In a press release dated Thursday, Oct. 24, OSHA let industry know that it was issuing guidance for employers in the form of “Annotated Permissible Exposure Limits.” Recognizing that its published Permissible Exposure Limits or PELs (i.e., the concentrations of chemicals to which an employee can be safely exposed during a work shift) are often old and outdated, OSHA is providing tables that compare the existing PELs to: (1) Cal/OSHA PELs; (2) the National Institute of Occupational Safety and Health (NIOSH) Recommended Exposure Limits (RELs) and; (3) the Threshold Limit Values (TLVs®) of the American Conference of Governmental Industrial Hygienists (ACGIH®). (The latter are copyrighted, but can be published, the rest are publicly available.) Significantly, OSHA has not said that these three standards replace OSHA’s published standards.
Pam: From an EH&S perspective, my thoughts on this effort are decidedly mixed. While I applaud any effort to educate employers, employees, and the public about the most accurate and up-to-date information on chemical exposure, OSHA has not amended its regulations to mandate that these newly cited resources must be followed. Indeed, these other standards are not enforceable, with the obvious exception of the Cal/OSHA PELS in California. At the same time, OSHA’s made it clear that it doesn’t consider the current standards “safe enough.”
So what does a manufacturer do? Change operating procedures to reflect these new, non-binding standards? Stick with the OSHA PELs? Pick and choose? Unfortunately, I suspect that the answer to this will play out in courtrooms, union negotiations, workers compensation hearings, and OSHA inspections for some time to come.
Jeff: From a litigation / risk management perspective, alarm bells immediately go off in my head. In its press release, OSHA states that employers may “voluntarily adopt, newer, more protective workplace exposure limits.” Further, OSHA states that “complying with OSHA’s antiquated PELs will not guarantee that workers will be safe” and that new data indicates that “in many instances these mandatory limits are not sufficiently protective of workers’ health.” As opposed to adopting new mandatory standards, OSHA has shifted the burden to manufacturers to “voluntarily” review exposure limits and determine whether the mandatory limits in place are “safe” or not. What is most troubling to me is that any determination (short of adopting the newer standards) will be questioned particularly if there is disagreement about the need for the heightened standards. I agree with Pam that these issues will probably have to play themselves out in adversarial proceedings of all types. We will keep our readers posted on any new developments.