33. The duties in the United States

Section 31 names the reasons why this analysis cites German regulations. For companies in the United States that names the benchmark, not the applicable order. Directive 2004/37/EC and the German Hazardous Substances Ordinance do not apply there, and a body of rules that names the case dealt with here, as the German TRGS 561 does under 5.9.3, does not exist. The duties follow from the Occupational Safety and Health Act and from three standards issued under it, and they are framed without naming this case. [151, 153]

The statutory base and the general duty clause

Section 5(a) of the Occupational Safety and Health Act of 1970 contains two duties. Under number 1 the employer “shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees”, and under number 2 he “shall comply with occupational safety and health standards promulgated under this Act”. [151]

For chromium(VI) the second of these is the operative duty, because a standard exists. The Field Operations Manual of the Occupational Safety and Health Administration states the limit expressly: “The general duty clause shall be used only where there is no standard that applies to the particular hazard and in situations where a recognized hazard is created in whole or in part by workplace conditions or practices that are not covered by a standard.” The exposure as such is covered by a standard, so it is not the general duty clause that applies to it. [152]

The general duty clause nevertheless matters here, because of the term recognized hazard and what the same manual says about it. Four elements must be established: that the employer failed to keep the workplace free of a hazard to which his employees were exposed, that the hazard was recognized, that it was causing or was likely to cause death or serious physical harm, and that “There was a feasible and useful method to correct the hazard.” Recognition “can be established on the basis of employer recognition, industry recognition, or “common-sense” recognition”. [152]

Among the means by which industry recognition can be established, the manual lists “Manufacturers’ warnings on equipment or in literature that are relevant to the hazard”, alongside statements by safety or health experts familiar with the relevant conditions, evidence that other members of the industry have implemented abatement methods, and studies conducted by the industry. The documents evaluated in Section 16 are warnings of precisely that class, issued by manufacturers of engines, trucks, insulation materials, gaskets and refractory products between 1990 and 2025. Whether they establish recognition in a particular employer’s relevant industry is a question of assessment in the individual case. That the manual names this class of document as a means of establishing it is not. [152]

The manual also provides for the case in which the harm appears only later. Where illness or death will occur only after the passage of time, it requires that regular and continuing employee exposure at the measured levels could reasonably occur, that an illness reasonably could result from such exposures, and that “If illness does occur, its likely result is death or serious physical harm.” American practice therefore has a construction for a latency of years, as the German endangerment offence described in Section 30 does. [152]

The standard applies without anyone naming the source

The scope of 29 CFR 1910.1026 is set in paragraph (a)(1): “This standard applies to occupational exposures to chromium (VI) in all forms and compounds in general industry, except:”. The exceptions are the application of pesticides, exposures to portland cement, and the case in paragraph (a)(4), where the employer has objective data showing that a material or a process “cannot release dusts, fumes, or mists of chromium (VI) in concentrations at or above 0.5 µg/m3 as an 8-hour time-weighted average (TWA) under any expected conditions of use”. [153]

Two things follow from this wording. Chromate that forms at the interface between insulation material and a chromium-alloyed hot component is chromium(VI) in a form and a compound, so the standard covers it by its own scope, whether or not anyone has identified it. And the only route out of the standard runs through objective data covering every expected condition of use. For a compound that forms in service, such data would have to cover the formation itself. The manufacturer documents evaluated in Section 16 and the interface evidence in Section 10 point the other way. [153]

An employer who has never asked whether chromium(VI) forms on his insulated hot components is therefore not outside the standard. He is inside it without having determined his exposures.

