Court of Appeals litigation

You must perform an initial exposure determination for each job or task where employees may be exposed to hexavalent chromium. Employers meet this duty by using either the personal breathing zone sampling procedures in 1910.1026(d)(2) or the performance-oriented option in 1910.1026(d)(3).

• The sampling must identify tasks, employees, and conditions where exposures may occur.
• If you use the performance option, document how your method reliably assesses exposures as required by the standard.

Cited: 1910.1026(d)(1) and the related options in 1910.1026(d)(2) and 1910.1026(d)(3).

You must conduct periodic monitoring according to the “Scheduled Monitoring Option” in [1910.1026(d)(2)], which prescribes follow-up sampling intervals based on measured exposure levels. The rule requires more frequent monitoring if exposures are above the action level or PEL and less frequent monitoring when exposures are consistently below those levels.

• If employee exposures are at or above the action level but at or below the PEL, periodic monitoring frequency is greater than when exposures are below the action level.
• If monitoring shows exposure consistently below the action level, you may reduce the frequency per the procedures in 1910.1026(d)(2).

Cited: 1910.1026(d)(2).

Your written compliance plan must set out the specific engineering and work-practice controls you will use to reduce employee exposures to <= 5 µg/m3 by the compliance date, including schedules and responsible persons. The plan must identify which controls will be implemented (from Exhibit A or other feasible methods), monitoring schedules, and updates as conditions change.

• The plan should document chosen engineering controls, interim measures, and how progress will be measured.
• The company must update the plan as required and make it available to OSHA, affected employees, and their representatives upon request.

Cited: 1910.1026(d)(4)(ii) and the settlement text in Appendix A to 1910.1026.

Under the Settlement Agreement in Appendix A, companies that opted in agreed to implement feasible engineering controls to meet the 5 µg/m3 PEL by December 31, 2008. That accelerated deadline applied to eligible surface-finishing and metal-finishing facilities that became parties to the agreement.

• This deadline is specific to facilities covered by the settlement and appears in 1910.1026(f)(1) and Appendix A to the standard 1910.1026AppA.
• For employers not party to the agreement, the general engineering-control deadline in the standard applies.

Cited: 1910.1026(f)(1) and 1910.1026AppA.

You must train employees on the standard’s required topics in a language and vocabulary they can understand, covering the health hazards, exposure controls, respirator use when applicable, and the employer’s written compliance plan. Training must include the contents of the standard and any specific procedures the employer uses to protect workers.

• Training must be provided at the time of initial assignment and whenever a new exposure or control change occurs.
• Appendix A also requires that training about the Settlement Agreement be provided within 60 days of opting in and in a language employees understand.

Cited: 1910.1026(l) and 1910.1026AppA.

The opt-in was available only to Surface Finishing Industry Council (SFIC) members and other surface-finishing and metal-finishing job shop facilities within Federal OSHA jurisdiction that perform surface- and metal-finishing operations. Each facility had to sign on by the Opt-In Date specified in the Federal Register notice.

• The opt-in was facility-specific and limited to facilities subject to Federal OSHA (not automatically applicable to State-plan jurisdictions unless the State adopted similar terms).
• The Opt-In Date window ended on November 30, 2006 according to the agreement.

Cited: 1910.1026AppA.

Employers can start with the practical controls listed in Exhibit A such as minimizing droplet formation during parts transfer, using fume suppressants or lower surface-tension bath chemistries, slowing part withdrawal speeds, improving local exhaust ventilation capture, and using eductors instead of air agitation. These methods reduce vaporization and airborne hexavalent chromium at the source or improve capture.

• Example tactics: lower hose pressure to reduce atomization; install partitions to limit cross drafts; use eductors to mix baths without air bubbles; hydrate flakes before adding or use liquid chromium to avoid dust.
• Exhibit A encourages prompt implementation of feasible controls rather than waiting for large retrofits.

Cited: 1910.1026AppA Exhibit A and the engineering-control duty in 1910.1026(f).

Respirators must be used for the specific discrete tasks listed in Exhibit B when the PEL is exceeded during those tasks (for example: chemical additions, preparation/mixing, tank cleaning, and certain painting operations). The settlement clarifies that respirators are required during the period that these tasks cause exposures above the PEL.

• Exhibit B lists tasks where exposures can spike and respirators must be worn while the task is being performed if the PEL is exceeded.
• Employers must also follow the respirator program provisions in 1910.1026(f) and 1910.1026(g).

Cited: 1910.1026AppA Exhibit B and 1910.1026(f).

Training required by the standard and the Settlement Agreement must be provided in a language and manner that employees can understand. Appendix A specifically requires training about the Agreement to be given within 60 days of the facility’s Opt-In Date in language the employees can understand.

• This means translated materials or interpreters should be used when necessary to ensure comprehension.
• The general training requirements are in 1910.1026(l).

Cited: 1910.1026(l) and 1910.1026AppA.

