OSHA Circumvents Rulemaking by Implementing "Recommended" Air Contaminant Exposure Limits

Recently, OSHA launched a high-profile effort to address its permissible exposure levels (PELs) for chemicals in the workplace. OSHA last attempted to update its PELs — which are over four decades old — via a rulemaking in 1989. But that effort failed after the Eleventh Circuit struck it down. This time, rather than initiating a rulemaking to lawfully update its standards, OSHA published “recommended” exposure levels on its website which are more stringent than their corresponding PELs.

OSHA’s updated, recommended exposure levels are based on “occupational exposure levels” (OELs) set by the National Institute for Occupational Safety and Health (NIOSH), the American Conference of Governmental Industrial Hygienists (ACGIH), and California OSHA.

Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, has sent ambiguous signals to stakeholders about OSHA’s intentions for the recommended OELs. On the one hand, Dr. Michaels has advised stakeholders that the recommended OELs are a “tool[] that we’re putting out, not [a] new regulation[].” On the other hand, Dr. Michaels has repeatedly equivocated over whether OSHA will use the recommended OELs as a basis for “general duty” clause citations.

Actions speak louder than equivocations. In September of 2013, OSHA issued a general duty clause citation against a Wisconsin employer alleging its employees were exposed to styrene at 65.2 ppm which exceeds the corresponding OEL of 50 ppm. The PEL for styrene (provided in 29 C.F.R. § 1910.1000 Table Z-2) is 100 ppm. In effect, the Wisconsin employer complied with the standard but was still penalized for failing to adhere to the OEL, which Dr. Michaels has called a “tool,” not a “regulation.”

Publishing the OELs and the recent citation in Wisconsin raise questions about whether employers can continue to rely on OSHA’s mandatory PELs or whether they must comply with the more stringent OELs. From a legal perspective, the answer to this question may revolve around a 1987 opinion by the United States Court of Appeals for the District of Columbia Circuit entitled International Union UAW v. General Dynamics Land Systems Division. In General Dynamics, the D.C. Circuit considered whether OSHA can use the general duty clause of the OSH Act (Section 5(a)(1)) — which broadly requires all employers to provide its employees with “employment and places of employment free from recognized hazards…” — to cite an employer even though the employer has shown that the cited conduct is covered by a specific OSHA standard. General Dynamics involved a situation where an employee was exposed to and overcome by freon vapors even though the levels measured below the OSHA PEL of 1000 ppm. The General Dynamics court concluded that an employer may rely on a specific standard — such as OSHA’s current PELs — unless the employer knows that the standard is inadequate to protect their employees. According to the General Dynamics court, if the employer knows that the PEL in the standard is inadequate, the employer is obligated under the general duty clause to take actions “over and above” the specific level to protect its workers.

The court’s ruling in General Dynamics concerning PELs has not been adopted by other courts, including the Occupational Safety and Health Review Commission (OSHRC). In fact, the General Dynamics ruling directly contradicts the seminal OSHRC case on general duty clause preemption, Secretary v. Brisk Waterproofing Company, Inc., where it was held that OSHA may not issue a general duty clause citation where a specific standard covering the alleged hazard already exists. To allow otherwise, as General Dynamics did, “would be inconsistent with the overall purpose of the Act, would emasculate all the provisions dealing with the promulgation of standards, and would give a wider effect to the Act’s general duty clause than was ever intended by Congress.”

General Dynamics provides important context to OSHA’s posting of recommended OELs, particularly when read in conjunction with the following message that OSHA posted on its website: “OSHA’s mandatory PELs in the Z-Tables remain in effect. However, OSHA recommends that employers consider using the alternative occupational exposure limits because the Agency believes that exposures above some of these alternative occupational exposure limits may be hazardous to workers, even when the exposure levels are in compliance with the relevant PELs.”

Armed with this statement, OSHA’s attorneys will argue that employers have knowledge that mandatory PELs do not protect their employees and that, under General Dynamics, a general duty clause citation is warranted. OSHA’s posting of recommended OELs is little more than a transparent effort to provide its compliance officers with justification to cite employers for exposing employees to levels that exceed the recommended OELs, even if the levels are less than the mandatory PELs.

Employers who rely on the mandatory PELs would be wise to carefully monitor OSHA’s statements and enforcement patterns on this issue. Employees should additionally consider evaluating whether achieving the relevant OEL is feasible and whether the exposure effects outlined in current literature create a health risk to their employees. Such an evaluation could improve employee health, avoid enforcement action by OSHA, or provide a persuasive defense should OSHA issue a citation.

Arent Fox’s OSHA team will continue to monitor this issue and post updates on the Arent Fox OSHA Team Blog.