by Eileen Senn
After decades of dysfunction, OSHA is poised to do something about their badly outdated rules for occupational exposures to chemical hazards. Millions of U.S. workers are exposed to chemicals every day at work, such as asbestos fibers in insulation, asphalt fumes in roofing and road work, carbon monoxide gas from burning fuels, chlorine in disinfectants, formaldehyde in bonded wood, isocyanates in foam, lead in bullets and solder, liquid mercury in instruments and light bulbs, solvents in cleaning products and paints, and silica in concrete. Yet most standards for chemicals on OSHA’s books date back more than 40 years.
Permissible Exposure Limits (PELs) have been the lynchpin of OSHA’s approach to addressing workers’ exposures to chemical hazards. OSHA cannot require ventilation or engineering controls, respiratory protection, or medical tests unless the agency collects air samples that prove that employee exposures exceed a PEL. There are currently only 16 chemicals within 20 comprehensive OSHA standards with more up-to-date and comprehensive requirements.**
In OSHA’s early years, it adopted the 1968 Threshold Limit Values (TLVs) of the American Conference of Governmental Industrial Hygienists (ACGIH) for about 500 chemicals and most remain in effect today. These PELs are listed in Tables Z-1, Z-2, and Z-3 in the OSHA standard on Air Contaminants, 29 CFR, 1910.1000. The “safe” level values for these compounds are not only woefully out of step with current scientific evidence of adverse health effects, but they address only a fraction of the chemicals in commerce to which workers are exposed. Furthermore, progressive European countries have moved away from exclusive dependence on exposure limits to preventive attempts to provide employers with the practical help they need to control chemicals, like COSHH Essentials in the United Kingdom and SOBANE in Belgium. Clearly, the U.S. government’s approach to protecting workers’ health from chemical hazards is long overdue for substantial reforms.
The Obama Administration’s Labor Department seems poised to act on this critical worker health issue. On June 24, 2010, OSHA convened a 1-day meeting of over 30 industry and labor experts, as well as representatives from the CDC’s National Institute for Occupational Safety and Health (NIOSH) to discuss their PEL predicament. OSHA’s primary legal advisor—an associate solicitor of labor—described the procedures OSHA must follow in order to set new PELs, such as demonstrating a significant risk of harm and assessing economic and technological feasibility. Other hurdles in the rulemaking process include a special review by small businesses, and polarized and well-financed, anti-regulatory stakeholders. As a result, OSHA rulemaking often takes more than 4 years to complete. Using traditional approaches means that regulating workers’ exposure to chemicals substances will only happen one at a time.
During this “PEL Chat”, OSHA staff presented, at my request, an overview of inspection data in which PELs were assessed. The overwhelming majority of employers (95%) were complying with the existing PELs. Since I have worked as an industrial hygienist (IH), I can assure you that OSHA’s IH’s do not go to the trouble of collecting air samples to identify chemical contaminants unless they think there is serious worker exposure. Efforts to enforce the OSHA PELs are futile. It requires an inordinate amount of OSHA funds and staff time to purchase, maintain, and calibrate expensive sampling equipment, on top of that is collecting and analyzing the samples. OSHA’s industrial hygienists collected 2 million of these samples from 1979 to 2007. The cost of doing this was certainly enormous, and had questionable value in addressing workers’ exposures to chemical hazards.
Options Being Considered by Federal OSHA
OSHA says it is considering the following potential options to address the PEL problem. The agency staff noted that these options are not mutually exclusive and a combination of approaches may be the best way to proceed.
