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OSHA can cite respiratory hazards not covered by a PEL, but it’s complicated!

New policy provides guidance to inspectors

Posted December 11, 2018

OSHA has set permissible exposure limits (PELs) for many air contaminants. However, for many, particularly newer ones, they have not. Does that mean OSHA can’t issue citations when employees are exposed to a hazardous level of a contaminant for which there is no OSHA limit?

No, OSHA has occasionally used the General Duty Clause (GDC) of the OSH Act to cite respiratory hazards from exposure to an air contaminant that is not covered by an OSHA PEL, but that is covered by an industry limit, such as a Recommended Exposure Limit (REL) issued by the National Institute for Occupational Safety and Health (NIOSH), or a Threshold Limit Value (TLV) published by the American Conference of Governmental Industrial Hygienists (ACGIH).

But, the policy has been applied sparingly, and there has been confusion among employers and OSHA personnel about when such citations can be used.

A new policy memorandum provides much more guidance to enforcement personnel on using the General Duty Clause to cite respiratory hazards where there is no OSHA limit.

Must be more than a measured overexposure to an industry limit

The General Duty Clause requires each employer to "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." As explained in the OSHA Field Operations Manual (FOM) (CPL 02-00-160), when enforcing this requirement, the Occupational Safety and Health Review Commission and court precedent have determined that the following elements must be established in order for OSHA to prove a violation of the GDC:

  • The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;
  • The hazard was recognized;
  • The hazard was causing or was likely to cause death or serious physical harm; and,
  • There was a feasible and useful method to correct the hazard.

When applying these elements to respiratory hazards, it is important for OSHA enforcement personnel to ensure that GDC citations are not based solely on evidence that a measured exposure exceeded a recommended occupational exposure limit (OEL), such as a Threshold Limit Value (TLV), or based on the fact that there is a documented exposure to a recognized carcinogen.

The new policy says that unless the case file evidence proves all four GDC elements, the Area Office should issue a hazard alert letter (HAL). The HAL should advise the employer that one or more employees at the establishment was being, or had been, exposed to a potentially serious respiratory hazard from a chemical that exceeded an OEL, and provide a series of recommended exposure control suggestions.

However, if the evidence does provide sufficient proof of the four GDC elements, then the general duty clause should be cited, following the general guidance in the FOM, Chapter 4.

When citations can be issued

Under the new policy, OSHA provides the following guidance to enforcement personnel for each of the GDC elements necessary to issue a citation:

  • The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed – Evidence that documents this element includes personal air sampling results, written workplace observations, photographs, and witness statements noting how workers were exposed to the chemical, and descriptions of any implemented engineering, work practice, and administrative control measures, and personal protective equipment. The evidence should also substantiate that regular and continuing employee exposure to the chemical at the measured levels could reasonably occur. However, if the exposed employees were wearing appropriate respiratory protection with no deficiencies in the respirator program, then the likelihood that OSHA could establish a respiratory hazard covered by the GDC would be low.
  • The hazard was recognized – OSHA can establish this element in one of two ways. (1) For employer recognition: Evidence may include employee complaints to management, illness and injury logs, consultant reports, a previous HAL, internal safety and health policies related to workplace operations involving the chemical that may refer to an OEL, or information from a manufacturer describing safety and health precautions for equipment or chemicals used in the workplace such as the chemical manufacturers' safety data sheet (SDS). (2) For industry recognition: Evidence may include an industry or trade association's guidance document, or an assessment from an industry expert describing the work practice or operation used at the establishment and explaining the particular health hazards and recommended control measures. Alternatively, a similar publication from a (non-OSHA) federal, state, or local government agency, or from a professional organization, may also provide good evidence. Some examples of government agencies include the National Institute for Occupational Safety and Health (NIOSH), the National Toxicology Program (NTP), and the U.S. Environmental Protection Agency (EPA). Examples of organizations include The Center for Construction Research and Training (CPWR, formerly The Center to Protect Workers' Rights), the American Conference of Governmental Industrial Hygienists (ACGIH™), and the Occupational Alliance for Risk Science (OARS).
  • The hazard was causing or was likely to cause death or serious physical harm – Although an illness or injury from the measured exposure need not have occurred yet, the strongest evidence is an employee illness/injury, hospitalization, fatality, or medical diagnosis related to workplace exposure. In the absence of this, the evidence must include more than just the fact that a measured exposure exceeded a TLV or REL, because these recommended limits may be much lower than the level at which a serious heath effect may be experienced. In most cases, proving this element will require an expert or industry-related peer reviewed study to document that serious physical harm could occur at the measured level with continuing employee exposure. Additionally, establishing serious physical harm for some respiratory hazards may be particularly difficult if the resulting illness, such as cancer, would require a substantial period of time to occur.
  • There was a feasible and useful method to correct the hazard – Evidence may include the SDS describing work practices for safe handling, engineering controls, and personal protective equipment, or published industry and/or NIOSH studies (e.g., health hazard evaluations (HHEs)) involving similar chemical processes or operations. Proving that feasible abatement measures would eliminate or materially reduce workplace exposure to a level that no longer presents a serious health hazard will likely require expert testimony.

This article was written by Travis Rhoden of J. J. Keller & Associates, Inc.

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