Federal Advisory Council on Occupational Safety and Health Considers PEL Recommendations
The Federal Advisory Council on Occupational Safety and Health (FACOSH) met on May 3, 2012, during which it discussed revised recommendations on permissible exposure limits (PEL) from FACOSH’s Emerging Issues Subcommittee. FACOSH is authorized by the Occupational Safety and Health Act and Executive Order (EO) 11,612, as amended, “to advise the Secretary [of Labor] on all matters relating to the occupational safety and health of federal employees,” including providing advice on how to reduce the number of injuries in the federal workforce and “how to encourage each Federal Executive Branch department and agency to establish and maintain effective occupational safety and health programs.” Materials in the docket, which is available online, include a revised document entitled “Recommendations for Consideration by the U.S. Secretary of Labor on the Adoption and Use of Occupational Exposure Limits by Federal Agencies” (Recommendations), available online. According to the Recommendations, the Subcommittee “concluded that FACOSH should recommend Executive Branch departments and agencies use the most protective and feasible OELs in Federal workplaces, notwithstanding the existence of a PEL for a given substance of concern; require contractors, subcontractors, recipients, and subrecipients to use the most protective and feasible OEL while working on behalf of the Federal government; and designate a person deemed to be competent by virtue of training and experience to make recommendations regarding acceptable chemical exposure risks, appropriate OELs, and employee exposure controls.” More specifically, the Recommendations include a draft EO that would direct the heads of Executive Branch departments and agencies to require the use of the most protective OELs that are feasible, including American Conference of Governmental Industrial Hygienists (ACGIH) threshold limit values (TLV).
The Subcommittee examined how federal agencies use occupational exposure limits (OEL) published by other agencies, professional organizations, and other foreign or domestic entities, including OSHA PELs, National Institute for Occupational Safety and Health (NIOSH) recommended exposure limits (REL), ACGIH TLVs, American Industrial Hygiene Association (AIHA) workplace environmental exposure levels (WEEL), and Germany’s Maximale Arbeitsplatz-Konzentration (MAK) limits. OSHA adopted the current PELs, which were based on the ACGIH TLVs in effect in 1968. Since 1972, the Recommendations note, any changes or additions to PELs require following the formal rulemaking process, “which has hindered attempts to add new PELs or update others.” According to the Subcommittee, advances in scientific knowledge have led to a greater understanding of adverse effects, and NIOSH, ACGIH, and AIHA responded by issuing new or modifying existing OELs. The Recommendations note that, when modified, “more OEL values have decreased than have increased. For example, a comparison of the TLVs® from 1968 to 2011 reveals that over 200 TLVs® have decreased while only a half dozen have increased.”
According to the Recommendations, “t is unlikely that OSHA will promulgate significant numbers of new PELs.” The Subcommittee recommends that federal agencies address this “lack of regulatory progress by applying risk management principles and alternative OELs to occupational exposures.” The Recommendations note that some federal agencies, such as the Department of State, Department of Energy, and Army, already have policies requiring the use of an ACGIH TLV if it is lower than the OSHA PEL. The Recommendations conclude that current PELs are inadequate to protect federal employees and contractors, and recommend that the Secretary of Labor submit to the President a recommendation for an updated EO to amend EO 12,196, “Occupational Safety and Health Programs for Federal Employees,” directing the heads of Executive Branch departments and agencies to require the use of the most protective OELs that are feasible. The EO would also direct the Secretary of Labor to “publicize a list, updated every five years, of recognized research or regulating bodies whose OELs agencies must consider in complying with this requirement.”
While it is well recognized that OSHA PELs are often quite old and outdated, it is troubling that federal agencies could be directed to require the use of TLVs. At least one court has held that ACGIH is not a government advisory committee, and thus not required to follow the provisions of the Administrative Procedures Act, in Int’l Brominated Solvents Ass’n v. ACGIH (M.D. Ga. 2005), available online. What impact this recommendation may have is unclear particularly since the docket does not yet include the meeting minutes. In addition, OSHA’s February 13, 2012, Regulatory Agenda noted the “outdated” PELs, and stated that, as part of its “Regulatory Review and Lookback Efforts,” OSHA was developing a Request for Information (RFI) that would seek input from the public to help identify effective ways to address occupational exposure to chemicals. OSHA has not yet published anything further on the RFI, and it is unclear what, if any, effect FACOSH’s Recommendation would have on it. As it now stands, however, FACOSH’s Recommendations could potentially elevate the relevance and integrity of TLVs to a level disproportionate to their scientific reliability. Stakeholders need to be mindful of FACOSH’s Recommendations and ensure their workplace practices are sufficiently robust to rejoin any inferences that may arise as a result of them. At the least, however, the release of the Recommendations may invite renewed scrutiny on workplace exposures and how exactly employers are calibrating exposure levels and ensuring they are safe.