OSHA uses General Duty Clause to Work Around Obsolete PELs

OSHA shifts tack with obsolete PELs and fines a company under the General Duty Clause for exposing workers to high levels of styrene vapor, resulting in lung injuries, despite the measured styrene concentration being below the outdated OSHA PEL. To do so, OSHA uses third party occupational exposure standards as the accepted standard of care instead of the PEL.

OSHA inspected a fiber glass factory and issued a fine in September for $49,500, in part for exposing workers to high levels of styrene—even though OSHA determined that styrene exposure at the factory was below OSHA's Permissible exposure limit (PEL) for styrene (currently 100 ppm 8 hr TWA, 200 ppm ceiling)

The OSHA (PELs) are widely acknowledged to be out of date, most being over 40 years old. OSHA recognizes that some of the PELs do not adequately protect worker health and in some cases are far above other exposure standards such as the the ACGIH TLVs (TLV for styrene = 20 ppm 8 Hr TWA, 40 ppm STEL (ACGIH 2008)) and NIOSH recommended exposure limits. (REL for styrene = TWA 50 ppm (215 mg/m3) ST 100 ppm (425 mg/m3))

OSHA tried to update the PELs in the 1980s, but the revised PELs were struck down by the 11th Circuit Court of Appeals in 1992 on the grounds that OSHA did not sufficiently demonstrate that the new PELs were necessary or that they were feasible.OSHA's PEL for styrene that was struck down was 8 hr TWA 50 ppm (215 mg/m3), STEL 100 ppm (425 mg/m3), or half the current limits, but still two and half times the ACGIH's TLV.

For OSHA to prosecute an employer for exposing employees to a chemical vapor below the PEL, OSHA must use the General Duty clause in the 1970 Occupational Safety and Health Act, Sec. (5), Duties.

(a) Each employer --
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;...

To successfully prosecute under the general duty clause, OSHA must prove that the employer failed to provide a safe work environment and consequently that the styrene exposures were greater than safe levels, i.e. above the safe occupational exposure level (perhaps the ACGIH TLV).

It places OSHA in the ironic position of having to use another organization's occupational exposure limit, rather than the PEL and is a sad reflection on the inability of the agency to update its standards such that it must use this approach. However, OSHA appears to have decided that it needed a work-around for its obsolete PELs involving recommended third party occupational exposure limits and use of the General Duty clause.

As this blog recently reported, OSHA posted on its website an annotated table of exposure limits that includes occupational exposure limits from third-party organizations such as ACGIH and NIOSH that, for many chemicals, are much lower than the OSHA PELs. The fiber glass factory, (Fiberdome Inc) has already said that it intends to appeal. If the court accepts OSHA's approach, we can expect to see OSHA applying the same tactic against many other employers that use chemicals whose PELs are obsolete.

For employers it means that the compliance with OSHA PELs is no longer a bright line safe harbor and if workers are experiencing symptoms of chemical exposure, employers must take appropriate measures to protect their people and look to other applicable standards such as ACGIH. Appropriate measures include engineering controls (air turn overs, exhausts), continuous gas monitors, PPE and of course training on how to use the chemicals safely.

Peracetic Acid Spills in Hospitals - an Administrators nightmare

Every hospital administrator's nightmare is to see hazmat crews dressed in white overalls breathing through respirators running into their facility in front of the TV cameras while staff are evacuating patients in response to a chemical spill. High level disinfectant (HLD) chemicals such as peracetic acid are an essential part of modern healthcare, being used to disinfect those items that cannot be heat treated. These HLDs are used safely everyday across the world; but if something goes wrong, these chemicals pose a risk to anyone exposed to them and the administrators start having those dreams again.

Recently a few adminstrators had to face this very problem.On November 8th, over 100 staff and outpatients were evacuated from Harrogate Hospital, in the UK after a spill from a drum of peracetic acid in the endoscopy department. Closer to home, on November 15th a hazmat crew responded to report of a leaking peracetic acid container at a dialysis unit of Cape Coral Hospital in Florida.

In February last year Llandudno Hospital, Wales evacuated their outpatient department due to a peracetic acid spill and in June a peracetic acid spill at the Northbay Surgical Regional Center in Novato, CA resulted in one employee being treated for throat discomfort from the acid fumes. and evacuation of the first-floor patients who were able to walk, while three surgery patients who were semi-sedated were sheltered in a sealed room with their attendants. In 2010 another spill had Addenbrook's hospital near Cambridge, UK in 2010 evacuate staff and patients.

Peracetic acid is widely used as a high level disinfectant because of its superior antimicrobial properties but like all high level disinfectants, it poses a risk to anyone exposed to it. These hazards are well recognized and the ACGIH has proposed a TLV of 0.4 ppm 15 minute STEL.

Peracetic acid spills and leaks can occur form many reasons including container failure, equipment malfunction, wear and tear and of course human error. Leaks may be as vapor or liquid, though with the latter, there will always be vapor associated with liquid. Therefore when using peracetic acid it is important to employ good engineering controls, continuous gas monitoring, person protective equipment and good training etc.

Some problems appear suddenly and if the problem results in the release of peracetic acid vapors a continuous gas monitor will sound an alarm if the concentration approaches hazardous levels. However, many, perhaps most problems develop gradually over time. For these problems, a continuous gas monitor may provide an alert of the problem before it becomes a major issue. For more information about continuous gas monitors for peracetic acid or other gases and vapors contact ChemDAQ by e-mail at info@chemdaq.com or by telephone at 412-787-0202.

Government News: OSHA proposes new rules to increase reporting of workplace injuries

OSHA has announced proposed rules to increase reporting of workplace injuries and illnesses. Employers are currently required to keep records of workplace injuries and illnesses but under the new rules instead of just recording injury data, OSHA would require companies with more than 250 employees and some smaller high-risk organizations to report quarterly on-line. The proposed rules are available on-line in the Federal Register and the public has until Feb. 6, 2014 to submit written comments.

For comparison, the current reporting/recording regulations are summarized below.

Reporting
If an employee is killed in a work place related accident or three or more employees are hospitalized then Under the current regulations (29 CFR 1904) the employer must orally report the death to OSHA within eight (8) hours.

Recording
Employers are also required to keep records of serious occupational injuries and illnesses, using the OSHA 300 Log (with certain exceptions for very small and/or very safe workplaces)

OSHA Lists the recordable events as follows:

• Covered employers must record all work-related fatalities.
• Covered employers must record all work-related injuries and illnesses that result in days away from work, restricted work or transfer to another job, loss of consciousness or medical treatment beyond first aid.
• In addition, employers must record significant work-related injuries or illnesses diagnoses by a physician or other licensed health care professional, even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness.
• Injuries include cases such as, but not limited to, a cut, fracture, sprain, or amputation.
• Illnesses include both acute and chronic illnesses, such as, but not limited to, a skin disease (i.e. contact dermatitis), respiratory disorder (i.e. occupational asthma, pneumoconiosis), or poisoning (i.e. lead poisoning, solvent intoxication).
• OSHA's definition of work-related injuries, illnesses and fatalities are those in which an event or exposure in the work environment either caused or contributed to the condition. In addition, if an event or exposure in the work environment significantly aggravated a pre-existing injury or illness, this is also considered work-related.

Annually, the summary of all incidents must be posted in a public area where employees can see it.

Further information about the current requirements is available at https://www.osha.gov/recordkeeping/.