Three standards, one limit value

Hexavalent chromium was regulated in the United States by a single final rule, published at 71 Federal Register 10100 on 28 February 2006 and effective on 30 May 2006, which created three standards: 29 CFR 1910.1026 for general industry, 29 CFR 1915.1026 for shipyard employment, marine terminals and longshoring, and 29 CFR 1926.1126 for construction. [156, 153, 154, 155]

All three set the same limit value. Paragraph (c) of each reads: “The employer shall ensure that no employee is exposed to an airborne concentration of chromium (VI) in excess of 5 micrograms per cubic meter of air (5 µg/m3), calculated as an 8-hour time-weighted average (TWA).” The definition in paragraph (b) sets the action level: “Action level means a concentration of airborne chromium (VI) of 2.5 micrograms per cubic meter of air (2.5 µg/m3) calculated as an 8-hour time-weighted average (TWA).” [153, 154, 155]

In the comparison in Section 18 the American permissible exposure limit of 5 µg/m³ is the same figure as the European limit value of 0.005 mg/m³ that has applied since 17 January 2025. It is five times the French and Dutch value of 0.001 mg/m³ and five times the assessment benchmark of the German TRGS 561. Within North America, the Quebec value for water-insoluble chromium(VI) compounds is likewise 0.001 mg/m³. [153, 175, 170]

Exposure determination and the objective data option

Paragraph (d)(1) of all three standards reads: “Each employer who has a workplace or work operation covered by this section shall determine the 8-hour TWA exposure for each employee exposed to chromium (VI). This determination shall be made in accordance with either paragraph (d)(2) or paragraph (d)(3) of this section.” Paragraph (d)(2)(i), the scheduled monitoring option, requires initial monitoring “on the basis of a sufficient number of personal breathing zone air samples to accurately characterize full shift exposure on each shift, for each job classification, in each work area”. Paragraph (d)(3), the performance-oriented option, permits the determination “on the basis of any combination of air monitoring data, historical monitoring data, or objective data sufficient to accurately characterize employee exposure to chromium (VI)”. [153, 155]

Section 17 of this analysis bears directly on both options. For insulation material matrices there is no standardized method, transferred procedures give results that are too low, and a result without a statement of the recovery rate on the same matrix says nothing about the content. Historical data and objective data obtained in that way carry the same defect as a measurement obtained in that way. The performance-oriented option is therefore the point at which the analytical problem becomes a compliance problem.

One difference between the standards concerns the notification of results. In general industry the employer has 15 work days; in shipyard employment and in construction paragraph (d)(4)(i) requires notification “Within 5 work days after making an exposure determination”. [153, 154, 155]

Regulated areas, housekeeping and the compressed air prohibition exist only in general industry

Paragraph (e)(1) of the general industry standard requires: “The employer shall establish a regulated area wherever an employee’s exposure to airborne concentrations of chromium (VI) is, or can reasonably be expected to be, in excess of the PEL.” Paragraph (j)(1) requires that “All surfaces are maintained as free as practicable of accumulations of chromium (VI)” and that “All spills and releases of chromium (VI) containing material are cleaned up promptly”. Paragraph (j)(2)(iii) prohibits the use of compressed air to remove chromium(VI) from any surface unless it is used together with a ventilation system designed to capture the dust cloud created, or no alternative method is feasible. [153]

Neither the shipyard standard nor the construction standard contains a counterpart to either paragraph. In 29 CFR 1915.1026 and 29 CFR 1926.1126 the lettering runs from scope and definitions through the limit value, exposure determination, methods of compliance, respiratory protection, protective work clothing, hygiene areas, medical surveillance, hazard communication and recordkeeping to the dates, with no paragraph on regulated areas and no paragraph on housekeeping. [154, 155]

For the work described in this analysis that gap is not a formality. Ship engines, boiler and pipework insulation on board, and the dismantling of insulated hot components during an overhaul fall under the shipyard standard, where no zoning requirement, no duty to keep surfaces free of accumulations and no prohibition on blowing down with compressed air applies. Carry-over out of the working area, which Section 22 describes, is precisely the mechanism that these three provisions address in general industry.

