Kim. The OSHA regulations are a little like the Bible. Whatever position you want to take, you can find back up for it somewhere in there. And letters of interpretation are regularly rewritten, amended and even dropped from the list. The wording of the 1970 Act that creates OSHA clearly does not include enforcing rules that are not protective.
After OSHA's updated 1989 PELs were vacated in 1992, OSHA's announcement of the action included the statement that they "believe that many of the old limits which we will now be enforcing are out of date (they predate 1968) and not sufficiently protective of employee health based on current scientific information and expert recommendations. In addition, many of the substances for which OSHA has no PELs present serious health hazards to employees." 58 FR 40191, July 27, 1993
I think OSHA already cited for the diacetyl exposures and they have no PEL for this stuff. The General Duty clause allows citations for a "recognized hazard." So they have already acted on this second sentence above.
Now it remains to find a test case for citing for exposures to a substance for which the PEL was clearly not protective and the employer should have known it was a recognized hazard. I have some PELs in mind as guesses already for which there is growing industrial evidence and for which the PEL is 10 or more times higher.
If this battle was about OSHA PELs vs. ACGIH TLVs, the PELs would win. But OSHA will not defend their PELs.. This battle is actually is OSHA vs their own PELs. The Annotated Z-tables are another strategy in that battle. This table is OSHA's tacit endorsement of the validity of the TLVs, the RELs and the California standards which are based on and started out as the vacated OSHA PELs! So OSHA is not giving up on trying to update the PELs.
Enforcing standards that most of the world and OSHA knows are not protective sooner or later will fall as policy--especially because the enforcing agency wants it to fail. It's only the "how" we wait to see.
Monona Rossol, M.S., M.F.A., Industrial Hygienist
President: Arts, Crafts & Theater Safety, Inc.
Safety Officer: Local USA829, IATSE
181 Thompson St., #23
New York, NY 10012 212-777-0062
From: Kim Gates <kim.gates**At_Symbol_Here**STONYBROOK.EDU>
To: DCHAS-L <DCHAS-L**At_Symbol_Here**MED.CORNELL.EDU>
Sent: Mon, Oct 28, 2013 7:17 am
Subject: Re: [DCHAS-L] OSHA provides new information on chemical safety
I believe OSHA will only continue to cite for exceeding the PEL and not the annotated OELs for chemicals on the OSHA list. The press release says:
"OSHA also created another new web resource: the Annotated Permissible Exposure Limits, or annotated PEL tables, which will enable employers to voluntarily adopt newer, more protective workplace exposure limits. OSHA's PELs set mandatory limits on the amount or concentration of a substance in the air to protect workers against the health effects of certain hazardous chemicals; and OSHA will continue to enforce those mandatory PELs. Since OSHA's adoption of the majority of its PELs more than 40 years ago, new scientific data, industrial experience and developments in technology clearly indicate that in many instances these mandatory limits are not sufficiently protective of workers' health."