OSHA Enforcement with no Respiratory Hazard PEL - The General Duty Clause Applies
Many safety professionals have been asked how OSHA handles situations where an employee is exposed to a chemical substance with no published OSHA permissible exposure limit (PEL). OSHA recognizes that the PELs listed in the 1910.1000 tables are outdated. This is plainly evident in 1910.1000 Table Z-2, where the most current PEL is from a 1971 ANSI standard. If OSHA recognizes that its permissible exposure limits are outdated, why not just update them? There are two main reasons.
First, in 1989 OSHA tried to pass a final rule revising 212 existing exposure limits and creating 164 new ones. The 11th Circuit Court of Appeals ruled that the approach of updating all exposure limits with one rule “is not consistent with the requirement of the OSH Act. Before OSHA uses such an approach, it must get authorization from Congress by way of amendment to the OSH Act”. But even the 11th Circuit Court of Appeals acknowledged the long process it would take OSHA to go over the detailed analysis for each permissible exposure limit. This is the second reason why OSHA does not update its PELs more frequently. This flowchart explains OSHA’s lengthy rulemaking process from identifying a hazard to post-promulgation activities. The process can take from four and a half years up to twelve and a half years to pass a single rule.
However, this does not mean that OSHA has their hands tied in these situations. On November 2, 2018 OSHA sent a memorandum to all Regional Administrators regarding its enforcement policy for respiratory hazards not covered by OSHA permissible exposures limits. OSHA can cite an employer under the General Duty Clause of the OSH Act (“Each 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.”) under the following circumstances:
- The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed – Evidence may include air sampling, description of engineering controls, witness statements, documentation of personal protective equipment, and evidence that continuous employee exposure at the levels measured (not a one time only) could reasonably occur. If exposed employees are using respiratory protection and all the elements of the respiratory protection program are implemented, then the likelihood of being cited under the general duty clause diminishes.
- The hazard was recognized – Evidence may include employee complaints, OSHA 300 logs, consultant reports, information from safety data sheets as well as information provided by industry or trade associations or information from other federal, state, or local government agencies.
- The hazard was causing or was likely to cause death or serious physical harm - This requirement may include information from industry related peer reviewed studies or an expert.
- There was a feasible and useful method to correct the hazard – Evidence may include information from the safety data sheet and/or other CDC’s National Institute for Occupational Safety and Health (NIOSH) studies.
This means that in order to be cited under the general duty clause, all elements must be present and documented. The memorandum goes on to say that citations under the general duty clause should not be based solely upon evidence that measured concentrations were above a threshold limit value from the American Conference of Governmental Industrial Hygienists, a recommended limit value from NIOSH, or documentation that the air contaminant is a carcinogen. If all elements are not met, OSHA should send a hazard alert letter to the employer instead in which it provides recommendations for exposure control.
By Luis Pieretti
Safety Net Blog
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