OSHA uses General Duty Clause to Work Around Obsolete PELs

OSHA shifts tack with obsolete PELs and fines a company under the General Duty Clause for exposing workers to high levels of styrene vapor, resulting in lung injuries, despite the measured styrene concentration being below the outdated OSHA PEL. To do so, OSHA uses third party occupational exposure standards as the accepted standard of care instead of the PEL.

OSHA inspected a fiber glass factory and issued a fine in September for $49,500, in part for exposing workers to high levels of styrene—even though OSHA determined that styrene exposure at the factory was below OSHA’s Permissible exposure limit (PEL) for styrene (currently 100 ppm 8 hr TWA, 200 ppm ceiling)

The OSHA (PELs) are widely acknowledged to be out of date, most being over 40 years old. OSHA recognizes that some of the PELs do not adequately protect worker health and in some cases are far above other exposure standards such as the the ACGIH TLVs (TLV for styrene = 20 ppm 8 Hr TWA, 40 ppm STEL (ACGIH 2008)) and NIOSH recommended exposure limits. (REL for styrene = TWA 50 ppm (215 mg/m3) ST 100 ppm (425 mg/m3))

OSHA tried to update the PELs in the 1980s, but the revised PELs were struck down by the 11th Circuit Court of Appeals in 1992 on the grounds that OSHA did not sufficiently demonstrate that the new PELs were necessary or that they were feasible. OSHA’s PEL for styrene that was struck down was 8 hr TWA 50 ppm (215 mg/m3), STEL 100 ppm (425 mg/m3), or half the current limits, but still two and half times the ACGIH’s TLV.

For OSHA to prosecute an employer for exposing employees to a chemical vapor below the PEL, OSHA must use the General Duty clause in the 1970 Occupational Safety and Health Act, Sec. (5), Duties.

(a) Each employer —
(1) 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;…

To successfully prosecute under the general duty clause, OSHA must prove that the employer failed to provide a safe work environment and consequently that the styrene exposures were greater than safe levels, i.e. above the safe occupational exposure level (perhaps the ACGIH TLV).

It places OSHA in the ironic position of having to use another organization’s occupational exposure limit, rather than the PEL and it is a sad reflection on the inability of the agency to update its standards such that it must use this approach. However, OSHA appears to have decided that it needed a work-around for its obsolete PELs involving recommended third party occupational exposure limits and use of the General Duty clause.

As this blog recently reported, OSHA posted on its website an annotated table of exposure limits that includes occupational exposure limits from third-party organizations such as ACGIH and NIOSH that, for many chemicals, are much lower than the OSHA PELs. The fiber glass factory, (Fiberdome Inc) has already said that it intends to appeal. If the court accepts OSHA’s approach, we can expect to see OSHA applying the same tactic against many other employers that use chemicals whose PELs are obsolete.

For employers it means that the compliance with OSHA PELs is no longer a bright line safe harbor and if workers are experiencing symptoms of chemical exposure, employers must take appropriate measures to protect their people and look to other applicable standards such as ACGIH. Appropriate measures include engineering controls (air turn overs, exhausts), continuous gas monitors, PPE and of course training on how to use the chemicals safely.


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