Instead of engaging in notice and comment rulemaking, the Occupational Safety and Health Administration ("OSHA") recently issued new "voluntary" standards for workplace chemical exposure. These new voluntary exposure limits can be found on OSHA's website in a tabular format, allowing for side-by-side comparisons of OSHA's existing permissible exposure limits ("PELs") with these new, voluntary exposure levels recommended by organizations such as the National Institute for Occupational Safety and Health and the American Conference of Governmental Industrial Hygienists.
According to David Michaels, OSHA's existing chemical standards are not adequately protective and he advises employers to utilize these recommended exposure limits "since simply complying with OSHA's antiquated [PELs] will not guarantee that workers are safe." Of course, from a regulatory perspective, OSHA can only enforce its existing PELs. From a toxic tort exposure perspective, however, plaintiffs' counsel are sure to argue that these "voluntary" standards establish the appropriate exposure threshold and that any exposure above these voluntary standards is harmful (and in turn, compensible). For many chemicals, the difference between the enforceable PEL and the voluntary limit is substantial. For example, the OSHA PEL for tetrachloroethylene is 100 ppm and the new voluntary standard is 25 ppm.
Please click here to see a copy of the OSHA news release on this topic.