You must keep monitoring records and the written compliance plan and provide them to OSHA, affected employees, and employee representatives upon request. Appendix A also requires companies operating under the settlement to provide monitoring results and compliance plans to OSHA and employees if requested.

• Maintain exposure monitoring records for the durations required by the standard and make them available to employees and their representatives.
• The compliance plan must be updated as necessary and be available on request.

Cited: 1910.1026(d)(4), 1910.1026(d)(5), 1910.1026(d)(6), and 1910.1026AppA.

Yes. Companies may adopt any feasible engineering and work-practice controls, including those listed in Exhibit A or other controls, so long as they reduce exposures to the PEL by the deadline. The agreement explicitly allows selection from Exhibit A or adoption of alternative controls.

• Document chosen alternatives in the written compliance plan per 1910.1026(d)(4)(ii).

Cited: 1910.1026AppA and 1910.1026(d)(4)(ii).

For facilities that became parties to the Settlement Agreement, [1910.1026(n)(4)] required implementation of engineering controls no later than December 31, 2008, rather than the general May 31, 2010 deadline in the standard. This amendment applied only to facilities that opted into the agreement.

• Employers not party to the agreement remained subject to 1910.1026(n)(3) and the May 31, 2010 date.

Cited: 1910.1026AppA and the related 1910.1026(n).

Before December 31, 2008, OSHA limited enforcement of the respirator provisions to six categories of employees at opt-in companies, including those doing Exhibit B tasks when the PEL is exceeded, employees exceeding specified respirator thresholds (20 µg/m3 through Nov 30, 2007 and 12.5 µg/m3 from Dec 1, 2007), employees who request respirators, those required by the employer to wear them, and employees covered by prior programs. Only these categories were the focus of respiratory enforcement at opt-in facilities during that interim period.

• The categories and thresholds are described in Appendix A to the standard.

Cited: 1910.1026AppA and respirator duties in 1910.1026(f).

Respirators are required only for the period it takes to perform the discrete task listed in Exhibit B when the PEL is exceeded. The Exhibit specifies that respirators shall be worn during the period of the task that causes the elevated exposure.

• Example: respirators are required during the chemical addition event or while cleaning a tank, not necessarily for the entire shift if exposures are otherwise below the PEL.

Cited: 1910.1026AppA Exhibit B and respirator provisions in 1910.1026(f).

Yes. Improving and maintaining existing LEVs to increase capture efficiency can materially reduce exposures and in many cases help achieve compliance without full retrofitting. Exhibit A explicitly encourages improving and maintaining current LEVs because increased function can significantly affect compliance.

• Practical steps include repairing ducts, repositioning hoods, reducing cross drafts, and following LEV maintenance checklists.

Cited: 1910.1026AppA Exhibit A and the engineering control requirement in 1910.1026(f).

Yes. Good housekeeping—such as wet mopping and wet wiping—is recommended to reduce dust, even though polishing and grinding produce mostly elemental chromium and contribute little to airborne hexavalent chromium. Exhibit A recommends these practices to lower overall dust levels and potential contamination.

• Use wet methods and avoid dry sweeping to limit dust resuspension.

Cited: 1910.1026AppA Exhibit A Dust Control and general control duties in 1910.1026(f).

OSHA retains the right to inspect facilities and may conduct monitoring inspections to assess compliance and progress under the Settlement Agreement and the standard. Nothing in the Agreement limits OSHA’s inspection authority under the Occupational Safety and Health Act.

• Employers should be prepared to provide monitoring results and compliance plans upon OSHA request.

Cited: 1910.1026AppA Enforcement and Inspections and general inspection authority under OSHA (1910).

Yes. The Agreement applies only within Federal OSHA jurisdiction; OSHA will encourage State-plan states to honor and implement the terms, but those States may take an alternative approach, including entering into separate arrangements or choosing not to adopt the Agreement. Employers in State-plan states must follow their State’s requirements, which may differ.

• Check your State-plan agency for whether it adopted the Appendix A terms or has a different enforcement position.

Cited: 1910.1026AppA and the general 1910 program structure.

Switching from air agitation to eductors (horn-shaped nozzles) reduces bubbling at the surface and can significantly lower chromium vaporization. Exhibit A highlights eductors as a technology enhancement that moves solution without creating air bubbles at the surface.

• Eductors mix solution below the surface, reducing vapor release; evaluate feasibility and maintenance needs before installation.

Cited: 1910.1026AppA Exhibit A Technology Enhancements and the engineering-control requirement in 1910.1026(f).

If periodic monitoring shows exposures consistently below the action level, an employer may reduce monitoring frequency per the reduction procedures in [1910.1026(d)(2)-(3)], but must follow the performance option documentation if that approach is used and continue to reassess when conditions change. You cannot simply stop monitoring without following the standard’s criteria for reducing frequency.

• Maintain records of prior monitoring and the rationale for reduced frequency and resume monitoring if changes in process or exposure are suspected.

Cited: 1910.1026(d)(2) and 1910.1026(d)(3).