[Federal Register: October 30, 2006 (Volume 71, Number 209)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1910
[Docket No. H054A]
Occupational Exposure to Hexavalent Chromium
AGENCY: Occupational Safety and Health Administration (OSHA),
Department of Labor.
ACTION: Final rule.
SUMMARY: The Occupational Safety and Health Administration (OSHA) is
making a minor amendment to its final rule governing occupational
exposure to hexavalent chromium in general industry, which was
promulgated on February 28, 2006. This amendment implements a
settlement agreement (Agreement) entered into among OSHA, the Surface
Finishing Industry Council (SFIC), Public Citizen Health Research Group
(HRG), and the United Steel, Paper and Forestry, Rubber, Manufacturing,
Energy, Allied Industrial and Service Workers International Union
(Steelworkers) on October 25, 2006, to resolve SFIC's legal challenge
to the standard.
DATES: The amendment in this document will be effective November 29,
2006. Declarations of Party Status must be received by OSHA or
postmarked on or before November 30, 2006.
ADDRESSES: In accordance with the instructions in Section IV of this
notice, Declarations of Party Status must be submitted to Richard
Fairfax, Director of Enforcement Programs, Occupational Safety and
Health Administration, 200 Constitution Ave., NW., Room N3119,
Washington, DC 20210; Fax: (202) 693-1681.
FOR FURTHER INFORMATION CONTACT: Richard Fairfax, Director of
Enforcement Programs, Occupational Safety and Health Administration,
200 Constitution Ave., NW., Room N3119, Washington, DC 20210; telephone
OSHA promulgated its final rule governing occupational exposure to
hexavalent chromium (also written as chromium (VI) or Cr(VI)) in
general industry (the standard) on February 28, 2006. See 71 FR 10100-
385. The standard requires employers to use feasible engineering and
work practice controls to reduce and maintain employee exposures to
Cr(VI) at or below the permissible exposure limit (PEL) of 5 micrograms
per cubic meter of air (5 [mu]g/m3), calculated as an 8-hour
time-weighted average (TWA). If an employer can demonstrate that
feasible engineering and work practice controls are not sufficient to
reduce exposures to or below the PEL, it must use those controls to
attain the lowest levels achievable and then provide affected employees
with supplemental respiratory protection. 29 CFR 1910.1026(f). The
standard also requires employers to provide respiratory protection for
employees during periods when feasible engineering and work practice
controls are being installed, during emergencies, and in certain other
situations. 29 CFR 1910.1026(g)(1). Although employers have until May
31, 2010, to implement feasible engineering controls, they must begin
to comply with respirator requirements by November 27, 2006 (for
employers with 20 or more employees) and May 30, 2007 (for employers
with 19 or fewer employees). 29 CFR 1910.1026(n).
SFIC, a trade association whose members are primarily surface- and
metal-finishing (electroplating) job shops, filed a timely petition for
review of the standard in the United States Court of Appeals for the
Eleventh Circuit. SFIC's petition was consolidated with other petitions
for review of the standard, including one filed jointly by HRG and the
Steelworkers on behalf of workers affected by the standard, in the
United States Court of Appeals for the Third Circuit.
SFIC, OSHA, HRG and the Steelworkers engaged in settlement
negotiations to resolve SFIC's challenge to the standard. The
negotiations resulted in OSHA, SFIC, HRG, and the Steelworkers agreeing
to the settlement being attached to the standard as Appendix A.
Eligible SFIC members and other metal- and surface-finishing job shop
facilities may become parties to this Agreement by following the
instructions in Section IV of this notice.
The Agreement creates an optional, alternative compliance timetable
for metal- and surface-finishing operations at eligible worksites.
Facilities that elect to participate must implement engineering
controls on an expedited schedule (by December 31, 2008), but will have
relief from certain respirator requirements in the interim. (See
Section II below for a detailed summary of the Agreement.) This is not
a material change to the substantive requirements of the standard, and
therefore the amendment does not require a new finding of significant
risk. See Industrial Union Department, AFL-CIO v. American Petroleum
Institute, 448 U.S. 607 (1980). See also 71 FR at 10221-25. Moreover,
this Agreement is conceptually consistent with findings OSHA made
during the original rulemaking--namely that engineering controls are
preferable to respiratory protection and that electroplating job shops
will face unique economic feasibility issues in complying with the PEL
of 5 [mu]g/m\3\ using either respirators or engineering controls.
In the preamble to the final standard, OSHA explained its
longstanding preference for engineering and work practice controls over
respiratory protection. The agency concluded that respirators do not
``provide the same degree of protection'' as other types of controls.
71 FR at 10335. OSHA stated that the ``use of respirators in the
workplace presents a number of independent safety and health
concerns.'' Id. Those concerns include the impairment of vision and
communication, the physiological burdens associated with the weight of
the respirator, and the increased breathing resistance experienced
during respirator use. Id. OSHA also concluded that ``respirators are
inherently less reliable than engineering and work practice controls''
insofar as the effectiveness of respirators depends on appropriate
selection and fit, proper use, and proper maintenance--all conditions
that ``can be difficult to attain, and are subject to human error.''
