How often when you have zealously guarded positions do you achieve common ground,'' agreed Baruch Fellner, an attorney representing the industry group.
OSHA said last week it was amending the final rule to incorporate the settlement, a promising development.
Unfortunately, it's not a harbinger this election day of a real breakthrough in one of Washington's most-contentious issues.
The problem is that the hex chromium rule covers hundreds of thousands of other workers, and several other court challenges remain. They involve Nelson's clients and other unions, as well as the specialty steel and electric utility industry and the National Association of Manufacturers.
No Cure
More significantly, there is no sign the single agreement will cure the paralysis that for years has crippled the process for setting ``permissible exposure limits'' for chemicals in the workplace.
Exposure limits for some 400 chemicals were set when OSHA was established in 1971. Only about 20 have been reviewed and revised since, according to the agency. In some cases, including hexavalent chromium, the science underlying the rule hasn't been updated since the 1920s.
The American Industrial Hygiene Association, in a 2002 study, called it ``a disservice to worker health that the majority of OSHA permissible exposure limits are based on recommendations that were made almost 30 years ago.''
This means hundreds of companies operating in the shipyard, construction and chemical industries have only to adhere to woefully outdated standards in protecting workers from harmful chemical exposure.
Wholesale Upgrade
In 1988, OSHA proposed a wholesale upgrade of 212 of the existing standards, as well as an additional 164 exposure limits for substances that never had been regulated. Industry groups sued, claiming the proposals were too stringent; the AFL-CIO sued, saying some weren't strong enough and monitoring plans were weak.
In 1992, the U.S. Eleventh Circuit Court of Appeals in Atlanta ruled that while the agency could propose generic rules, it had to justify the limit chosen for each individual chemical.
``The lesson learned was that it was difficult to update 400 permissible exposure limits under the OSHA rulemaking process,'' said Randel Johnson, an official at the Labor Department at that time. He now is vice president of labor, immigration and employee benefits at the U.S. Chamber of Commerce.
There was another unsuccessful attempt in 1996, when OSHA said it intended to update the exposure limits for about 20 substances. That idea never reached the proposal stage.
Canada, European countries, and several states have stricter exposure limits than OSHA's for some chemicals. No one involved in the federal rulemaking process likes the inertia.
Blaming Both Parties
Almost everyone blames the legal requirements the agency has to meet, including exhaustive administrative reviews, such as considering a rule's possible effect on small business. Time- consuming peer reviews of the science backing the rule add to the delays.
``We can't simply say a substance is dangerous,'' said Joseph Woodward, the associate solicitor for OSHA at the Department of Labor. ``We have to do quantitative analysis and determine there is a significant risk. It's not a simple undertaking.''
Peter Lurie, deputy director of Public Citizen's Health Research Group, doesn't buy the explanation. He blames Democrats and Republicans alike for ignoring the issue, and the agency for dragging its feet.
``The underlying problem is both parties are on the take from major industry and, as a consequence, their enthusiasm for regulating those industries is practically nil,'' said Lurie. Some of the few standards that have been updated emerged only after groups like his sued the agency to force action.
Emergency Standard
OSHA has exposure standards for two substances --crystalline silica and beryllium -- on its regulatory to-do list. They have been listed there for years, and some agency work has been completed, but no proposals made.
Public Citizen petitioned the agency for an emergency standard for beryllium in 1999 and 2001. OSHA has said since 1996 that it was a priority to regulate silica.
Unions, employer groups and safety and health professionals formed a committee in 2002 to examine whether the timeliness of exposure standards could be improved by action in Congress.
``We made some progress, but after awhile we ran out of gas, I guess,'' said Frank White, senior vice president of ORC Worldwide, a management-consulting firm in Washington, and a participant in the talks. The group sensed a lack of interest on the part of OSHA and Congress.
Perhaps the recent accommodation between one industry group and union on the hex chromium rule points the way to more bite- sized progress on chemical-exposure standards, White suggested. Maybe OSHA could try proposing 20 at a time.
``At least that's better than one every 10 years,'' he said.
(Cindy Skrzycki is a regulatory columnist for Bloomberg News.)