by Eileen Senn
After decades of dysfunction, OSHA is poised to do something about their badly outdated rules for occupational exposures to chemical hazards. Millions of U.S. workers are exposed to chemicals every day at work, such as asbestos fibers in insulation, asphalt fumes in roofing and road work, carbon monoxide gas from burning fuels, chlorine in disinfectants, formaldehyde in bonded wood, isocyanates in foam, lead in bullets and solder, liquid mercury in instruments and light bulbs, solvents in cleaning products and paints, and silica in concrete. Yet most standards for chemicals on OSHA's books date back more than 40 years.
Permissible Exposure Limits (PELs) have been the lynchpin of OSHA's approach to addressing workers' exposures to chemical hazards. OSHA cannot require ventilation or engineering controls, respiratory protection, or medical tests unless the agency collects air samples that prove that employee exposures exceed a PEL. There are currently only 16 chemicals within 20 comprehensive OSHA standards with more up-to-date and comprehensive requirements.**
In OSHA's early years, it adopted the 1968 Threshold Limit Values (TLVs) of the American Conference of Governmental Industrial Hygienists (ACGIH) for about 500 chemicals and most remain in effect today. These PELs are listed in Tables Z-1, Z-2, and Z-3 in the OSHA standard on Air Contaminants, 29 CFR, 1910.1000. The "safe" level values for these compounds are not only woefully out of step with current scientific evidence of adverse health effects, but they address only a fraction of the chemicals in commerce to which workers are exposed. Furthermore, progressive European countries have moved away from exclusive dependence on exposure limits to preventive attempts to provide employers with the practical help they need to control chemicals, like COSHH Essentials in the United Kingdom and SOBANE in Belgium. Clearly, the U.S. government's approach to protecting workers' health from chemical hazards is long overdue for substantial reforms.
The Obama Administration's Labor Department seems poised to act on this critical worker health issue. On June 24, 2010, OSHA convened a 1-day meeting of over 30 industry and labor experts, as well as representatives from the CDC's National Institute for Occupational Safety and Health (NIOSH) to discuss their PEL predicament. OSHA's primary legal advisor---an associate solicitor of labor---described the procedures OSHA must follow in order to set new PELs, such as demonstrating a significant risk of harm and assessing economic and technological feasibility. Other hurdles in the rulemaking process include a special review by small businesses, and polarized and well-financed, anti-regulatory stakeholders. As a result, OSHA rulemaking often takes more than 4 years to complete. Using traditional approaches means that regulating workers' exposure to chemicals substances will only happen one at a time.
During this "PEL Chat", OSHA staff presented, at my request, an overview of inspection data in which PELs were assessed. The overwhelming majority of employers (95%) were complying with the existing PELs. Since I have worked as an industrial hygienist (IH), I can assure you that OSHA's IH's do not go to the trouble of collecting air samples to identify chemical contaminants unless they think there is serious worker exposure. Efforts to enforce the OSHA PELs are futile. It requires an inordinate amount of OSHA funds and staff time to purchase, maintain, and calibrate expensive sampling equipment, on top of that is collecting and analyzing the samples. OSHA's industrial hygienists collected 2 million of these samples from 1979 to 2007. The cost of doing this was certainly enormous, and had questionable value in addressing workers' exposures to chemical hazards.
Options Being Considered by Federal OSHA
OSHA says it is considering the following potential options to address the PEL problem. The agency staff noted that these options are not mutually exclusive and a combination of approaches may be the best way to proceed.
Substance-by-Substance Rulemaking
- Update the current list of OSHA PELs through rulemaking
- Identify particular chemicals that need revised PELs based on high production volume and proceed with substance specific rulemakings on them
- Repeal outdated PELs through rulemaking and address chemical hazards through another approach
Control-Based Approaches
- Use a forthcoming Injury and Illness Prevention Program (I2P2) rulemaking to require employers to assess and control workers' exposure to chemical substances
- Require employers to develop exposure limits
- Use hazard classification under the globally harmonized Haz Com standard to link to control banding non-mandatory recommendations
- Adopt mandatory control provisions triggered by hazard classification
- Adopt mandatory generic exposure monitoring and medical surveillance for all chemicals
Process/Policy
- Extend existing General Duty Clause authority by issuing a directive outlining employer duties as they relate to chemical exposures
- Amend 1910.1000 through rulemaking to add requirement to assess exposures
(recalling that the OSHA PELs themselves are outdated)
- Amend OSHA standards related to personal protective equipment (1910.132 and 1910.134) to clarify employers' responsibilities to assess workers' exposures to chemical substances
Public Health and Worker Safety Advocates Discuss Options for Chemicals Policy
Several groups discussed the range of options OSHA is considering November 6 to 10 in Denver at the 138th American Public Health Association (APHA) Annual Meeting and the National Worker Health and Safety Summit, sponsored by the National COSH and the Occupational Health and Safety (OHS) section of APHA.