Protective clothing, hygiene and medical surveillance

Paragraph (h)(1) requires: “Where a hazard is present or is likely to be present from skin or eye contact with chromium (VI), the employer shall provide appropriate personal protective clothing and equipment at no cost to employees, and shall ensure that employees use such clothing and equipment.” Paragraph (i)(1) requires change rooms where protective clothing is required and washing facilities where skin contact occurs, in each case in conformance with 29 CFR 1910.141. Paragraph (i)(2) requires that change rooms have separate storage for protective clothing and for street clothes and that these facilities “prevent cross-contamination”, and paragraph (i)(3)(i) requires “readily accessible washing facilities capable of removing chromium (VI) from the skin”. [153]

The dermal route is thus covered in substance. The threshold at which it is covered is the one set by paragraph (h)(1), that is, a hazard that is present or likely to be present from skin contact. Whoever has not determined whether chromium(VI) is on the surface of the component has not reached that question either.

Medical surveillance is tied to the action level. Paragraph (k)(1)(i) requires it for all employees “Who are or may be occupationally exposed to chromium (VI) at or above the action level for 30 or more days a year”, for those experiencing signs or symptoms of the adverse health effects associated with chromium(VI) exposure, and for those exposed in an emergency. Paragraph (k)(3) sets out the contents, among them a medical and work history “with emphasis on: Past, present, and anticipated future exposure to chromium (VI); any history of respiratory system dysfunction; any history of asthma, dermatitis, skin ulceration, or nasal septum perforation; and smoking status and history” and a physical examination of the skin and the respiratory tract. [153]

The chain is therefore closed in one direction and open in the other. Where exposure has been determined, the standard sets out what has to follow. Where it has not been determined, the thirty days above the action level are never counted, and the surveillance that the finding would trigger never begins.

No duty to substitute

Paragraph (f)(1)(i) of the general industry standard sets the order of measures: “Except as permitted in paragraph (f)(1)(ii) and paragraph (f)(1)(iii) of this section, the employer shall use engineering and work practice controls to reduce and maintain employee exposure to chromium (VI) to or below the PEL unless the employer can demonstrate that such controls are not feasible. Wherever feasible engineering and work practice controls are not sufficient to reduce employee exposure to or below the PEL, the employer shall use them to reduce employee exposure to the lowest levels achievable, and shall supplement them by the use of respiratory protection that complies with the requirements of paragraph (g) of this section.” Paragraph (f)(2) adds: “The employer shall not rotate employees to different jobs to achieve compliance with the PEL.” [153]

The word substitution does not occur in 29 CFR 1910.1026, nor in 29 CFR 1915.1026, nor in 29 CFR 1926.1126. There is no provision requiring the employer to examine whether the substance or the process can be replaced, and none that would call for a reason to be given where it is not replaced. [153, 154, 155]

That is the central difference from every other body of rules dealt with in this analysis. Section 7 paragraphs 3 and 4 of the German Hazardous Substances Ordinance give priority to substitution; Article 4 of Directive 2004/37/EC requires replacement as far as technically possible; Article 4.17 of the Dutch Arbeidsomstandighedenbesluit requires it so far as technically feasible; Regulation 7(2) of the British COSHH Regulations states that “substitution shall by preference be undertaken”; and within North America, Section 5.57(1) of the Occupational Health and Safety Regulation of British Columbia requires, for substances carrying the ACGIH A1 or A2 or the IARC 1, 2A or 2B notation, that the employer “must replace it, if practicable, with a material which reduces the risk to workers”. [153, 172]

The consequence for insulated hot components is plain. Under American federal rules the formation may continue indefinitely, lawfully, as long as the exposure is kept below the permissible exposure limit. The order of measures addresses the exposure; the material cause is left untouched. Where the insulation containing calcium or sodium stays on the chromium-alloyed hot component, the chromate forms again at the next thermal load, and the standard has nothing to say about that cycle.

