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Exposure Limits: Is OSHA Circumventing the Rulemaking Process?

May 12, 2014
OSHA implementing "recommended" air-contaminant exposure limits that are more rigorous than standard PELs has left employers wondering which exposure limits they should follow.

Recently, OSHA launched a high-profile effort to address its permissible exposure limits (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 11th Circuit struck it down.

This time, rather than initiating a rulemaking to update its standards, OSHA published "recommended" exposure levels on its website that are more stringent than their corresponding PELs. OSHA's updated exposure levels are based on occupational exposure limits (OELs) set by NIOSH, the American Conference of Governmental Industrial Hygienists and Cal/OSHA.

OSHA Administrator Dr. David Michaels has sent ambiguous signals to stakeholders about OSHA's intentions for the recommended OELs. On the one hand, Michaels has advised stakeholders that the recommended OELs are a "tool that we're putting out, not [a] new regulation."

On the other hand, Michaels repeatedly has equivocated over whether OSHA will use the recommended OELs as a basis for general-duty clause citations.

Actions speak louder than equivocations. In September 2013, OSHA issued a general- duty 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 CFR 1910.1000 Table Z-2) is 100 ppm. In effect, the Wisconsin employer complied with the standard but still was penalized for failing to adhere to the OEL.

Comply with PELs or OELs?

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 OELs. From a legal perspective, the answer to this question may revolve around a 1987 opinion by the U.S. Court of Appeals for the District of Columbia Circuit, 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 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 in which an employee was exposed to and overcome by Freon vapors even though the levels measured below the OSHA PEL of 1,000 ppm. The 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 its employees. According to the 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 Co. 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," OSHRC said.


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 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 that rely on the mandatory PELs would be wise to carefully monitor OSHA's statements and enforcement patterns on this issue. They also should 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. 

Mark S. Dreux is the head of the OSHA Group in Arent Fox's Labor & Employment Practice and is nationally recognized for his work in occupational safety and health law. Aaron Brand is an associate in Arent Fox's Litigation Practice Group. Matt Thorne is an associate at Arent Fox, focusing on occupational safety and health law.

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