For once, business and labor seem to agree: The Occupational Safety and Health Administration (“OSHA”) standards for workplace exposure to chemical hazards are badly outdated and in need of revision. In response to these concerns, last week OSHA issued a Request for Information seeking stakeholder input into how these standards, known as permissible exposure levels or PELs, may be best updated, and on other strategies to evaluate and address workplace exposure. In correspondence to OSHA, public health agencies and the Chamber of Commerce all agree that OSHA’s updating of its PELs is long overdue and necessary.
OSHA issues PELs, which specify the amount of a particular chemical substance allowed in workplace air, for roughly 470 chemicals, a “small fraction” of the roughly 8,300 chemicals estimated to be manufactured or imported in workplaces across the United States today. The small number of PELs issued to date is due, in part, to the fact that courts require OSHA to first establish that a chemical presents a significant risk to worker safety, and then to show that the proposed PEL will protect against that risk, to the extent feasible. This required analysis contains scientific, technical and economic components that have proven exceptionally burdensome and highly resource-intensive for OSHA to conduct and defend.
Even for the PELs that exist, most have not been updated since they were first established in 1971. OSHA last attempted a major update to the PELs over 25 years ago, by its publication of a rule that would have modified 212 existing PELs, and added 164 new PELs for chemicals. However, this rule was challenged by industry and labor alike, and was ultimately vacated by the Eleventh Circuit Court of Appeals because it found that OSHA had not made the requisite significant risk and feasibility findings for each PEL issued or modified by the rule. Since this time, OSHA has pursued a “conservative course” and engaged in years of research, analysis and discussion with the regulated community, but has not updated any of its PELs. Suffice it to say, OSHA’s latest attempt at updating its PELs is being eagerly watched by stakeholders on all sides of the aisle.
Comments to OSHA’s Request for Information are due by April 8, 2015.