Page 38 - Occupational Health & Safety, October 2019

INDUSTRIAL HYGIENE
Setting a Higher Standard:
The Limitations of Regulatory Limits
Is a business’ safety culture a success if it simply follows the letter of the law and avoids government fines?
BY LUIS F. PIERETTI
Should OSHA be the gold standard for work- place safety? Is a business’ safety culture a success if it simply follows the letter of the law and avoids government fines? Should employee health and safety be a goal beyond compli- ance with a legal standard? For those of us working in the safety and health field, we know the answers for those questions.
For regulatory purposes, OSHA has its permissible exposure limits (PELs) for less than 500 substances. But when it comes to employee exposure to chemi- cals’ airborne contaminants, most safety and health professionals usually use the recommended exposure limits (RELs) from the CDC’s National Institute for Occupational Safety and Health (NIOSH) and/or the threshold limit values (TLVs) from the American Conference of Governmental Industrial Hygienists (ACGIH).
So, what is the difference? The RELs and TLVs are updated based on sound industrial hygiene practice and data available from epidemiological and toxico- logical studies. These guidelines are updated as the information is available but are not enforceable by law. Only OSHA’s PELs are enforceable by law. What people outside the occupational safety and health field don’t understand is that most of OSHA’s PELs in 29 CFR 1910.1000 Table Z-1 were the adopted ACGIH’s threshold limit values from 1968. These are based in toxicological and epidemiological knowledge pub- lished prior to that date. The permissible exposure limits contained in 29 CFR 1910.1000 Table Z-2 were mostly adopted from ANSI standards dating from 1966-1971.
When employers understand the limitations of OSHA’s permissible exposure limits, they usually ask “why doesn’t OSHA just update them?” Well, OSHA tried to update all the PELs in 1989. During that pro- cess, OSHA lowered the permissible exposure limits for 212 chemicals and added new limits for 164 ad- ditional chemicals. But in 1992, this effort was vacated by the Eleventh Circuit Court of Appeals because it found that OSHA had not made sufficiently detailed findings that each new PEL would eliminate signifi- cant risk and would be feasible in each industry in which the chemical was used.1
Another obstacle is the number of years it takes for OSHA’s rulemaking process.2 For example, OSHA had been working to create an occupational standard
for respirable crystalline silica since 2003 and didn’t introduce the new standard until 2017. Even now, OSHA could revise the standard and is seeking public comment until October 15, 2019.
Before adopting an occupational safety and health standard, OSHA needs to show that a significant risk exists. Once this information is available, OSHA needs to show how the new standard will significantly lower the significant risk and the technological and economic feasibility of the proposed standard. This is a resource-intensive process. Since 1971, OSHA has been able to establish or update permissible exposure limits for only about 30 chemicals.
As stated previously, permissible exposure limits are available for fewer than 500 substances. Non-reg- ulatory guidelines should be used as a supplement to regulatory limits since there are thousands of chemi- cals used in manufacturing processes today.
Many safety professionals have been asked how OSHA handles situations where an employee is ex- posed to a chemical substance with no published OSHA permissible exposure limit (PEL). OSHA recognizes that the PELs listed in 29 CFR 1910.1000 tables are outdated, but as already noted, the process of updating a standard can take a while.
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 adminis- trators regarding its enforcement policy for respira- tory hazards not covered by OSHA permissible expo- sures limits.3 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 rec- ognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”) un- der the following circumstances:
1. The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed. Evidence may include air sampling, 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 us- ing 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.
34 Occupational Health & Safety | OCTOBER 2019
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