Hazard communication: the reaction products of anticipated use

Paragraph (l)(1) of the chromium(VI) standard refers to the Hazard Communication Standard: “Chemical manufacturers, importers, distributors and employers shall comply with all requirements of the Hazard Communication Standard (HCS) (§ 1910.1200) for chromium (VI).” Sub-paragraph (ii) requires that at least cancer, eye irritation and skin sensitization be addressed in classifying the hazards of chromium(VI). [153]

The scope of the Hazard Communication Standard is set in paragraph (b)(2): “This section applies to any chemical which is known to be present in the workplace in such a manner that employees may be exposed under normal conditions of use or in a foreseeable emergency.” The classification duty is in paragraph (d)(1), which requires chemical manufacturers and importers to evaluate the chemicals they produce or import and states that the classification “shall include any hazards associated with the chemical’s intrinsic properties including: (i) A change in the chemical’s physical form; and (ii) Chemical reaction products associated with known or reasonably anticipated uses or applications”. [157]

That second item is the provision that fits the case dealt with here most closely of any in the standard. The formation of calcium and sodium chromate at the interface with a chromium-alloyed hot component is a chemical reaction product of an anticipated use of a high-temperature insulation material. The definitions point the same way: “Produce means to manufacture, process, formulate, blend, extract, generate, emit, or repackage.” and “Use means to package, handle, react, emit, extract, generate as a byproduct, or transfer.” [157]

The duties themselves are divided by paragraph (g)(1): “Chemical manufacturers and importers shall obtain or develop a safety data sheet for each hazardous chemical they produce or import. Employers shall have a safety data sheet in the workplace for each hazardous chemical which they use.” Paragraph (g)(5) requires that where the preparer “becomes newly aware of any significant information regarding the hazards of a chemical, or ways to protect against the hazards, this new information shall be added to the safety data sheet within three months”. The transmission duties in paragraphs (g)(6) and (g)(7) are framed in terms of shipment and of sale. [157]

The structure is therefore the same one that Section 25 describes for the European instruments, in American wording. Everything that informs attaches to a product that someone places on the market. A compound that comes into being at the customer’s plant after delivery has no supplier, no label and no safety data sheet, and the classification duty that would reach it sits with the manufacturer of the material from which it forms. What the North American sheets of those manufacturers say is set out in Section 36. [157]

Waste: a characteristic without speciation

Waste classification runs through the toxicity characteristic. 40 CFR 261.24(a) provides that a solid waste exhibits the characteristic of toxicity if, using “the Toxicity Characteristic Leaching Procedure, test Method 1311” of EPA Publication SW-846, the extract from a representative sample contains any of the contaminants listed in Table 1 at or above the value given there. Table 1 contains a single chromium row: EPA Hazardous Waste Number D007, contaminant Chromium, CAS number 7440-47-3, regulatory level 5.0 mg/L. [158, 159]

Neither the section nor the table distinguishes oxidation states. The words hexavalent and trivalent do not occur in 40 CFR 261.24. The regulatory level applies to leachable chromium as such. The question of valence, on which the occupational hazard and the whole of this analysis turn, is not asked by the waste test, and a removed insulation bearing chromate can pass or fail the characteristic on its leachable total chromium irrespective of which compound is present. [158]

The determination itself lies with the generator. 40 CFR 262.11 provides that a person who generates a solid waste “must make an accurate determination as to whether that waste is a hazardous waste”, and paragraph (a) requires that determination to be made “at the point of waste generation, before any dilution, mixing, or other alteration of the waste occurs”. Paragraph (d)(1) permits the determination on knowledge, which “may include process knowledge (e.g., information about chemical feedstocks and other inputs to the production process); knowledge of products, by-products, and intermediates produced by the manufacturing process”, while paragraph (d)(2) requires testing “When available knowledge is inadequate to make an accurate determination”. [160]

Process knowledge is thus an admissible basis, and it is the basis on which a maintenance operation is in practice assessed. For insulated chromium-alloyed hot components the process knowledge that matters is the one this analysis sets out: a basic oxide in contact with a chromium oxide layer above the formation temperature. Where that knowledge is absent, paragraph (d)(2) requires testing, with the matrix problem of Section 17 attached to it.

