NEW OSHA TASK FORCE WILL CONSIDER UPDATING PERMISSIBLE EXPOSURE LIMITS

July 6, 2010

The Occupational Safety and Health Administration (OSHA) may be considering an update of its list of permissible exposure limits (PELs) for many regulated chemicals and recognized air contaminants. According to BNA’s Daily Labor Report, at the May 26, 2010 American Industrial Hygiene Conference and Expo in Denver, OSHA Administrator David Michaels told the group that the Agency is in the process of assembling a task force to examine the possibility of updating current PELs. Most of the PELs have remain unchanged since first being set by OSHA in 1971, and revising the limits may be easier said than done. Because of that difficulty, Administrator Michaels urged that “all of us in the occupational safety and health community have to engage in support of this process because it is a very difficult one.”

This is not the Agency’s first attempt at implementing PEL revisions, and a prior attempt was not successful. By way of background, an employer is required under the “General Duty Clause” of the Occupational Safety and Health Act of 1970 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.” The Act also requires employers to “comply with occupational safety and health standards promulgated” by OSHA. Pursuant to this authority, OSHA promulgated numerous PELs for air contaminants in 1971; these standards are organized into three industries: general industry, shipyard employment, and the construction industry.
 

In 1989, OSHA implemented more than 400 revised and updated PELs because of its concern that the 1971 limits were outdated and based on obsolete science. In response, however, representatives from various industries and associations (including the AFL-CIO) challenged the updated PELs in court, claiming that OSHA had not followed the proper procedures for making the revisions and that there was not enough scientific evidence or support to justify the updates. Interestingly, the arguments by the various groups that joined together in the lawsuit varied dramatically, from claims that updated PELs were too low to arguments that they were too high. After years of litigation, the Eleventh Circuit Court of Appeals, based in Atlanta, refused to enforce any of the updated PELs and concluded that “OSHA has lumped together substances and affected industries and provided such inadequate explanation that it is virtually impossible for a reviewing court to determine if sufficient evidence supports the agency’s conclusion.”

Now, it appears the Agency has again set its sights on revising and updating PELs – almost forty years after the standards were first set and more than twenty years after its last failed attempt. It remains to be seen precisely what approach OSHA will take or what impact such changes may have on employers. However, as this agency initiative develops, employers and associations should monitor it and take an active role if OSHA solicits their input.