Federal Court in Pennsylvania Hears Case on Carcinogen Exposure

By | November 24, 2008

Retired Justice Sandra Day O’Connor, hearing cases in a federal appeals court last week, asked why the Labor Department does not lower worker exposure to a known carcinogen.

The advocacy group Public Citizen wants the government to reduce the exposure limit for hexavalent chromium, which is known to carry a significant risk of lung cancer.

Hundreds of thousands of workers are exposed on the job to hexavalent chromium, including welders, ironworkers and aerospace painters.

A government lawyer said the agency has already cut the allowable limit by more than 90 percent to a “permissible exposure limit,” or PEL, of 5 micrograms per cubic meter of air. Public Citizen wants the number lowered to 1 or below.

“You want us to sustain setting it at 5, which makes it more likely that more employees will be injured,” O’Connor asked Labor Department lawyer Gary K. Stearman. “It’s a little bit of a concern to me, and I’d love to know your answer.”

Stearman, representing the Occupational Safety and Health Administration, said that further reductions would bring only slight benefits, at best, and that the agency knows more about the issue than the courts.

“It would only provide a de minimus health benefit,” he said.

However, Public Citizen said that OSHA’s own preliminary risk assessment shows that a 5-microgram limit would likely cause 10 to 45 lung cancer deaths per thousand exposed workers, versus 2 to 9 deaths at the 1-microgram limit.

Stearman, though, questioned whether it is feasible or advisable to set lower limits. Workers in a few industries, including some aerospace painters, would have to wear respirators to comply, a practice that he said raises its own health concerns.

Third U.S. Circuit Judge Marjorie Rendell said the 5 microgram-limit seemed “arbitrary.”

The three-judge panel, which also includes Chief Judge Anthony J. Scirica, did not indicate when it would rule.

OSHA in 1970 set an exposure level of 52 micrograms, but concerns about lung cancer risks led labor unions and Public Citizen to petition for reductions, starting in 1993. OSHA did not act until 2006, when it set the new limit at 5 micrograms, to be phased in over four years.

The judges are now weighing Public Citizen’s appeal of that agency rule.

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