Id. In contrast, OSHA found that ``[e]ngineering controls are reliable,
provide consistent levels of protection to a large number of workers,
can be monitored, allow for predictable performance levels, and can
efficiently remove a toxic substance from the workplace.'' 71 FR at
In its economic feasibility analysis, OSHA concluded that the
record did not support a finding that the proposed PEL of 1 [mu]g/m\3\
was economically feasible for electroplating job shops. Based upon the
evidence in the record, OSHA found that the cost of compliance with the
proposed PEL of 1 [mu]g/m\3\ could jeopardize the competitive structure
of the industry. Although OSHA ultimately concluded that the final PEL
of 5 [mu]g/m\3\ is economically feasible for electroplating job shops,
the agency also found that the cost of compliance will have a very
significant adverse economic impact on this industry. 71 FR at 10301.
OSHA considered whether permitting the use of respirators in lieu of
engineering controls would alleviate any of the economic burden on this
industry, but concluded that for these facilities ``respirator use
would be almost as expensive as using engineering controls.'' 71 FR at
10310. See also 71 FR at 10301.
In light of the aforementioned findings, OSHA considers it
reasonable to provide eligible facilities with the option of devoting
their resources to implementing engineering controls on an expedited
basis instead of to interim respirator requirements. OSHA believes that
the Agreement and corresponding amendment to the standard will have the
positive result of expediting the installation of engineering controls
for a narrow group of employers with unique economic feasibility
concerns. Although the Agreement will provide participating
electroplating facilities with temporary, limited relief from short-
term respirator requirements, provisions in the Agreement (discussed
more fully in Section II of this notice) ensure that those facilities
will still provide respirators in certain situations, e.g., for certain
metal-finishing tasks when exposures exceed the PEL and for any other
employees who request respiratory protection.
In entering into the Agreement and adopting this amendment, OSHA
did not make and is not presently making any representations regarding
its enforcement of the hexavalent chromium standard in facilities that
are not parties to the Agreement. Moreover, neither the Agreement nor
the corresponding amendment to the standard have any relationship to
OSHA's enforcement of any other occupational safety or health standards.
II. Explanation of the Agreement
Amendment to the Compliance Date Provisions
OSHA is amending the hexavalent chromium standard for general
industry (29 CFR 1910.1026) as follows:
(1) Existing paragraph 1910.1026(n)(3) is being amended to clarify
that facilities that are parties to the Agreement are covered by the
compliance deadline in new paragraph (n)(4) instead of the otherwise
applicable May 31, 2010, compliance deadline for engineering controls;
(2) A new paragraph, 1910.1026(n)(4), is being added to the
standard to provide that facilities that are parties to the Agreement
must implement feasible engineering controls by December 31, 2008; and
(3) The Agreement between OSHA, SFIC, HRG, and the Steelworkers is
being attached to the standard as Appendix A.
Facilities that become parties to the Agreement must comply with
all provisions of the standard in accordance with the compliance dates
set forth in 29 CFR 1910.1026(n), as amended, except that in certain
circumstances (described below) OSHA will not enforce respirator
requirements in those facilities prior to December 31, 2008.
Accelerated Implementation of Engineering Controls
Facilities that become parties to the Agreement must implement
those feasible engineering controls necessary to reduce hexavalent
chromium levels at their facilities to or below the 5 [mu]g/m\3\ PEL,
in accordance with 29 CFR 1910.1026(f)(1), by December 31, 2008. In
fulfilling this obligation, the facilities may select from the
engineering and work practice controls listed in Exhibit A to this
Agreement or adopt any other controls.
With the exception of the six classes of employees described below,
OSHA has agreed not to enforce the respirator protection provisions at
29 CFR 1910.1026(f) and (g) prior to December 31, 2008, for metal- and
surface-finishing operations in facilities that are parties to, and are
complying with, the Agreement. The six classes of employees for which
OSHA will enforce all of the standard's respiratory protection
provisions are as follows:
(1) Employees who are exposed to Cr(VI) in excess of the PEL while
performing tasks described in Exhibit B to the Agreement. These tasks,
as described more completely in Exhibit B, include Cr(VI) chemical
additions, Cr(VI) preparation and mixing, Cr(VI) tank cleaning, and
Cr(VI) painting operations.
(2) Through November 30, 2007, employees whose exposures to Cr(VI)
exceed an interim ``respirator threshold'' of 20 [mu]g/m\3\ (measured
as an 8-hour time-weighted average).
(3) Beginning December 1, 2007, employees whose exposures to Cr(VI)
exceed an interim ``respirator threshold'' of 12.5 [mu]g/m\3\ (measured
as an 8-hour time-weighted average).
(4) Employees who are exposed to Cr(VI) and request a respirator.
(5) Any other employees who are required by their employers to wear
(6) Employees with exposures for which respirators were required
under the previous Cr(VI) standard at 29 CFR 1910.1000, and any other
employees covered by respirator programs in effect on May 30, 2006.