Dorothy Wigmore, MS and I led a workgroup on Reforming OSHA Chemical Policy at the Summit. Our diverse group included three family members of workers killed by chemicals, an occupational physician, two academic researchers, and four industrial hygienists. We didn't have faith in substance-by-substance PEL approaches because there doesn't seem to be enough time, money, toxicity data, or political capital to do the job right. We especially liked OSHA using the General Duty Clause, Control Banding, and requiring employers to find and fix worker chemical exposures as part of the I2P2 rule-making. A meeting of the APHA OHS industrial hygiene subcommittee reached similar conclusions on Sunday morning.
On November 8 at the APHA, Assistant Secretary of Labor for OSHA David Michaels announced that OSHA is planning a "Dirty Dozen" campaign to use the General Duty Clause to protect workers from a set of chemicals for which the PELs are especially inadequate or non-existent. Dr. Michaels stated that employers will be given plenty of notice of the chemicals and their hazards before General Duty inspections are undertaken. This will be an ambitious experiment to see if OSHA can routinely meet the considerable legal requirements to issue General Duty violations. Dr. Michaels gave no indication of what chemicals will be included, but perhaps the decision will be informed by the results of the Web Forum OSHA hosted during August for identifying hazardous chemicals for which OSHA should develop exposure reduction strategies.
When OSHA publishes a pre-proposal I2P2 draft, we will find out whether or not they include chemical hazards. I see no legitimate reason why OSHA should treat chemical hazards differently than other hazards in this rule-making. Employers can learn to find and fix chemical hazards just like any other hazard. I lay out the seven steps involved in a new checklist from the New Jersey Work Environment Council, Finding Chemical Exposures and Negotiating Fixes.
We are almost two years into Obama's OSHA; workers certainly deserve to see action on chemical hazards within the next six months. As OSHA charts its course and unveils the "Dirty Dozen" campaign and a draft I2P2 standard, we will continue discussions here on how OSHA can effectively address chemical hazards.
**[Note: the 20 comprehensive OSHA standards addressing specific chemicals are: Acrylonitrile (1910.1045), Arsenic (inorganic) (1910.1018), Asbestos (1910.1001, 1926.1101, 1919.1001), Benzene (1910.1028), 1,3 Butadiene (1910.1051), Cadmium (1910.1027 and 1926.1127), Chromium (VI) (1910.1026), Coke oven emissions (1910.1029), Cotton dust (1910.1043), 1, 2 -Dibromo-3-chloropropane (DBCP) (1910.1044), Ethylene oxide (1910.1047), Formaldehyde (1910.1048), Lead (1910.1025 and 1926.62), Methylene chloride (1910.1052), Methylenedianiline (1910.1050), and Vinyl chloride (1910.1017).]
Eileen Senn is an industrial hygienist who has performed occupational health work for government and unions for 40 years. She was an OSHA industrial hygiene inspector in Philadelphia for eight years in the 70s and 80s. She directed an OSHA New Directions training grant from 1979 to 1981. She worked in occupational health surveillance for the state of New Jersey from 1986 to 2002. She has been an Independent consultant for the past eight years. She is perhaps best known for her seminal article, Playing Industrial Hygiene to Win.
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Eileen is still at it. Still painting with very a broad brush. She has made a career of demonizing all employers as "exploiters" and all employees as "victims". Forutnately, her anarchical view of industrial health has been soundly rejected by clearer thinking professionals who solve problems by applying accepted science and constitutional rights, rather than a fear mongering political ideology. In her article, Ms. Senn did not make clear her real opinion of PELs i.e that thy should ALL BE ABOLISHED and that worker should have complete control over saying when and how they would work without regard to their actual risk or exposure level!
Yes - OSHA's many of PELs are woefully outdated. However, as Ms. Senn points out, many of these chemicals have limited usage today. It concerns me that an uninformed reader of this rant might gleen that OSHA is feckless and its positive effect on worker safety and health negligible. Nothing could be further from the truth. Speaking as a past OSHA compliance officer, OSHA IH Supervisor, OSHA Area Director and National Office Director, I have witnessed the sure progress OSHA has made resulting in a steady trend in reduced injuries, illnesses and fatalities over my 33 yr career.
As Ms Senn has dubbed it, "Obamas's OSHA", according to some, has become hyper focused on punishing employers - the bad AND the good.
Do workers deserve to be protected.. YOU BET THEY DO
Do the vast majority of honest, hard working employers deserve not be held in contempt by the regulators and the scientists upon whom they depend to guide them... YOU BET THEY DO!
David Ippolito CIH (retired)
Mr. Ippolito,
I'd hardly characterize Eileen Senn's post as a rant. I think she does a service to readers by explaining her first-hand knowledge of OSHA's current thinking to address the PEL dilemma. As she explains in her post, she was one of the select group of individuals chosen by OSHA to attend their 1-day meeting in June. I think she does make clear in her post that other countries----yes, not just anarchists---have determined that relying on OELs is an inadequate approach to protect workers' health. These approaches have been adopted by "clearer thinking professionals" abroad because they know that determining a worker's "actual risk" and true "exposure" level is impossible. Even the most skilled epidemiologists, with the best data know that estimates of risk are calculated for a population, not an individual, and measures of total worktime exposures are crude at best. Forget about assessments of multiple exposures to chemical, physical, biological and organizational factors.
