By James L. Curtis and Craig B. Simonsen
Through a fifty-five page proposed rule in the form of a Request for Information (RFI), 79 Fed. Reg. 61384 (October 10, 2014), OSHA has re-opened a "national dialogue on hazardous chemical exposures and permissible exposure limits" (PELs) in the workplace.
The OSHA's PELs are the regulatory limits on the amount or concentration of a chemical substance in the air in the workplace. The PELs are intended to protect workers against the adverse health effects of exposure to hazardous substances. According to OSHA, approximately ninety-five percent of the current nearly 500 PELs have not been updated since their adoption in 1971. More importantly, OSHA's current PELs cover only a "small fraction of the tens of thousands of chemicals used in commerce, many of which are suspected of being harmful."
OSHA had previously acted in 1989 to update the PELS. In a challenge to that rulemaking the Eleventh Circuit Court of Appeals vacated the final rule, finding that "OSHA has not sufficiently explained or supported its threshold determination that exposure to these substances at previous levels posed a significant risk of these material health impairments or that the new standard eliminates or reduces that risk to the extent feasible." AFL-CIO v. OSHA, 965 F. 2d 962 (11th Cir. 1992).
In its announcement concerning this rulemaking, Dr. David Michaels, the OSHA Administrator, said "many of our chemical exposure standards are dangerously out of date and do not adequately protect workers." "While we will continue to work on updating our workplace exposure limits, we are asking public health experts, chemical manufacturers, employers, unions and others committed to preventing workplace illnesses to help us identify new approaches to address chemical hazards."
In particular, OSHA's stated purpose in promulgating the RFI is to:
- Review OSHA's current approach to chemical regulation;
- Describe and explore other possible approaches that may be relevant to future strategies to reduce and control exposure to chemicals in the workplace; and
- Inform the public and obtain public input on the best methods to advance the development and implementation of approaches to reduce or eliminate harmful chemical exposures in the workplace.
In a public statement Dr. Michaels stated that "we are particularly interested in ideas about possible streamlined approaches for risk assessment and feasibility analyses, and alternative approaches for managing chemical exposures. Among the approaches we ask about are control banding, task-based approaches, and informed substitution." It is the lack of risk assessments and feasibility analyses that tripped up OSHA in its 1989 PELs rulemaking. OSHA is now seeking a "work-a-round" to enable the massive revision and update to the PELs, without the trouble and expense associated with risk assessments and feasibility analyses for every chemical on the to be expanded list.
This rulemaking is important to manufacturers and businesses that make, use, distribute, or handle chemical substances.
Public comments on the RFI, Docket No. OSHA-FRDOC-0001-0595, are due on April 8, 2015.