Chrome Comes Under Fire...Again

On October 4 of this year, the xxxU.S. Department of Labor's Occupational Safety and Health Administration (OSHA) proposed a new standard for occupational exposure to hexavalent chromium, one which seeks to lower the permissible exposure limit (PEL) from 52 ug/m³ to 1 ug/m3 as an eight-hour time weighted average.

While the proposal itself comes as no surprise—it is the product of a court order issued in 2002 by the U.S. Court of Appeals for the Third Circuit in response to a joint lawsuit filed by Public Citizen and the Paper, Allied-Industrial, Chemical and Energy Workers International Union (PACE)—the limits proposed by OSHA have had a jaw-dropping effect on many within the chrome plating industry, which includes decorative chrome plating, hard chrome plating, chromating processes and anodizing.

"The risks involved in the occupational use of hexavalent chromium can be serious and potentially life threatening," wrote OSHA Administrator John Henshaw in a press release dated October 1. "This proposed rule is both economically and technologically feasible and will substantially reduce the risk to workers potentially exposed to hexavalent chromium."

Not everyone agrees with Henshaw's assessment. Much like EPA's Metal Products and Machinery Rule, which was a source of frustration and contention for finishers between 2000 and 2002, OSHA's proposal is being criticized for its reliance on inaccurate data and a proposed limit that is unnecessarily stringent and is not technically or economically viable.

Fuzzy Math?

"We don't believe [the proposed limit] can be met, no matter what companies spend on control measures," says Christian Richter, president of The Policy Group, a Washington, DC-based regulatory analysis and government affairs firm that acts on behalf of the metal finishing industry.

OSHA's proposed limit hinges in large part on what the agency has deemed an "acceptable" number of lung cancer deaths (per 1,000 workers) due to hex chrome exposure (see Figure 1). The administration assumes a linear correlation between the lung cancer deaths associated with exposures to hexavalent chromium concentration two or three times higher than the current PEL and with the proposed limit. "They essentially charted the numbers from the existing limited data set and drew a straight line to arrive at the new PEL," says Jeff Hannapel, also of The Policy Group.

Critics say this approach is problematic on several fronts. First, while it's a matter of much debate, OSHA has not scientifically demonstrated that there is linear correlation between lung cancer deaths associated with exposures that substantially exceed the existing PEL and the number of lung cancer deaths that could be anticipated under the proposed PEL. In other words, there is likely as threshold exposure level considerably higher that the proposed limit of one ug/m3, below which no measurable additional health benefits are realized. Many believe that the current industry practices and the existing PEL is protective of workers' health.

Another problem, which seems to occur with regularity in government-sponsored studies, is that the data that OSHA is relying on is suspect. Some of the information being used by OSHA is as much as 50 years old and doesn't accurately reflect conditions in today's job shop environment. "One academic who works in this area has noted that some of the hexavalent chrome concentrations cited in the studies are so high that you wouldn't be able to see through the cloud," Hannapel says. "By taking yesterday's numbers and implying that that's what's going on in job shops today, you skew the entire equation."

Finally, there is an issue with the way that OSHA has chosen to interpret the data and arrive at its conclusions. As part of the SBREFA panel process—a function of the Small Business Regulatory Enforcement Fairness Act of 1996, which requires that EPA and OSHA receive input from affected small businesses before proposed rules are published—the SBA hired an independent consultant to review the same information that OSHA had used in its analysis. That consultant did so and concluded that a decrease to 23 ug/m³—a still significant, but not crippling reduction of more than 50%—would be protective of workers' health.

The Divide Widens

Though the arguments about the data and techniques used to generate OSHA's proposed PEL are perhaps most explosive, other areas of discordance exist as well. Take for instance the agency's initial claim that finishers could meet the proposed limits with an annual investment of $5,000. Though OSHA revised that number to $14,000 following the recent SBREFA process, the industry's own research suggests that the investment required to approach the proposed limit is closer to $300,000 per year. That's a tremendous disparity.

 

Figure 1: Expected Excess Lung Cancer Deaths per 1,000 Workers
	Cr(VI) concentration, ug/m3	20-year exposure	45-year exposure
Current PEL.........	52 20 10 5.0 2.5	43-198 17-83 9-43 4.3-22 2.1-11	101-351 41-164 21-86 10-45 5.3-23
Current PEL.........	1.0 0.5 0.25	0.85-4.4 0.43-2.2 0.21-1.1	2.1-9.7 1.1-4.6 0.53-2.3

Making matters even more complicated is the fact that, while the proposed PEL is 1 ug/m3, chrome platers would need to maintain a PEL less than one-quarter of that amount in order to remain compliant and avoid costly investments in order to meet regulatory requirements.

Richter explains that OSHA's proposed standard includes a so-called "action level" of 0.5 ug/m³.

Finishers who fail to meet the action level would be required to make costly investments in medical monitoring, respiratory protection, separate change-rooms, protective clothing and other areas. But even operating at the action level is not enough. "If I'm a finisher and I want to stay well below the 0.5 action level," he says, "I'm going to need to design my engineering controls to achieve a level of approximately 0.2 ug/m3 or lower to ensure compliance 100% of the time."

"The proposed levels are so low," says Hannapel, "I wouldn't guarantee that anyone could meet the requirements, regardless of the investment they make."

No Easy Answers

While the OSHA proposal is now receiving a lot of attention, Richter says that the Policy Group has been working closely with industry leadership to devise an overarching strategy that will not only advance the interests of the metal finishing industry, but will ask fundamental questions about the basis for OSHA's lowering of the PEL, such as the technical, policy and economic issues surrounding the PEL proposal.

Components of that strategy include: increasing the resources available in the industry's chrome defense fund and educating finishers on the proposed limits. One such opportunity for the latter is the recently-added panel discussion at Finishing Tech 2004 (scheduled to take place on November 17, after this issue goes to press). Richter says that the industry's government relations efforts on this rule are also reaching beyond the metal finishing industry to other affected parties—such as the shipyard, welding, food processing, stainless steel, paints and coatings, aerospace and construction industries—in order to share information and present a cohesive argument.

Figure 2: Important Dates for Finishers Affected by Proposed Standard

January 3, 2005 Comments on the proposed rule making must be submitted to OSHA. February 1, 2005 Informal public hearing on the proposed standard in Washington, D.C. Parties interested in presenting testimony at the hearing must notify OSHA of their intentions to do so by December 3, 2004.

Metal finishers could discover an ally in the Federal Government itself. "We've had conversations with the Department of Defense," says Richter, noting that many military maintenance depots have affected processes such as metal finishing, fabrication and welding. "The new limits could prove to be a very expensive proposition for the Federal Government. We believe that both the private sector and public sector will need to be engaged, and we're setting up discussions on both of those fronts."

Richter says that OSHA also needs to examine the topic of chrome usage in its broader context. "One of the things that the agency needs to understand," he says, "is that if the proposal goes through in its current form, chrome will still be plated, but not here [in the U.S.]. It will be plated in other places around the world that do not have the kind of strong worker protections that we already have in our country."

Likewise, says Richter, metal finishers—even as they defend the future of chrome plating—need to continue with the forward-thinking approach that has helped define the industry. "What technologies are being developed and marketed as replacements for chrome? Are they viable? Can chrome ever be replaced? Should chrome ever be replaced? These are all valid questions," he says. "The current [OSHA] issue is only one dimension of a multi-dimensional challenge that the industry is facing on a number of fronts, including economics, health and environment, technology and innovation."