Settlement Affirms OSHA's General Duty Clause

by Adele Lois Abrams on Nov. 09, 2014

Employment Occupational Safety & Health Employment 

Summary: OSHA has prevailed in prosecuting an employer whose workplace chemical exposures were within the legal limits but were above industry "best practices" ... This effort to enforce OELs using the General Duty Clause has significant ramifications on how OSHA may address the issue of outdated PELs.

Settlement Affirms OSHA’s GDC Citation For Exposures Below PEL
By Adele L. Abrams, Esq., CMSP
Law Office of Adele L. Abrams PC 
On July 31, 2014, OSHA announced that Fiberdome, Inc., a Wisconsin employer, agreed to pay a $2,000 penalty for a general duty clause citation issued by the agency for worker exposures to styrene that were below OSHA’s permissible exposure limit (PEL) of 100 ppm but were above its industry’s recognized 50 ppm level. The employer agreed to abate the citation by adhering to the styrene industry’s 1996 agreement to voluntarily adopt the lower exposure limit for an 8 hour time-weighted average. If the 50 ppm level cannot be reached through engineering and administrative controls, then an effective respiratory protection program will also be required.
The case is highly significant because there was technical compliance with the legally enforceable OSHA PEL, and because the agency has enforced what was a voluntary proactive initiative by an industry against one of its member employers. This settlement will likely encourage similar citations in industries where “best practices” have been adopted that go beyond technical compliance with OSHA standards, many of which are outdated and do not reflect the best technology or science concerning chemical exposures. The impact on industry alliances with OSHA, where a number of such “best practice” work products have been generated, remains to be seen.
The General Duty Clause (GDC), Section 5(a)(1) of the Occupational Safety and Health Act of 1970, is intended as a “gap filler” to address recognized hazards that OSHA has not yet regulated. To establish a violation of the GDC, the Secretary of Labor must prove: (1) that the employer failed to render its workplace free of a hazard which was (2) “recognized” and (3) causing or likely to cause death or serious physical harm and (4) that feasible means exist to free the workplace of the hazard. All GDC citations are serious in nature (although they can also be classified as willful or repeat) and they can only be issued if the employer’s own employees have exposure to the hazard. The Protecting America’s Workers Act, if adopted, would expand GDC citation powers to allow citations to a host employer or general contractor even if their employees had no hazardous exposures, as long as a contractor or subcontractor on site had exposed workers. 
To substantiate employer knowledge of a “recognized” hazard that has potential to cause death or serious bodily injury, OSHA looks at the employer’s own documents, contractual materials, industry guidance, voluntary consensus standards, manufacturer’s recommendations, and also “common sense” factors, among others.  A 2003 OSHA enforcement memo is relevant to the action taken in Fiberdome. It maintains that the agency cannot enforce a stricter limit than that adopted by OSHA, unless the “employer knows” that the standard is inadequate to protect workers. 
There was also a General Dynamics case (815 F.2d 1570, DC Cir. 1987) in which the US Court of Appeals reversed  OSHRC and reinstated a GDC citation where workers were exposed to Freon at levels below those in 29 CFR 1900.1000. In that case, the DC Circuit held that a standard does not preempt the applicability of the GDC “if an employer knows that [the] specific standard will not protect his workers against a particular hazard.”  Previously, the OSHRC had held that a GDC citation would not lie where a duly promulgated occupational safety and health standard is applicable to the condition or practice that is alleged to constitute a violation of the Act. When no specific standard entirely protects against the hazard alleged, citation under Section 5(a)(1) is proper. 
In applauding the Fiberdome settlement, OSHA’s area director stated: “OSHA believes that employers have the responsibility to further limit exposure to chemicals that can harm employees even if the level of such exposure is below OSHA permissible exposure limits.”  At the time that the citation was issued, in September 2013, OSHA also issued a news release, which noted: “Companies must be aware of the hazards that exist in their facilities and take all possible precautions to minimize the risk of illness.” In Fiberdome, the inspection was triggered by a referral with information that workers were becoming ill from styrene exposure even at the legal limits.
The Fiberdome enforcement action also raises the potential for OSHA to use guidance on chemical manufacturers’ Safety Data Sheets (SDSs) as a basis for imputing knowledge to employers in the future, if the SDS recommends exposure limits more protective than those adopted by OSHA in its air contaminants rules, or where OSHA lacks any PEL for a chemical substance.  
Moreover, in recent months, OSHA published on its website “permissible exposure limits annotated tables,” intended to provide employers and workers with alternate occupational exposure limits that may protect employees better than OSHA’s adopted PELs. These include Cal/OSHA PELs, the NIOSH Recommended Exposure Limits (RELs), and the most current ACGIH Threshold Limit Values (TLVs) among others.  Whether OSHA will seek to enforce these more protective standards in light of the agency’s success in Fiberdome, by imputing knowledge to the regulated community through their publication on the OSHA website, remains uncertain.  
If this approach to enforcing more protective exposure limits proves successful, it could be a solution to OSHA’s quandary of updating hundreds of PELs individually through the laborious rulemaking process. This approach cannot be used for enforcement of stricter exposure limits at mines, however, because the Mine Act lacks a General Duty Clause (although some proposed legislation would have added that power, it was not enacted).
It also remains to be seen whether OSHA could selectively enforce more protective exposure limits for respirable crystalline silica at ready-mix operations or in construction and demolition, based on some industry-adopted best practices that urge maintaining levels below the current PELs equivalent to 100 ug/m3 (general industry) and 250 ug/m3 (construction), while the OSHA rulemaking is in progress. The NIOSH REL for silica is 50 ug/ m3 (OSHA's proposed new PEL) and the ACGIH TLV is 25 ug/m3 (OSHA's proposed action level). 

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