David C. Vladeck, a law professor at the Georgetown University Law Center and former director of Public Citizen's Litigation Group, said rulemakings for ethylene oxide, cadmium, formaldehyde and now hexavalent chromium took court intervention to get them completed. Public Citizen and various unions petitioned for most of the rules or appealed standards for not being stringent enough.
"This is an agency being dragged kicking and screaming into rulemaking," Vladeck said. He said the agency has been starved of resources and that policy decisions made by officials of both political parties inhibited work on the hexavalent chromium rule.
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OSHA officials counter that the rulemaking process takes longer because it has become more scientifically complex and the agency's "analytical burden" has increased. For example, the hexavalent chromium proposal is 170 pages long, and 95 percent of it is required economic and risk analysis.
John L. Henshaw, OSHA administrator, said the agency had unrealistic goals in the past and proposals could languish for years on its semiannual regulatory agenda. "When the courts get involved, it's the wrong way of doing things," Henshaw said in an interview. He favors creating a limited regulatory agenda so that the public can trust the agency will meet the deadlines it sets for itself.
Critics say, however, that OSHA's agenda is so spare that it's doubtful any rules will be issued.
The history of this particular rulemaking shows that multiple administrations have not been able to complete a new standard despite plentiful evidence of its danger to workers.
The agency said it had to wait for more definitive studies. It claimed all its resources were diverted to completing an ergonomics rule. When the Bush administration first came to Washington, it stopped work on all ongoing rules.
"The agency acts as if it can't walk and chew gum," said Peter Lurie, deputy director of Public Citizen's Health Research Group. "They can only do one standard at a time. It's an unbelievably low standard for a regulatory agency."
Since OSHA's job is to issue standards that will stand up to judicial scrutiny, some staffers welcome the court's involvement.
Peter Infante, former director of OSHA's Office of Standards Review, said: "The staff is happy to get these suits because it makes the agency do what it is supposed to do." Infante said the agency did a risk assessment on hexavalent chromium, but "it just sat there until we got petitioned and taken to court."
The proposal issued last month is too weak for Public Citizen, but presents problems for the many businesses affected by it.
"We have many concerns about the permissible exposure level in the rule," said Joel Barnhart, vice president of Elementis Chromium, a British company with two production plants in the United States. Barnhart also is chairman of the Chrome Coalition, which was formed in 1986.
The industry met with officials at the Office of Management and Budget's regulatory office twice this year to express its concerns about the cost and feasibility of the rule during a small business review of a draft of the proposal.
The rule is expected to cost industry $223 million annually. In return, the OSHA proposal said, 44 to 161 cases of cancer will be avoided each year, saving $25 million to $701 million. Most of the cost of the rule comes from mandating that employers provide respiratory protection and engineering controls to limit workers' exposure.
Though covered by the new standard, the proposal does not require the construction or maritime industries to monitor exposure to the chemical. That's after they told OSHA their worksites were moved too often to test. The pigment industry argued against being included in the rule, but OSHA proposed coverage.
Lurie of Public Citizen said temporary worksites should call for more frequent monitoring, not a blanket exemption. "It just guts the standard. It's a don't ask, don't tell policy," he said.
The agency is to hold a hearing on the rule in February. If history is any guide, the final standard will be decided by the courts.