Compliance Plan and Monitoring
The standard requires all employers, including facilities that are
parties to the Agreement, to make an initial exposure determination for
each employee exposed to Cr(VI). Facilities that are parties to the
Agreement may do this using either the monitoring option described at
29 CFR 1910.1026(d)(2)(i) (which involves taking a sufficient number of
personal breathing zone air samples to accurately characterize full
shift exposure on each shift, for each job classification, in each work
area) or the performance-oriented option described at 29 CFR
1910.1026(d)(3) (which involves using any combination of air monitoring
data, historical monitoring data, or objective data sufficient to
accurately characterize employee exposures).
Thereafter, each facility that is a party to the Agreement must
conduct periodic monitoring in accordance with the Scheduled Monitoring
Option provision at 29 CFR 1910.1026(d)(2). Under this provision, if
monitoring reveals employee exposures to be above the PEL, the employer
shall perform periodic monitoring at least every three months. If
monitoring reveals employee exposures to be at or above the action
level of 2.5 [mu]g/m\3\ (as an 8-hour TWA), the employer shall perform
periodic monitoring at least every six months. If monitoring indicates
that employee exposures are below the action level, the employer may
discontinue monitoring for those employees whose exposures are
represented by such monitoring.
The standard requires employers to notify employees whenever an
exposure determination indicates exposures above the PEL. This
notification must be in writing and must describe the corrective
actions being taken to reduce employee exposures to or below the PEL.
29 CFR 1910.1026(d)(4). In accordance with this requirement, facilities
that are parties to the Agreement must prepare a written compliance
plan that sets forth the specific control steps being taken to reduce
exposures to or below the PEL and must update that plan each time
monitoring reveals exposures above the PEL.
Upon request, compliance plans and monitoring results must be
provided to OSHA, affected employees and employee representatives.
In addition to training employees as required by Section 1026(l)(2)
of the standard, facilities that are parties to the Agreement must
train their employees in the provisions of the Agreement within sixty
(60) days of the Opt-in Date (see Section IV). This training must be
provided in a manner and language the employees can understand.
Facilities That Are Not Parties to the Agreement
The terms of the Agreement and the amendment being made to Section
(n) of the standard have no impact on the compliance requirements
applicable to facilities that are not eligible to or do not elect to
become parties to the Agreement. Facilities that are not parties to the
Agreement must comply with all respirator requirements beginning on the
applicable compliance date (November 27, 2006 for employers with 20 or
more employees and May 30, 2007 for employers with 19 or fewer
employees) and will have until May 31, 2010 to implement feasible
III. Eligibility Criteria
An employer's facility is eligible to become a party to the
Agreement if (1) The employer is a member of SFIC or the facility is a
surface-finishing or metal-finishing job shop that sells plating or
anodizing services to other companies; and (2) the facility is within
the jurisdiction of Federal OSHA. The terms of the Agreement apply only
to surface- and metal-finishing operations in those facilities.
IV. Instructions for Eligible Facilities
Employers can make their eligible facilities parties to the
Agreement by completing a Declaration of Party Status. Declarations are
available on OSHA's Web site at http://www.osha.gov/SLTC/hexavalentchromium/hexchrom_settlement.html.
A separate declaration must be completed for each facility. Questions
about eligibility and other inquires about becoming a party to the
Agreement can be directed to OSHA's Office of Health Enforcement at
Completed declarations must be mailed or sent by facsimile to:
Richard Fairfax, Director of Enforcement Programs, Occupational Safety
and Health Administration, 200 Constitution Ave., NW., Room N3119,
Washington, DC 20210; Fax: (202) 693-1681.
Declarations of Party Status must be received by OSHA or postmarked
on or before November 30, 2006. For purposes of the Settlement
Agreement, this deadline is known as the ``Opt-in Date.''
V. Instructions for Facilities in State Plan Jurisdictions
SFIC members and other electroplating job shop facilities within
the jurisdiction of OSHA-approved State occupational safety and health
plans may contact their State plan agencies to determine if their State
programs will honor and implement the terms of this Federal Agreement,
including the amendment to the standard, or take an alternative
position, which may include entering into separate arrangements with
surface- and metal-finishing job shop facilities or their
representatives. The 22 State plans covering the private sector are in
Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland,
Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto
Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington,
and Wyoming. Contact information for these State plans is available on
OSHA's Web site at http://www.osha.gov/fso/osp/index.html.
VI. Pertinent Legal Authority
This amendment is published under authority of the Occupational
Safety and Health Act and the Administrative Procedure Act (APA). See
29 U.S.C. 651(b), 655, and 5 U.S.C. 553. OSHA promulgated the Cr(VI)
standard in February 2006, after extensive notice-and-comment
rulemaking proceedings. For the reasons set forth below, additional
public notice and comment for the amendment described in this notice is
The amendment described in this notice applies only to surface-
finishing and metal-finishing (electroplating) operations in eligible
facilities that voluntarily elect to participate in the alternative
timetable for compliance. It follows that the only entities and persons
affected by this amendment are (1) Employers who operate those
facilities and (2) employees who work in those facilities. To a
significant extent, employers and employees had actual notice of, and
ample opportunity to comment on, this amendment by virtue of the
participation of representatives (SFIC for employers, and HRG and the
Steelworkers for employees) in the settlement negotiations preceding
publication of this notice.
