Warnings are starting to pop up on the Internet that OSHA’s new voluntary hazardous chemical exposure limits may cause more trouble for employers than you might otherwise expect.
Stating that the existing permissible exposure limits (PELs) for hazardous chemicals are a half century out of date, OSHA released new Annotated PEL Tables with side-by-side comparisons of its outdated PELs with those from California OSHA, the National Institute of Occupational Safety and Health, and the American Conference of Governmental Industrial Hygienists.
“I advise employers, who want to ensure that their workplaces are safe, to utilize the [PELs] on these annotated tables,” said OSHA administrator David Michaels.
When asked, Michaels said OSHA can only enforce its own PELs.
But that hasn’t stopped warnings and predictions that these voluntary PELs are either more than just voluntary or that they can cause problems for companies outside of OSHA compliance.
Toxic tort
In a brief post on Lexology.com, Steven Siros of the Jenner & Block law firm says these voluntary standards could have an impact in lawsuits:
“From a toxic tort exposure perspective, plaintiffs’ counsel are sure to argue that these ‘voluntary’ standards establish the appropriate exposure threshold and that any exposure above these voluntary standards is harmful (and in turn compensable).”
Siros notes for many chemicals, the difference between OSHA’s enforceable PEL and the voluntary limit is substantial. Example: Tetrachloroethylene has an OSHA PEL of 100 parts per million, but voluntary standards set the safe level at 25 ppm.
Another warning on EnvironmentalSafetyUpdate.com from Seyfarth Shaw LLP lawyers James Curtis and Craig Simonsen states:
“Employers should consider themselves on notice that OSHA now considers the reduced PELs as necessary to adequately protect the health of employees. Accordingly, employers would be well advised to consider these reduced PELs when conducting a job hazard analysis and, where possible, make every effort to meet these lower exposure limits.”
General Duty Clause enforcement?
A post by Matt Shudtz, a policy analyst, on ProgressiveReform.org looks at another potential angle. Shudtz speculates OSHA could now use its General Duty Clause (GDC) for “a new wave of enforcement” using the voluntary PELs.
OSHA must prove four elements for a GDC violation:
- Employees are exposed to a hazard
- The hazard is generally recognized by the employer or the industry
- The exposure has caused or is likely to cause death or serious physical injury, and
- There is a feasible means of abating the hazard.
Shudtz states the difficult points for OSHA to prove are items 2 and 4. But, with the new annotated table of PELs, employers are on notice that employee exposure above the new voluntary levels are recognized as hazardous by the occupational health community.
What about point 4? That’s where OSHA’s second new tool for employers comes in. OSHA has also released a toolkit to help employers identify safer chemicals that can be used in place of more hazardous ones.
According to Shudtz, it would take “some enterprising work by enforcement officials and strong support from the Solicitor of Labor” to create a situation in which OSHA could use the new voluntary PELs for enforcement purposes. Shudtz also notes GDC cases aren’t easy matters for OSHA, so don’t expect to see a flood of new cases.
Do you think the new voluntary limits will create more lawsuits? Will OSHA eventually use them in enforcement? Let us know what you think in the comments below.
