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OSHA ‘Voluntary’ Chem Limits Seen as Boon for Tort Lawyers

Volume 2, Issue 9
May 15th, 2014
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Late last year OSHA issued new “voluntary” standards for workplace chemical exposure instead of engaging in the time-consuming and bothersome notice-and-comment rulemaking process that is required when writing a new regulation.

These new voluntary exposure limits can be found on OSHA’s website in tabular format, allowing for side-by-side comparisons of OSHA’s existing permissible exposure limits (PELs) with these new, voluntary exposure levels.

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.

“Of course, from a regulatory perspective, OSHA can only enforce its existing PELs,” said attorney Steven M. Siros of the law firm of Jenner & Block.

“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),” he added.

OSHA said these new limits were recommended by organizations such as the National Institute for Occupational Safety and Health and the American Conference of Governmental Industrial Hygienists.

“There is no question that many of OSHA’s chemical standards are not adequately protective,” said Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health.

“I advise employers, who want to ensure that their workplaces are safe, to utilize the occupational exposure limits on these annotated tables, since simply complying with OSHA’s antiquated PELs will not guarantee that workers will be safe,” he stressed.

A table with a comparison of PELs and the new limits is available atwww.osha.gov/dsg/annotated-pels/index.html. An OSHA toolkit identifying safer chemicals used in place of more hazardous ones, is at:  www.osha.gov/dsg/safer_chemicals/index.html.

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