Under the APA, the agency may make a ``good cause'' finding that
notice and comment would be impracticable, unnecessary, or contrary to
the public interest. 5 U.S.C. 553(b)(B). In this instance, OSHA finds
that public notice and comment for this minor amendment is both
unnecessary and impracticable. OSHA's determination that good cause
exists for proceeding without additional notice and comment is based on
the following factors:
(1) This amendment is a minor, non-substantive, and industry-
specific change to the compliance date provisions of the standard. The
vast majority of industries and facilities covered by the standard will
be unaffected by the amendment, and even at affected worksites, the
substantive requirements of the standard remain unchanged.
(2) The amendment simply adds an additional compliance option to
the standard. Given the voluntary nature of the new compliance date
provision, no affected employer can be prejudiced by the amendment. The
terms of the Agreement and the new compliance date provision apply only
to facilities that voluntarily file a Declaration of Party Status with
OSHA. Any facility wishing to adhere to the standard as originally
promulgated may do so.
(3) No employees are adversely affected as a result of the
Agreement or the amendment to the standard. Even at facilities that are
parties to the Agreement, where OSHA will not be enforcing all interim
respirator requirements, each employee who wishes to wear a respirator
has a right to request and receive one under the terms of the
Agreement, and any employee who makes such a request and is exposed
above the PEL will be protected by the full respirator program provided
under the standard. In addition, employees currently covered by
existing respirator programs will continue to receive respiratory
protection. Moreover, OSHA has concluded that employees at
participating facilities--including those who request respirators in
the interim--will benefit from the expedited implementation of
(4) As described more fully in Section I of this notice, this
amendment is consistent with, and an outgrowth of, findings OSHA made
based on the record that was developed, with extensive public input,
during the chromium rulemaking. No new or additional findings are
required to support the amendment.
(5) This amendment arises out of the unique context of settlement
negotiations conducted during litigation over the validity of the
chromium standard. The new compliance date provision is the result of
extensive negotiations between OSHA, SFIC, HRG, and the Steelworkers,
and it resolves SFIC's challenge to the rule.
(6) Time-consuming notice and comment on this technical amendment
to the standard is impracticable given that the benefits the parties
expect to realize from the Agreement depend on immediate or virtually
immediate implementation of the terms of the settlement. Any lengthy
delay associated with additional rulemaking could undermine the
essential (and time sensitive) premise of the Agreement, namely that
participating facilities will implement engineering controls earlier
than otherwise required in exchange for some interim relief from short-
term respirator requirements. In addition, OSHA's enforcement personnel
need to know promptly which facilities are parties to the Agreement.
Only facilities that become parties to the Agreement are eligible for
any relief from the respiratory protection requirements of the
VII. Economic Analysis and Regulatory Flexibility Act Certification
In promulgating the final hexavalent chromium standard in February
2006, OSHA found that the rule was economically and technologically
feasible for all affected industries. See 71 FR at 10256-302. The
amendment described in this notice is a minor change to the compliance
date provision of the standard and applies, on a voluntary basis, to a
very small percentage of all facilities covered by the rule. OSHA has
concluded that this amendment does not affect its economic or
technological feasibility findings. Furthermore, in accordance with the
Regulatory Flexibility Act, OSHA certifies that this amendment will not
have a significant economic impact on a substantial number of small
entities. In fact, this action will increase compliance flexibility for
affected small businesses by offering them an additional compliance
schedule option. The addition of such an option may decrease costs for
some affected employers, and will increase costs for none.
VIII. Environmental Impacts, Unfunded Mandates, Federalism, and
Environmental Health and Safety Risks for Children
In the final hexavalent chromium standard, OSHA also reviewed
environmental impacts, unfunded mandates, and federalism issues, and
considered the impact of the rule on the environmental health and
safety of children. See 71 FR at 10326 (federalism and unfunded
mandates); 71 FR at 10326-27 (protecting children from environmental
health and safety risks); 71 FR at 10327 (environmental impact). For
the reasons noted in section VII above, OSHA finds that the amendment
does not alter the findings or determinations rendered in these
IX. Paperwork Reduction Act
On February 27, 2006, OSHA submitted the information collection
request for the final hexavalent chromium standard to the Office of
Management and Budget (OMB) for approval in accordance with the
Paperwork Reduction Act of 1995. On March 28, 2006, OMB approved the
collections of information contained in the final chromium standard and
assigned them OMB Control Number 1218-0252. The amendment described in
this notice does not change the burden associated with the preparation,
maintenance or disclosure of information as calculated and described by
OSHA at the time the final standard was originally promulgated. See 71
FR at 10325-26.
X. State Plans
In accordance with Section 18(c)(2) of the Occupational Safety and
Health Act (29 U.S.C. 667(c)(2)), when Federal OSHA promulgates a new
standard or a more stringent amendment to an existing standard, the 26
States or U.S. territories with OSHA-approved occupational safety and
health plans must revise their standards to reflect the new standard or
amendment. The State standard must be at least as effective as the
final Federal rule, must be applicable to both the private and public
(State and local government employees) sectors, and must be completed
within six months of the publication date of the final Federal rule.