I don't see anything in Ms. Senn's post to suggest that OSHA has not had a positive impact overall on worker health and safety. I think she believes, as I do, that there is still much work to be done to protect workers from chemical hazards, and OSHA has a role to play in that effort.
Mr. Ippolito's post came off as angry and frustrated. Workplace fatalities are certainly cause for high emotion--especially on the part of workers! Indeed, industry standards may make it harder for employers to generate profit, but let's be clear about our priorities: When's the last time an employer died from an occupational hazard?? It is not the boss who faces injury, disease, disability and even death from a work process. Rather, it's us, the workers!
It is in this context that I would like to comment. Mr. Ippolito writes: "I have witnessed the sure progress OSHA has made resulting in a steady trend in reduced injuries, illnesses and fatalities over my 33 yr career." That steady trend of reduction is a sure comfort to the workers whose lives have been mercifully spared by increased OSH regulation and enforcement. And yet, what about those of us whose lives have been lost, cut short, mangled? For those who've lost life and limb to industry, the mercy of the employer and OSHA are simply not enough.
We point blank reject Mr. Ippolito's logic: that OSHA and 'good' employers are doing the best that they can and that that should be sufficient. This logic balances lives against profit and industry. In my book the two are simply incommensurable. Indeed, for those of us who face danger every day for a paycheck, we give a good goddamn for the well-meaning intent of employers and even of OSHA. We don't continue to work because we don't mind the threat of fatal disease and deforming accidents--quite simply, we work because we have to, because we have no alternative.
And in that context, ANY DEATH, ANY EXPOSURE, ANY DISFIGUREMENT is an unacceptable outcome. To Ippolito and company worker deaths may be statistics to be managed. But these are our wives and brothers, husbands and fathers. Regulations that continue to allow for workplace fatalities and severe injuries are insufficient regulations. Period. We want harsher regulation and better work practices until our safety is GUARANTEED.
To us, it is hardly fair or sensical that negligence which can result in death and disfigurement is cause simply for a small fine. We are not a statistic to be managed.
We work because we must in order to survive; our employers receive by far a greater share of the produce of our labor, for indeed, they are paid far more than are we. And so how could any single death or disfigurement--accident or otherwise--be acceptable to us? If the logic of the employers is that a trend towards reduction in workplace accidents is proof of good faith and is a reasonable improvement that should satisfy all parties, if that is their logic, then it would seem that the logic of the employers and those of the workers are irreconcilable.
There are those among us workers who accept no accident, no disfigurement and no death for the sake of productive efficiency. This is the correct logic. Not the apologism of Mssr Ippocrito--not even the well-meaning reformism of Madame Monforton.
It was the workers' and their logic that created OSHA, that pressured official society for a regulatory response to workplace unsafety. It was the dedication and clear-mindedness of working people, who refused to accept the logic of collateral damage, that led them to rise up after the New York triangle fire of the early 20th century. Without the uncompromising organization of workers, the death-rate would today remain as high as it was then. And today, those of us who carry the torch of this logic, while we appreciate C Monforton's intentions and work, we simply cannot abide the continued attrition and danger imposed upon us by our employers' need for profit.
Furthermore, we decidely reject the guilt-ridden calculations of Mr. Ippolito as the justiciations of the employing class, who accept our losses as a cost of doing business.
I especially liked youur summary of the meetings and their conclusions from the national APHA meeting in Denver. I wish I could have been there, and it was helpful to read your insightful comments.
Mary C. DeVany
When certain chemicals are banned or tightly regulated, the chemical industry creates a new similar chemical demonstrating in their "tests" its safety.
We can no longer trust the chemical industry with any studies that are funded by themselves. Also, while small in percentages, a significant amount of people are drastically harmed by very low exposures to many chemicals.
Mr. Ippolito's comments are quite remarkable in that he is guilty of what he accuses Ms. Senn: an ideological rant. He accuses her of tarring all employers as bad and all workers as victims. And yet Ms. Senn doesn't make a single comment about employers or workers in general. She speaks mainly about the problems with enforcing the PELs (too costly to be done thoroughly) and enforcing them (too time consuming to be practical), and explains that PELs are too few and outdated. She suggests that OSHA should follow the lead of many other countries which no longer rely on PELs. I think Mr. Ippolito is trying to tar Ms. Senn with the brush of left-wing ideologue, and in ranting about that, he is unable to see what she is actually saying. I have known Eileen Senn professionally and personally for over 40 years, and I have never witnessed a whisker of ideological demagoguery. Rather, she always brings a clear, practical and visionary perspective to industrial hygiene, as she does in this post.
I get amazed though when the government mandates that we switch to a New product that is better for the environment, and it causes more problems. CFL's are a perfect example. In order to be green, we now have to have Hg exposure for the workers. I have seen the same when TCE was switched for TCA solvents, and the total worldwide ban on DDT has led to Malaria outbreaks.
If they based their decisions on Science instead of politics I could go along with it.
It's really awful that so many people have to risk their health for their job. This really shouldn't be the case because no matter how much money you make nothing is worth more then your health. Your health is priceless.