One further boundary belongs here. Under paragraph (b)(6)(i) of the Hazard Communication Standard, hazardous waste subject to regulation by the Environmental Protection Agency is excluded from that standard. The material therefore passes from one regime into another at the moment it becomes waste, and in neither of them does anyone ask which chromate is present. [157, 158]

The asbestos comparison in American law

How much procedural depth American law gives a named substance is shown by 29 CFR 1926.1101. The standard works with a presumption: “Presumed Asbestos Containing Material means thermal system insulation and surfacing material found in buildings constructed no later than 1980.” It works with four classes of work, among them Class III, “repair and maintenance operations, where “ACM”, including TSI and surfacing ACM and PACM, is likely to be disturbed”. And it works with a competent person, defined as one “who is capable of identifying existing asbestos hazards in the workplace and selecting the appropriate control strategy for asbestos exposure, who has the authority to take prompt corrective measures to eliminate them”, trained for Class I and II work in a course meeting the criteria of the Model Accreditation Plan of the Environmental Protection Agency. [161]

The assessment comes before the work. Paragraph (f)(2)(i) requires that a competent person conduct an exposure assessment “immediately before or at the initiation of the operation”, completed in time to comply with the requirements triggered by the exposure data or by the lack of a negative exposure assessment. And the duty does not rest on the contractor alone. Paragraph (k)(2)(i) provides: “Before work subject to this standard is begun, building and facility owners shall determine the presence, location, and quantity of ACM and/or PACM at the work site”. The presumption may be rebutted under paragraph (k)(5), by an inspection under the Asbestos Hazard Emergency Response Act or by bulk sampling carried out by an accredited inspector or a certified industrial hygienist, and the data relied on must be retained. [161]

Two things this standard does not contain should be said plainly, because the German comparison in Section 25 does contain them. 29 CFR 1926.1101 has no duty to notify an authority before the work begins, and it requires no licence for the contracting undertaking as such; its accreditation requirements attach to persons and to training courses. Requirements of that kind exist in the United States outside this standard, in the asbestos regulations of the Environmental Protection Agency and in state licensing programs, which are not evaluated here. [161]

For chromium(VI) none of it exists. There is no presumption rule for a material pairing, no class system graded by the kind of work, no competent person with a prescribed course, no duty of the plant owner to determine the presence of the substance before the work, and no assessment that a defined person has to carry out before the operation begins. The chromium(VI) standard requires the employer to determine exposures and to control them. It does not require anyone to find out first whether the substance is there. [153, 161]

What exists in the United States and what is missing

What exists is a standard with a limit value, an action level, an exposure determination, a hierarchy of engineering and work practice controls, protective clothing, change rooms and washing facilities, medical surveillance, hazard communication, recordkeeping, and for general industry regulated areas, housekeeping and the compressed air prohibition. What exists on top of that is a classification duty of the manufacturer that covers the reaction products of anticipated use, a waste determination resting on process knowledge, and the procurement clause set out in Section 18.

What is missing is any trigger that starts the chain. No provision requires the employer to examine whether chromium(VI) forms on his own installation; no provision obliges the plant owner to determine its presence before maintenance; no provision requires the substitution of the material that supplies the reaction partner; and no publication of the Occupational Safety and Health Administration or of the National Institute for Occupational Safety and Health names the formation of chromates on insulated chromium-alloyed hot components. I have not found such a publication. That is not a statement about whether the process occurs in American plants.

Conclusion for companies in the United States

The scope of 29 CFR 1910.1026 is not conditional on anyone having named the source. Where chromium(VI) is present on a surface that employees work on, the standard applies, the exposure determination under paragraph (d) is owed, and the one way out leads through objective data covering every expected condition of use. Whoever relies on the absence of a rule naming the case is relying on the absence of a designation, not on the absence of a duty. And whoever intends to rely on paragraph (a)(4) needs data on a matrix for which, as Section 17 sets out, no standardized method exists. [153]