When OSHA promulgates a new standard, or an amendment to a standard,
which does not impose additional or more stringent requirements than an
existing standard, States are encouraged but not required to take
parallel action. In addition, State plans operate under authority of
State law, and agreements reached by Federal OSHA are not binding on
the States unless they become parties to the agreements or otherwise
specifically agree to their terms.
The State plans were required to adopt OSHA's hexavalent chromium
standard within six months of the Federal promulgation, i.e., by August
28, 2006. The Federal settlement and the corresponding amendment to
OSHA's hexavalent chromium standard provide SFIC members and other
surface- and metal-finishing job shops under Federal OSHA's
jurisdiction with an optional alternative to the compliance timetable
described in Section (n) of the standard as originally promulgated.
This action does not impose additional or more stringent requirements.
Further, the 22 States with OSHA-approved State plans covering private
sector employment were not parties to the negotiations that resulted in
this amendment. Accordingly, State plans are not bound by the Agreement
or obligated to adopt OSHA's amendment to its standard. Nevertheless,
OSHA encourages the 22 State plans that cover both the private and
public (State and local government) sectors (see list in Section V of
this notice) to honor and implement the terms of the Agreement,
including adopting a corresponding amendment to their State standard,
or to take an alternative position, which could include entering into
separate arrangements with surface- and metal-finishing job shops (or
their representatives) in their jurisdiction.
List of Subjects in 29 CFR Part 1910
Cancer, Chemicals, Hazardous substances, Health, Occupational
safety and health.
XI. Authority and Signature
This document was prepared under the direction of Edwin G. Foulke,
Jr., Assistant Secretary of Labor for Occupational Safety and Health,
U.S. Department of Labor, 200 Constitution Ave., NW., Washington, DC
20210. The Agency issues the final sections under the following
authorities: Sections 4, 6, and 8 of the Occupational Safety and Health
Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order No.
5-2002 (67 FR 65008); and 29 CFR Part 1911.
Signed at Washington, DC on October 25, 2006.
Edwin G. Foulke, Jr.,
Assistant Secretary of Labor.
Amendment to the Final Standard
Chapter XVII of Title 29 of the Code of Federal Regulations is to be
amended as follows:
1. The authority citation for Subpart Z of Part 1910 continues to read
Authority: Sections 4, 6, 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, 657: Secretary of Labor's
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR
35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017),
or 5-2002 (67 FR 65008), as applicable; and 29 CFR part 1911.
All of subpart Z issued under section 6(b) of the Occupational
Safety and Health Act, except those substances that have exposure
limits listed in Tables Z-1, Z-2, and Z-3 of 29 CFR 1910.1000. The
latter were issued under section 6(a) (29 U.S.C. 655(a)).
Section 1910.1000, Tables Z-1, Z-2, and Z-3 also issued under 5
U.S.C. 553, Section 1910.1000 Tables Z-1, Z-2, and Z-3 but not under
29 CFR part 1911 except for the arsenic (organic compounds),
benzene, cotton dust, and chromium (VI) listings.
Section 1910.1001 also issued under section 107 of the Contract
Work Hours and Safety Standards Act (40 U.S.C. 3704) and 5 U.S.C.
Section 1910.1002 also issued under 5 U.S.C. 553 but not under
29 U.S.C. 655 or 29 CFR part 1911.
Sections 1910.1018, 1910.1029 and 1910.1200 also issued under 29
Section 1910.1030 also issued under Pub. L. 106-430, 114 Stat.
2. In Sec. 1910.1026:
a. Paragraph (n)(3) is revised.
b. Paragraph (n)(4) is added.
c. Appendix A to Sec. 1910.1026 is added.
The revisions and additions read as follows:
Sec. 1910.1026 Chromium (VI).
* * * * *
(n) Dates * * *
(3) Except as provided in (n)(4), for all employers, engineering
controls required by paragraph (f) of this section shall be implemented
no later than May 31, 2010.
(4) In facilities that become parties to the settlement agreement
included in Appendix A, engineering controls required by paragraph (f)
of this section shall be implemented no later than December 31, 2008.
Appendix A to Sec. 1910.1026
In the United States Court of Appeals for the Third Circuit
Surface Finishing Industry Council et al., Petitioners, v. U.S.
Occupational Safety and Health Administration, Respondent.
[Docket No. 06-2272 and consolidated cases]
Public Citizen Health Research Group et al., Petitioners, v.
Occupational Safety and Health Administration, United States
Department of Labor, Respondent.
[Docket No. 06-1818]
The parties to this Settlement Agreement (``Agreement'') are the
Occupational Safety and Health Administration, United States
Department of Labor (``OSHA''), the Surface Finishing Industry
Council or its successors (``SFIC''), surface-finishing and metal-
finishing facilities which have opted into this Agreement pursuant
to paragraph 7 (``Company'' or ``Companies''), Public Citizen Health
Research Group (``HRG''), and the United Steel, Paper and Forestry,
Rubber, Manufacturing, Energy, Allied Industrial and Service Workers
International Union (``Steelworkers'').
