The metal hexavalent chromium, emitted as a fume during chrome plating and certain welding operations and used in products such as specialty paints, can cause cancer. The risk at OSHA’s original exposure limit was so extreme — as many as one worker in three would likely get cancer from inhaling that much chromium over their entire careers — that advocacy group Public Citizen and a union sued in 2002 to get the agency to act.
Companies, sensing a threat, had mobilized years earlier. They argued there was no significant risk, criticized studies that suggested otherwise and lobbied to keep the standard unchanged.
This is how industries typically react. It’s playing out again as OSHA tries to update its limit for lung-damaging silica. Thousands of lives have been lost to such delays.
What makes the chromium case stand out: Advocates and federal officials eventually got their hands on the chromium lobby’s internal documents. They offer a revealing look at how companies work to beat back protections meant to keep people from dying.
In 1996, according to the minutes of one Chrome Coalition meeting, companies and their consultants discussed how they might “forestall the rulemaking.” The plan included attacking health studies showing harm and preparing for a lawsuit.
No one made even a passing mention of what would be best for workers’ health. Another industry document said only a comparatively modest cut in the chromium limit would be acceptable because it could be handled by modern facilities “without major additional investment.”
According to testimony in an enforcement action later filed by the U.S. Environmental Protection Agency, the coalition spent an estimated $500,000 on a lung-cancer study of chrome workers to call into question earlier research. But the results provided “strong support for the inadequacy of the current standard” and even raised questions about whether the limit OSHA proposed was protective enough, according to a 2006 paper co-authored by David Michaels, an occupational health expert who since 2009 has headed OSHA.
The Chrome Coalition withheld that study from federal agencies. Instead, Michaels wrote, it massaged the data and released certain parts that seemed to support its position.
The coalition no longer exists, but the chromium companies did get something for their efforts. OSHA feared that certain firms couldn’t afford to reduce exposures to the proposed limit of 1 microgram per cubic meter of air — as the chromium industry argued — so in 2006 the agency set the new standard at 5 micrograms.
That means workers can still legally be exposed to chromium levels that, by OSHA’s reckoning, would give up to one in 22 of them cancer over a working lifetime. That’s far less protective than OSHA typically aims for.
Adam M. Finkel, who worked on the chromium rule while directing OSHA’s health standards program from 1995 to 2000, calls the adopted limit “shamefully weak.”
The fact that it got through at all qualifies as a rare victory. Few of OSHA’s 470 exposure limits have been changed since they were adopted in 1971.
Trade groups have played an outsize role in that, too. They challenged rule after rule in court, leaving OSHA hemmed in by decisions that contribute to an expensive, years-long slog to update a single health standard.
One turning point came in 1980.
After federal officials concluded that benzene can cause leukemia, OSHA lowered its exposure limit in 1977 from 10 parts per million to 1. The American Petroleum Institute, which three decades earlier conducted an internal toxicological review that concluded “the only absolutely safe concentration for benzene is zero,” sued to get the new standard overturned.
A divided Supreme Court did so, finding that OSHA had not demonstrated that the standard remedied a “significant risk.” The decision — opposed by four of the justices, who contended it endangered workers and disregarded the law — affected more than just benzene. OSHA could no longer declare that carcinogen exposure must be as low as possible. Ever since, the agency has spent time on complex analyses that estimate the number of workers at risk.
OSHA’s later benzene analysis estimated that for every 1,000 people exposed over a working lifetime to concentrations at the original standard, 95 would likely fall ill with leukemia as a result — nearly 1 in 10. Prodded by unions, the Reagan administration adopted a 1 part-per-million standard in 1987 that stuck.
The decade-long wait came at a cost. A former OSHA official and two occupational medicine experts separately estimated that several hundred workers would die of cancer as a result.
The American Petroleum Institute did not respond to requests for comment. But in a statement after the Supreme Court ruling, the group’s then-president, Charles J. DiBona, said the case demonstrated the importance of regulators relying on “scientific facts rather than pure speculation.”
“The issue was never whether benzene is toxic,” he said. “The petroleum industry itself identified it as toxic years ago and imposed its own protective standards long before the government showed any interest in regulating it.”
In the 1980s, frustrated with the slow pace of health rule revisions, Reagan-appointed officials tried to fix everything in one fell swoop.
Most of OSHA’s exposure limits from 1971 were carbon copies of ones recommended by the American Conference of Governmental Industrial Hygienists, a group of experts that regularly updates its numbers. OSHA decided to launch a rulemaking to adopt the nonprofit’s most recent recommendations.
OSHA’s 1989 rule added new limits or tightened existing ones for 376 chemicals and won praise from big industry groups, including what is now the American Chemistry Council. The early criticism came almost entirely from unions, which contended that standards remained too lax.
But other trade groups, including the American Iron and Steel Institute and the Society of the Plastics Industry, ultimately filed suit to overturn some of the new limits.
The AFL-CIO filed suit, too, but to get OSHA to toughen some of the rules, not toss them.
Business interests upset about tighter limits won that battle in a big way. The U.S. Court of Appeals in Atlanta vacated everything. The agency’s economic-impact analysis and other studies, prepared with less detail so all 376 chemicals could be handled at once, weren’t sufficient, the judges ruled.
“It may well be, as OSHA claims, that this was the only practical way of accomplishing a much needed revision of the existing standards and of making major strides towards improving worker health and safety,” the judges wrote in their 1992 decision. But the 1970 Occupational Safety and Health Act doesn’t allow that flexibility, they added.
As the congressional Office of Technology Assessment noted three years later, “Arguably, OSHA faces rulemaking requirements among the most demanding of all federal agencies with health, safety and environmental regulatory responsibilities.”
OSHA had estimated that the 1989 update would save 683 lives a year at an annual cost of $6,000 per affected plant. The Court of Appeals judges offered a tip: “Before OSHA uses such an approach, it must get authorization from Congress.”
A generation later, Congress has yet to give OSHA that authority. In fact, it’s hobbled the agency even further.