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Published: August, 2010; Vol 7, Num 3

 

Resolving the Decades Long PEL Debacle

In enforcing permissible exposure limits (PELs), OSHA, the federal agency created “to ensure safe and healthful working conditions for working men and women,” actually undermines its mission. However, with David Michaels as Assistant Secretary of Labor for Occupational Safety and Health, steps are now underway toward finding a different way to regulate toxic exposures.

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LIUNA General Secretary-Treasurer and LHSFNA Labor Co-Chairman
Armand E. Sabitoni

“We welcome this initiative from OSHA, which addresses a long-ignored but very serious problem,” says LIUNA General Secretary-Treasurer and LHSFNA Labor Co-Chairman Armand E. Sabitoni. “Research shows that at least ten times as many workers die from occupational diseases caused by chemical exposures than from occupational injuries. Toxics take the lives of an estimated 55,000 workers each year.”

Originally adopted to regulate contact with more than 400 chemicals, PELs are supposed to be the maximum average exposure  permitted for any worker. Employers use PELs to decide when to implement engineering or administrative controls and when to supply personal protective equipment (PPE) to prevent excessive exposures. Toxic exposures can lead to acute and chronic health effects like respiratory irritation, chemical burns, heart disease, neurological damage and cancer.

Dealing with new chemicals is one gaping part of the PELs problem. OSHA originally intended to update its established PELs as new information became available. However, regulatory snags imposed by Congress and the courts, as well as a lack of resources for OSHA to assess toxic risks, have resulted in only a few being updated in the past 40 years.

As the President’s Cancer Panel notes, more than 80,000 chemicals and chemical mixtures flood today’s marketplace. For most, PELs have not been established as there is no requirement for study or regulation of new chemical products. This means that workers routinely endure numerous, unknown toxic exposures.  Many pay with their lives.

Meanwhile, many PELs that do exist are so out of date that they, themselves, are health hazards. Adopted in 1971, these PELs reflect threshold value limits (TVLs) developed from less sophisticated 1950- and 1960-era research methods. Only a handful – and just one since 1990 – have been updated. As a result, today’s PELs actually allow companies to legally expose employees to toxic chemicals without providing appropriate protections and with serious consequences. 

OSHA’s attempt to update and add to its list of PELs was thwarted by the Eleventh Circuit Court of Appeals in 1989. Citing OSHA’s inability to establish the actual health risks of various toxics or that new, proposed PELs were economically or technologically feasible, the Court threw out a final rule that would have lowered PELs for 212 toxins and determined new PELs for 164 others, based on revised TVLs from the American Conference of Government Industrial Hygienists (ACGIH). In effect, the Court barred blanket updates of OSHA PELs. Unable to find a way around the Court’s decision, OHSA has all but given up toxics regulation.

Michaels is uniquely suited to tackle this difficult problem. Trained as an epidemiologist, he is very familiar with the evidence needed to demonstrate chemicals as hazardous.  He also has published extensively on how the regulation of chemicals is thwarted by industry (see review of his book Doubt is Their Product). While head of occupational safety and health for the Department of Energy, he promulgated a long overdue standard to protect workers from beryllium exposure. 

Under Michaels’ stewardship, an OSHA PELs Taskforce has been assembled to study alternatives. At a June stakeholders’ meeting that Michaels attended, various options for addressing chemical hazards were explored:

  • A substance-by-substance review, in which PELs would be updated through rulemaking, is problematic due to the lengthy process for rulemaking.
  • A control-based approach, which is similar to control-banding, provides an ongoing system for employers to evaluate chemical exposures in their particular workplaces, but may face difficult legal challenges proving that risk would be reduced.
  • A process/policy approach, which calls for extending use of the general duty clause, taxes OSHA’s already overburdened enforcement officers. 

As an interim step, LHSFNA staff urged OSHA to follow a suggestion from NIOSH Associate Director Matt Gillen that PELs be annotated with the date they were set.  Doing so would ensure that a chemical’s users are aware that its PEL is out of date and very likely insufficient in its protection.

“Although it often takes years to develop, toxic-related illness is among the most painful and debilitating illness that any Laborer can endure,” says Sabitoni. “Our members know, first hand, the danger of toxic exposure. To say that effective risk management is difficult cannot absolve OSHA of its responsibility to protect workers. They must find a way to get it done, and LIUNA is happy that today’s leadership is finally taking on this urgent task.”

[Janet Lubman Rathner]