Whereas, On February 28, 2006, OSHA promulgated a revised
hexavalent chromium standard for general industry (``the Standard'')
that includes a permissible exposure limit (``PEL'') for hexavalent
chromium of 5 micrograms per cubic meter (``[mu]g/m\3\'') measured
as an 8-hour time-weighted average (``TWA''), and a deadline of May
31, 2010, for employers to come into compliance with this PEL
through the implementation of engineering controls. The deadline for
compliance with the remaining provisions of the Standard, including
those requiring the use of respiratory protection to comply with the
PEL, is November 27, 2006, for employers with twenty (20) or more
employees, and May 30, 2007, for employers with nineteen (19) or
fewer employees. 29 CFR 1910.1026, 71 FR 10100 (Feb. 28, 2006);
Whereas, SFIC filed a Petition for Review of the Standard in the
Eleventh Circuit that was consolidated with other Petitions in the
Third Circuit (Case No. 06-2272);
Whereas, SFIC filed a Motion for Leave to Intervene in the
matter of HRG's Petition for Review in the Third Circuit (Case No.
06-1818), which has been granted;
Now, therefore, the parties to this Agreement do hereby agree to
the following terms:
1. Term of this Agreement. This Agreement will be effective upon
execution and will expire on May 31, 2010.
2. Accelerated implementation of engineering controls. The
Companies agree that in accordance with 29 CFR 1910.1026(f)(1) they
will implement those feasible engineering controls necessary to
reduce hexavalent chromium levels at their facilities by December
31, 2008, to or below the 5 [mu]g/m\3\ PEL. In fulfilling this
obligation, the Companies may select from the engineering and work
practice controls listed in Exhibit A to this Agreement or adopt any
3. Compliance plan and monitoring. In accordance with 29 CFR
1910.1026(d)(4)(ii), each Company will prepare, and update as
required, a written plan setting forth the specific control steps
being taken to reduce employee exposure to or below the PEL by
December 31, 2008. In addition, Companies will make an initial
exposure determination as required by 29 CFR 1910.1026(d)(1) using
either the procedures for personal breathing zone air samples
described in 29 CFR 1910.1026(d)(2) or the performance-oriented
option described at 29 CFR 1910.1026(d)(3). Thereafter, Companies
will conduct periodic monitoring in accordance with the ``Scheduled
Monitoring Option'' provisions at 29 CFR 1910.1026(d)(2) and related
provisions at 29 CFR 1910.1026(d)(4)-(6). The Companies agree that
upon request compliance plans prepared in accordance with this
paragraph, as well as all monitoring results obtained in compliance
with this paragraph, will be provided to OSHA, affected employees
and employee representatives.
4. Respirator use. The respiratory protection provisions at 29
CFR 1910.1026(f) and (g) will apply to the Companies in accordance
with the terms and dates set forth in the Standard, except that
prior to December 31, 2008, for Companies that are in compliance
with this Agreement, OSHA will enforce those respiratory protection
provisions only with respect to employees who fall into one of the
following six (6) categories: (1) Employees who are exposed to
hexavalent chromium in excess of the PEL while performing tasks
described in Exhibit B to this Agreement; (2) through November 30,
2007, employees whose exposures to hexavalent chromium exceed a
``respirator threshold'' of 20 [mu]g/m\3\ (measured as an 8-hour
TWA); (3) beginning December 1, 2007, employees whose exposures to
hexavalent chromium exceed a ``respirator threshold'' of 12.5 [mu]g/
m\3\ (measured as an 8-hour TWA); (4) employees who are exposed to
hexavalent chromium and request a respirator; (5) any other
employees who are required by the Companies to wear a respirator;
and (6) employees with exposures for which respirators were required
under the previous hexavalent chromium standard (1910.1000) and any
other employees covered by respirator programs in effect on May 30,
5. Employee information and training. Company employees will be
trained pursuant to the provisions of 29 CFR 1910.1026(l)(2). In
addition, the Companies agree to train employees in the provisions
of this Agreement within sixty (60) days of the Opt-In Date (defined
in paragraph 7 of this Agreement). The training regarding this
Agreement shall be provided in language the employees can
6. Enforcement. Within thirty (30) days of the execution of this
Agreement, OSHA will publish a notice in the Federal Register
amending 29 CFR 1910.1026 as follows: (1) A copy of this Agreement
will be attached to the Standard as Appendix A; (2) a new paragraph,
1910.1026(n)(4), will be added to the Standard, and will read: ``In
facilities that become parties to the settlement agreement included
in Appendix A, engineering controls required by paragraph (f) of
this section shall be implemented no later than December 31, 2008'';
and (3) existing paragraph 1910.1026(n)(3) will be amended to read:
``Except as provided in (n)(4), for all employers, engineering
controls required by paragraph (f) of this section shall be
implemented no later than May 31, 2010.''
7. Opt-In Date for Companies to become parties to this
Agreement. The Federal Register notice described in paragraph 6 of
this Agreement will provide notice of the provisions of this
Agreement, and of the revisions to the Standard described in
paragraph 6, and will provide until November 30, 2006, for eligible
facilities to become parties to this Agreement, and be subject to
all of the duties, obligations, and rights herein. The last date for
signing by facilities shall be referred to as the Opt-In Date. The
opt in option will be available on a facility by facility basis and
only to SFIC members and other surface-finishing and metal-finishing
job shop facilities within the jurisdiction of Federal OSHA. (For
purposes of this Agreement, a ``job shop'' is defined as a facility
that sells plating or anodizing services to other companies.)
