Beginning in 1970, OSHA issued standards for 29 different chemicals, including 13 carcinogens for which a Permissible Exposure Limit (PEL) was not promulgated. According to Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health:
We must do more to protect America’s most valuable resource – our workforce. The most efficient and effective way to do this is by eliminating or replacing hazardous chemicals with safer alternatives whenever possible.
The means proposed by OSHA to accomplish the elimination or replacement of hazardous chemicals with safer alternatives was released on October 24, 2013. The OSHA news release regarding the transition to safer chemicals states that OSHA’s chemical exposure standards only cover a small number of the chemicals found in the workplace and that the existing exposure standards are both out-of-date and not sufficient to protect employees. Importantly, OSHA specifically states that the information provided in the “Transitioning to Safer Chemicals” program is advisory in nature and specifically disclaims that these resources create new standards, regulations, or legal obligations.
In conjunction with the release of the “Transitioning to Safer Chemicals” program, OSHA also issued so-called “Annotated Permissible Exposure Limits” (Annotated PELs). The Annotated PELs include PELs recommended by the American Conference of Governmental Industrial Hygienists (ACGIH) and the National Institute for Occupational Safety and Health (NIOSH). While the PELs issued by these organizations are often identical, there are instances where one has a lower PEL than the other. OSHA does not express an opinion concerning whether the ACGIH or the NIOSH PEL is preferred, leaving employers to decide for themselves which PEL to meet.
The limits set forth in the Annotated PELs are often half, or less than half, the current PEL for a given substance. The PELs are often expressed as a limit over an 8 hour shift or time weighted average (TWA). OSHA currently allows a TWA of 10 ppm for benzene versus a 5 ppm TWA under the Annotated PELs. Likewise, the limit for acetone would be cut in half from 100 ppm to either 250 or 500 ppm, depending on whether the NIOSH or ACGIH PEL is consulted. Even grain dust would see a reduction in PEL from 10 mg/m3 to 4.
The process OSHA outlines includes the following seven steps: 1. Form a team and develop a plan; 2. Examine current chemical use; 3. Identify alternatives; 4. Assess and compare alternatives; 5. Select a safer alternative; 6. Pilot the alternative; and 7. Implement and evaluate the alternative.
Though OSHA specifically disclaims that the program creates a new standard or regulations, OSHA is likely to issue citations under the General Duty Clause when there has been an employee death or injury due to chemical exposure, even at levels lower than the current permissible PELs. Prudent employers should consider whether they need to look into safer alternatives to the chemicals used in their workplaces and should consider implementing the seven steps outlines above.