A federal appeals court on Monday denied a petition by two unions to force the U.S. Occupational Safety and Health Administration to adopt stricter limits on worker exposure to metalworking fluid mist.
A three-judge panel for the U.S. Court of Appeals in Philadelphia ruled unanimously against the United Auto Workers and the United Steelworkers of America, concluding that OSHA did not act unreasonably in December when it denied a 10-year-old request by the unions to lower the permissible level of mist exposure for workers employed in metal machining. The judges said oil mist does appear to cause health problems, but found that other materials pose bigger threats andthat the agency was within its rights to set other priorities.
This is not to say that the health effects of exposure to metalworking fluids are insignificant, but only that OSHA justifiably prioritized the regulation of more severely toxic substances, the court wrote.
Neither the unions nor the agency issued statements about the ruling, and union officials could not be reached for comment late yesterday afternoon. The Independent Lubricant Manufacturers Association, one of several trade groups that filed a friend-of-court brief in support of OSHA, said the outcome of the case will benefit industry and workers alike.
It really is a victory for the workers who handle and use metalworking fluids, ILMA Legal Counsel Jeffrey L. Leiter pointed out in Flashpoint, the association’s weekly newsletter. The rule sought by the unions would not protect them, because it is doubtful a rule could have been promulgated quickly by OSHA, and because systems and other management approaches are more effective in reducing exposures.
Union efforts to lowerthe permissable exposurelimit for oil mist date back at least to 1993, when the UAW petitioned OSHA to lower the current standard of 5 milligrams per cubic meter per eight-hour day. OSHA designated metalworking fluids a regulatory priority in 1995 and appointed an advisory committee two years later. In 1999, the advisory committee – which included five representatives each from industry, labor and the public – unanimously recommended that OSHA take action to reduce worker exposure. They differed, though, on what that action should be. Most committee members called for the exposure standard to be tightened, but others advocated non-mandatory guidelines.
OSHA began that same year to include metalworking fluids on its published agenda, but it took no action, and President George W. Bushs new administration removed the issue from OSHAs agenda in 2001. Only after the unions filed their suit last October did the agency send a letter formally denying the UAWs 1993 request.
The appeals court based its ruling on two main conclusions. The first was that neither the appointment of an advisory panel nor OSHAs later decision to make a priority of metalworking fluids obligated the agency to proceed to make a new rule. Judge Louis H. Pollak said agendas of federal agencies frequently change with presidential administrations.
There is nothing obscure, and nothing suspect, about this phenomenon, Pollak wrote. Thats one of the important things that elections are about. Whether OSHAs current policy priorities are wiser or less wise than those previously pursued is not for a court to determine.
The court also said that the decision not to write a new rule was reasonable, given the evidence about health effects of oil mist and other substances. The court did not buy into the unions most serious health claim – that exposure to metalworking fluids causes cancer. The judges called the cancer evidence equivocal, noting that the advisory committee also concluded that there was no proven link.
The court said evidence does support union claims that metalworking fluids cause dermatitis and respiratory diseases, but it noted that these conditions are seldom fatal. Therefore, it ruled, OSHA should not be second-guessed for deciding to focus more on regulations for substances that do cause fatal ailments. OSHA said it is writing rules for three such materials – hexavalent chromium, crystalline silica and beryllium – and does not have enough staff to work on metalworking fluids at the same time.
OSHA’s 10-year delay in responding to the 1993 petition brought criticism from the court. “…[I]n a perfect world, we would not have had the apparently unnecessary and surely lamentable 10-year delay between UAW’s petition and OSHA’s formal response,” the court wrote. “But in the real world, the Secretary [of Labor] has broad discretion to set the regulatory agenda of the agency, and the decision to direct OSHA’s scant resources elsewhere was neither arbitrary nor capricious.”
While acknowledging that metalworking fluids can cause some health problems, ILMA contends that these are not necessarily related to oil mist concentration levels and that they are best addressed by educating employers and employees and by promoting measures to reduce worker exposure. Leiter said a recently announced alliance between the association and OSHA plans to help businesses prevent dermatitis. He said more research is needed to determine the extent to which oil mist causes respiratory diseases and how best to prevent them.
If OSHA had been required to develop a new rule, it would have incurred a lot of expense on everyones behalf, Leiter told Lube Report. Now that thats not going to happen, I would hope that the unions can work cooperatively with industry to improve the current situation, rather than taking an adversarial position in court.
The 10-page ruling can be viewed online at www.ca3.uscourts.gov/opinarch/034146p.pdf.