Moreover, the terms of this Agreement apply only with respect to the
performance of surface-finishing and metal-finishing operations in
those facilities. Although this Agreement applies only to facilities
within the jurisdiction of Federal OSHA, OSHA will encourage States
with OSHA-approved State occupational safety and health plans to
either honor and implement the terms of this Agreement, including
the amendments to the standard described in paragraph 6, or to take
an alternative position, which may include entering into separate
arrangements with surface- and metal-finishing job shop facilities
(or their representatives) in their jurisdiction.
8. Effect on third parties. Nothing in this Agreement
constitutes an admission by SFIC or the Companies that a significant
risk of material health impairment exists for hexavalent chromium
justifying a reduction of the PEL to 5 [mu]g/m\3\. Nor does anything
in this Agreement constitute any other admission by SFIC or the
Companies for purposes of this litigation or future litigation or
standards-setting. This Agreement is not intended to give any rights
to any third party except as expressly provided herein.
9. OSHA inspections. OSHA may do monitoring inspections to
assess compliance with and progress under this Agreement and the
Standard, and nothing in this Agreement limits OSHA's right to
conduct inspections at Companies'' facilities in accordance with the
Occupational Safety and Health Act.
10. Scope of Agreement. The terms of this Agreement apply only
in the circumstances and to the Companies specified herein. In
entering into this Agreement, OSHA is not making any representations
regarding its enforcement policy with respect to either (1) The
hexavalent chromium standard as applied to employers who are not
parties to this Agreement or (2) any other occupational safety or
11. Effect of invalidation of the Standard. If the Standard is
invalidated, nothing in this Agreement shall prevent the application
to SFIC or the Companies of any PEL that is promulgated by OSHA on
remand. This Agreement would not foreclose SFIC or the Companies from
participating in rulemaking proceedings or otherwise challenging any
new PEL promulgated by OSHA on remand.
12. Withdrawal of Petitions and Interventions. SFIC agrees to
move to withdraw its Petition for Review in the above-captioned
case, Case No. 06-2272, within five (5) working days of the
execution of this Agreement. SFIC further will move to dismiss its
motion to intervene in Case No. 06-1818 and all other challenges
simultaneously with its motion to withdraw in Case No. 06-2272 as
13. Attorneys' fees. Each party agrees to bear its own
attorneys' fees, costs, and other expenses that have been incurred
in connection with SFIC's Petition for Review, SFIC's intervention
in HRG's Petition for Review, and the negotiation of this Agreement
up to and including filing of the motions to dismiss.
14. Support of Agreement. In the event that all or any portion
of this Agreement is challenged in any forum, the signatories below
agree to move to intervene in support of this Agreement.
Agreed to this 25th day of October, 2006.
Baruch A. Fellner,
Counsel for SFIC, Gibson, Dunn & Crutcher LLP, 1050 Connecticut
Avenue, NW., Washington, DC 20036, (202) 955-8500.
Lauren S. Goodman,
Counsel for OSHA, United States Department of Labor, Office of the
Solicitor, 200 Constitution Avenue, NW., Washington, DC 20210, (202)
Scott L. Nelson,
Counsel for HRG and the Steelworkers, Public Citizen Litigation
Group, 1600 20th Street, NW., Washington, DC 20009, (202) 588-7724.
Available Engineering and Work Practice Controls
The Companies agree that work towards the implementation of
these available engineering and work practice controls should not be
delayed to accommodate their completion by December 31, 2008. The
Companies are encouraged to implement from among these controls as
soon as practicable.
1. Parts Transfer Practices
Minimize droplet formation. Instruments akin to garden
hoses are used to rinse off parts coming out of chemical baths. This
causes many small droplets to form, which are easily atomized or
vaporized and contribute to airborne chromium concentration. The
industry is currently developing ways to minimize the formation of
small droplets, dripping, or splashing, possibly by reducing hose
Minimize air current flow. Strong air currents across
these droplets may contribute to their vaporization, and therefore
minimizing air current flow across the droplets may reduce airborne
hexavalent chromium levels.
Slow part speeds as feasible. The speed at which parts
are pulled out of a chemical tank causes splashing, which adds to
chromium vaporization. By slowing the speed at which parts are taken
out of tanks, splashing and vaporization can be minimized. The
feasibility of this control must be evaluated in light of the
negative effect on productivity.
2. Plating Bath Surface Tension Management and Fume Suppression
Lower surface tension. Lower surface tension in
chemical baths leads to fewer drops forming. Chromium baths
currently have a surface tension of 35 dynes per centimeter. As a
comparison, water has a surface tension of 72 dynes per centimeter.
Lowering surface tension further would lead to reduced airborne
hexavalent chromium levels.
Fume suppressants. Fume suppressants create a physical
barrier between the chemical bath and the air, which prevents
vaporization. Some suppressants, however, may cause pitting or other
metal damage, and therefore their use is not always possible.
