According to Christian Richter, principal with The Policy Group, the ruling was handed down by retired U.S. Supreme Court Justice Sandra Day O'Connor, along with justices Scirica and Rendell, who heard oral arguments in November 2008 in the 3rd Circuit Court of Appeals in Philadelphia. The court upheld OSHA's PEL of 5 μg/m3 based on feasibility considerations and turned back all major arguments by interest group Public Citizen. The one argument by Public Citizen to receive a favorable ruling was on the general issue of required employee notification when an operation exceeds the Action Level.
The Court addressed several major issues in its opinion. With respect to finishing operations, based on the extensive and credible economic analysis the NASF developed and submitted to OSHA during the rulemaking process, the Court viewed OSHA's PEL of 5 μg/m3 as defensible based on economic feasibility considerations. A summary of the court's opinion for finishing operations is below:
Public Citizen challenged OSHA’s conclusion that a 1 μg/m3 PEL was infeasible in hard chrome electroplating operations.
OSHA analyzed economic feasibility by questioning whether a standard under consideration would eliminate or alter the competitive structure of an industry. 71 Fed. Reg. 10,301. OSHA determined that the proposed 1 μg/m3 PEL was economically infeasible for electroplating job shops, which are businesses dedicated to providing electroplating services to others. OSHA concluded that these shops could not be expected to absorb the costs to comply with a 1 μg/m3 standard.
It is clear from the record that OSHA considered and explained how costs would affect the job shop electroplating industry as a whole, and was within its discretion to conclude that a 1 μg/m3 PEL would alter the competitive structure of the industry.
“If not for the major effort committed by the NASF and many individual companies and industry volunteer leaders, this decision would likely have gone another way, and OSHA would not have been able to adequately justify for judicial review how costs from the PEL of 1 would affect the finishing industry,” Richter stated. “While this milestone decision doesn't eclipse the immediate economic challenges before the industry, it removes an extremely heavy legal, operational, and financial burden that has been otherwise hanging over the industry for some time.”
More details will be forthcoming. Additionally, the 64-page decision will be posted on the NASF website shortly at www.nasf.org . In the interim, you may direct any inquiries to Christian Richter (crichter@thepolicygroup.com) or Jeff Hannapel (jhannapel@thepolicygroup.com) for more information.
