What to Do with Chemicals Without PELs

What do you do with hazardous chemicals for which OSHA has not designated a permissible exposure limit? Absent a PEL, you need other guidelines to protect employee health. But what are they?

When there is no specific regulation concerning a hazard, the general duty clause kicks in. But it merely states that employers must “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.”

Precisely how do you interpret that all-encompassing directive for specific chemicals for which there are no explicit regulatory exposure limits?

A good way to learn more about protecting employees from hazardous chemicals without PELs is to refer to guidance OSHA has developed for its enforcement staff.

For the many chemicals for which OSHA has not developed PELs, OSHA compliance staff generally look to other occupational exposure references and recommendations to inform their assessments of compliance with the general duty clause.

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Other Exposure Limits

The most commonly available sources or reference points are the occupational exposure levels proposed by other agencies and organization. For example:

  • Recommended exposure limits (RELs), established by NIOSH
  • Threshold limit values (TLVs), published by the American Conference of Governmental Industrial Hygienists (ACGIH)
  • Workplace environmental exposure levels (WEELs), published by the American Industrial Hygiene Association (AIHA)

In some cases, manufacturers have also conducted literature searches or studies and have proposed occupational exposure recommendations for chemicals they manufacture.

It must be emphasized that none of these references or recommendations constitute an OSHA PEL or a national consensus standard. Rather, OSHA inspectors have been instructed to recommend occupational exposure levels such as TLVs as guidelines that are not meant to be enforced in and of themselves.

Exceeding an occupational exposure recommendation is not the hazardous or violative condition; rather, under the general duty clause, the hazardous or violative condition is that employees were exposed to harmful levels of a chemical.

In the majority of such cases, the local OSHA area office would send a letter advising the employer that an occupational exposure recommendation has been exceeded. The letter would also recommend exposure control measures.

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Part of a Larger View

Of course, RELs, TLVs, and WEELs are only part of a larger view inspectors must take before making a compliance determination. Accordingly, when evaluating a potential hazard, the compliance officer will document how the chemical is being used, any efforts the employer has taken to reduce the hazard, and any adverse health effects that may be experienced by employees.

In general, the compliance officer must establish that the hazard causes or is likely to cause death or serious physical harm even though the illness or death will occur only after a substantial period of time.

To do so, the compliance officer needs to substantiate the following:

  • Regular and continuing employee exposure at the workplace to the toxic substance at the measured levels could reasonably occur
  • Illness reasonably could result from such regular and continuing employee exposure
  • If illness does occur, the likely result is death or serious physical harm

OSHA recognizes establishing that the hazard to human health is caused by exposure to a chemical can be difficult when the illness results only after a long period of time. As a result, in some situations, expert testimony may be called in to establish that serious physical harm would occur with such illnesses.

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