3. Facility Air Disturbance Monitoring
Improvement of local exhaust ventilation (LEV) capture
efficiency. The majority of electroplating facilities are not air-
conditioned. As a result, doors are kept open to let in cool air,
but this causes air currents that prevent the LEVs from performing
efficiently. The use of fans has a similar effect. Industry is
researching how to minimize these air currents so that LEVs can
perform as designed. Such methods may include the use of partitions
to degrade air current flow, or checklists that may include location
and positioning of cross drafts, fans, doors, windows, partitions
and process equipment that Companies can use to audit their
workplaces in order to improve their capture efficiency.
4. Technology Enhancements In Lieu of LEV Retrofitting
Eductors. Many chemical baths are currently mixed via
air agitation: Air pipes bubble air into the tank to keep the
chemicals mixed and to prevent them from settling. An adverse effect
of this agitation is that air bubbles escape at the surface of the
tank, resulting in some chromium vaporization. By using eductors
(horn-shaped nozzles) in tanks, the chemicals flow from a pump to
create solution movement below the surface without the use of air
bubbles, and the amount of chromium vaporization can be
5. Different Means of Chromium Additions
Liquid Chromium. Dry hexavalent chromium flakes are
occasionally added to tanks, which can generate airborne
particulates of hexavalent chromium. Adding liquid chromium at or
near the surface of a tank would lower airborne chromium levels and
reduce splashing from tanks.
Hydration of flakes before addition. To add liquid
chromium to tanks, the dry flakes must be hydrated. Whether this
process is performed by chemical suppliers that provide plating
solutions to metal finishing companies or by metal finishing
companies that have the necessary experience and equipment,
appropriate work practices such as mixing techniques must be
implemented to minimize the potential airborne levels of hexavalent
6. Dust Control
Better housekeeping. Chrome dust that comes off
products that are polished or grinded is actually elemental
chromium, not hexavalent chromium, so polishing and grinding
contribute little to airborne hexavalent chromium levels. However,
Companies should use good housekeeping practices, including wet
mopping, and wet wipedowns, to reduce the amount of dust present.
7. Improvement and Maintenance of Existing LEVs
Improvement and maintenance of existing LEVs. Companies
may repair and maintain their current LEVs. Because the final rule
indicates that at least 75 percent of the industry is in compliance
with the PEL with LEVs working at 40% of capacity, increasing LEV
function can materially affect compliance.
8. Other Controls
Other methods. Companies are constantly determining
best work practices and technological controls through laboratory
research and practical experience. Companies will implement other
engineering and work practice controls as necessary and as
practicable to reduce potential hexavalent chromium workplace
Workplace Tasks Requiring Respirators Where PEL Is Exceeded
Some well-known and relatively few, discrete tasks related to
metal finishing activities result in potentially higher workplace
exposures of hexavalent chromium. Where the applicable PEL for
hexavalent chromium is exceeded, respirators shall be worn to
conduct the following activities:
(1) Hexavalent chromium chemical additions. In order to have the
metal deposited onto the part, hexavalent chromium must be added to
the plating tank periodically. This is a discrete activity that
involves the addition of either a dry flake of hexavalent chromium
chemicals or a liquid solution of hexavalent chromium into the
plating tank. Respirators shall be worn during the period it takes
to add the hexavalent chromium chemical to the tank.
(2) Hexavalent chromium preparation and mixing. Different
mixtures of hexavalent chromium chemicals are needed for different
types of chromium plating processes. For example, hard chromium
plating can require higher concentrations of hexavalent chromium
because a thicker coating and longer plating process may be needed
for the critical product quality and performance. Similarly,
different types of decorative chromium plating processes may need
different levels of hexavalent chromium and other chemicals such as
catalysts. These mixtures can be in the form of dry flakes or liquid
solutions. All of these different hexavalent chromium chemical
mixtures are generally prepared by metal finishing suppliers and
distributors. Some metal finishing companies may also prepare hexavalent
chromium solutions from the dry flakes prior to addition to the plating
tanks. Respirators shall be worn during the period it takes to prepare
these hexavalent chromium mixtures and solutions whether the
activity is conducted at a chemical supplier or a metal finishing
(3) Hexavalent chromium tank cleaning. Occasionally, the tanks
used for chromium plating may need to be emptied and cleaned. This
process would involve the draining of the solution and then the
removal of any residues in the tank. Workers cleaning out these
tanks may have to enter the tank or reach into it to remove the
residues. Respirators (as well as other appropriate PPE) shall be
worn during the period it takes to clean the tanks and prepare them
for use again.
(4) Hexavalent chromium painting operations. Some metal
finishing operations apply paints with higher concentrations of
hexavalent chromium to a line of parts, particularly for aerospace
applications when a high degree of corrosion protection is needed
for critical product performance. Paints are generally applied in
such operations with some type of spray mechanism or similar
dispersion practice. In some instances, it may be difficult to keep
workplace exposures below the PEL for such paint spraying
activities. Respirators shall be worn during such spray painting
[FR Doc. 06-8971 Filed 10-27-06; 8:45 am]
BILLING CODE 4510-26-P