- Update the current list of OSHA PELs through rulemaking
- Identify particular chemicals that need revised PELs based on high production volume and proceed with substance specific rulemakings on them
- Repeal outdated PELs through rulemaking and address chemical hazards through another approach
- Use a forthcoming Injury and Illness Prevention Program (I2P2) rulemaking to require employers to assess and control workers’ exposure to chemical substances
- Require employers to develop exposure limits
- Use hazard classification under the globally harmonized Haz Com standard to link to control banding non-mandatory recommendations
- Adopt mandatory control provisions triggered by hazard classification
- Adopt mandatory generic exposure monitoring and medical surveillance for all chemicals
- Extend existing General Duty Clause authority by issuing a directive outlining employer duties as they relate to chemical exposures
- Amend 1910.1000 through rulemaking to add requirement to assess exposures
(recalling that the OSHA PELs themselves are outdated)
- Amend OSHA standards related to personal protective equipment (1910.132 and 1910.134) to clarify employers’ responsibilities to assess workers’ exposures to chemical substances
Public Health and Worker Safety Advocates Discuss Options for Chemicals Policy
Several groups discussed the range of options OSHA is considering November 6 to 10 in Denver at the 138th American Public Health Association (APHA) Annual Meeting and the National Worker Health and Safety Summit, sponsored by the National COSH and the Occupational Health and Safety (OHS) section of APHA.
Dorothy Wigmore, MS and I led a workgroup on Reforming OSHA Chemical Policy at the Summit. Our diverse group included three family members of workers killed by chemicals, an occupational physician, two academic researchers, and four industrial hygienists. We didn’t have faith in substance-by-substance PEL approaches because there doesn’t seem to be enough time, money, toxicity data, or political capital to do the job right. We especially liked OSHA using the General Duty Clause, Control Banding, and requiring employers to find and fix worker chemical exposures as part of the I2P2 rule-making. A meeting of the APHA OHS industrial hygiene subcommittee reached similar conclusions on Sunday morning.
On November 8 at the APHA, Assistant Secretary of Labor for OSHA David Michaels announced that OSHA is planning a “Dirty Dozen” campaign to use the General Duty Clause to protect workers from a set of chemicals for which the PELs are especially inadequate or non-existent. Dr. Michaels stated that employers will be given plenty of notice of the chemicals and their hazards before General Duty inspections are undertaken. This will be an ambitious experiment to see if OSHA can routinely meet the considerable legal requirements to issue General Duty violations. Dr. Michaels gave no indication of what chemicals will be included, but perhaps the decision will be informed by the results of the Web Forum OSHA hosted during August for identifying hazardous chemicals for which OSHA should develop exposure reduction strategies.
When OSHA publishes a pre-proposal I2P2 draft, we will find out whether or not they include chemical hazards. I see no legitimate reason why OSHA should treat chemical hazards differently than other hazards in this rule-making. Employers can learn to find and fix chemical hazards just like any other hazard. I lay out the seven steps involved in a new checklist from the New Jersey Work Environment Council, Finding Chemical Exposures and Negotiating Fixes.
We are almost two years into Obama’s OSHA; workers certainly deserve to see action on chemical hazards within the next six months. As OSHA charts its course and unveils the “Dirty Dozen” campaign and a draft I2P2 standard, we will continue discussions here on how OSHA can effectively address chemical hazards.
**[Note: the 20 comprehensive OSHA standards addressing specific chemicals are: Acrylonitrile (1910.1045), Arsenic (inorganic) (1910.1018), Asbestos (1910.1001, 1926.1101, 1919.1001), Benzene (1910.1028), 1,3 Butadiene (1910.1051), Cadmium (1910.1027 and 1926.1127), Chromium (VI) (1910.1026), Coke oven emissions (1910.1029), Cotton dust (1910.1043), 1, 2 -Dibromo-3-chloropropane (DBCP) (1910.1044), Ethylene oxide (1910.1047), Formaldehyde (1910.1048), Lead (1910.1025 and 1926.62), Methylene chloride (1910.1052), Methylenedianiline (1910.1050), and Vinyl chloride (1910.1017).]
Eileen Senn is an industrial hygienist who has performed occupational health work for government and unions for 40 years. She was an OSHA industrial hygiene inspector in Philadelphia for eight years in the 70s and 80s. She directed an OSHA New Directions training grant from 1979 to 1981. She worked in occupational health surveillance for the state of New Jersey from 1986 to 2002. She has been an Independent consultant for the past eight years. She is perhaps best known for her seminal article, Playing Industrial Hygiene to Win.