On February 23, 2009, the U.S. Court of Appeals for the Third Circuit (Public Citizen Health Research Group v. Department of Labor, 3d Cir., Nos. 06-1818 and 06-2604, 2/23/09).agreed with OSHA that the new permissible exposure limit (PEL) for hexavalent chromium (5.0 micrograms per cubic meter of air) was adequate, as written in the current OSHA standard.
Public Citizen Health Research Group had argued that the PEL was too high and requested to the court that the PEL be lowered to 1.0 microgram per cubic meter of air because the studies OSHA relied on were flawed. The court rejected that argument and sided with OSHA. The Court decided that lowering the PEL to such a low level, without proper evidence, would be technologically and economically infeasible for many industry sectors.
Therefore, member companies should continue to monitor hexavalent chromium exposures as set in the current OSHA standards. The standards for hexavalent chromium can be found at 29 CFR 1910.1026 for general industry (shops) and 1926.1126 for construction.
Further information on hexavalent chromium can be found on the SMACNA safety webpage at www.smacna.org\safety.
In another recent decision, (Solis v. Summit Contractors Inc., 2009 U.S. App. LEXIS 3755) the Eighth Circuit Court of Appeals reversed the decision of the Occupational Safety and Health Review Commission in the case involving Summit Contractors, Inc., thereby ruling that "controlling" employers may be responsible for the safety and health of other employers' workers on multi-employer worksites.
This court ruling – that OSHA can issue citations to a “controlling” employer on a job site for violations even though that employer’s workers are not exposed to any hazards related to the violations – could have significant impact on many employers across the country if they serve the role as “general contractor” with extended safety responsibilities on a worksite.
This narrow decision does not completely resolve the longstanding disagreement within the industry on how OSHA’s multi-employer citation policy is interpreted. The decision in fact may compel OSHA to revisit rulemaking on this issue.
For a copy of the court decision, visit www.ca8.uscourts.gov/opndir/09/02/072191P.pdf. If you have questions about this information, please contact Mike McCullion, Director of Safety and Health by telephone at (703) 995-4027 or by e-mail at (firstname.lastname@example.org).