OSHA’s General Duty Clause Loophole

William H. Kincaid
in food,safety

As a rookie OSHA Safety Engineer I was taught when there was a specific rule for a particular condition, we had to use that rule, and not try to hold an employer to a stricter standard by writing a Section 5(a)(1) “General Duty Clause” citation.   The Field Inspection Reference Manual says, “Section 5(a)(1) shall not normally be used to impose a stricter requirement than that required by the standard.  For example, if the standard provides for a permissible exposure limit (PEL) of 5 ppm, even if data establishes that a 3 ppm level is a recognized hazard, Section 5(a)(1) shall not be cited to require that the 3 ppm level be achieved unless the limits are based on different health effects.”

Therefore, as long as the employer was in compliance with whatever the rule book says, anything covered in that rule book was off-limits for General Duty Clause citations.  And that’s how most of us understand it.   When we have our air tested for chemicals often used in the food trades, such as ammonia, sulfur dioxide, flavorings and additives, we are checking to see if levels are below the OSHA PELs.   We think complying with the published rules will be enough.

But there’s an exception, a loophole so rarely used, even some OSHA inspectors might not be familiar with it.  It’s stated this way:  An exception to this rule may apply if it can be documented that an employer knows a particular safety or health standard is inadequate to protect his workers against the specific hazard it is intended to address.”

This exception was just used to cite an employer for having airborne concentrations of styrene below the published OSHA permissible exposure limit!  A Wisconsin company was using prison labor in their fiberglass molding plant.  One of the convicts went to see a doctor who determined the convict worker had been made ill by styrene used in the plant.  Then the doctor and the convict’s lawyer filed referrals on behalf of the convict to initiate an inspection.  This resulted in citations including a serious General Duty Clause citation for excessive styrene with a fine of $6300, although the measured levels were below the PEL.        

Nothing in the available information shows how the company knew the styrene PEL “is inadequate to protect (their) workers against the specific hazard it is intended to address”, and the case is still open.   If the company contests it and wins, it would discourage this sort of improvisational rule-writing and enforcement.  However, if the citation is upheld, this successful use of the exception would reinforce OSHA’s will to use it.   And who at OSHA sounds like he’d really, really like to enforce stricter standards than those in the OSHA rulebook, particularly the outdated PELs which date back to before 1989?

Listen to the guy who runs OSHA, Dr. David Michaels: “There is no question that many of OSHA’s chemical standards are not adequately protective,” Dr. Michaels recently said, presenting a set of stricter “recommended” levels for chemicals.  ”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’s right, of course.  OSHA’s PELs are outdated and under-protective, and unlikely to be revised anytime soon.  Entities such as NIOSH, ACGIH and Cal/OSHA, unfettered by the legal precedents and politics that hinder OSHA rulemaking, are more in line with current research.   It’s remarkably candid for the head of an agency to announce the agency’s rules have been outdated for a couple decades, and ask employers to do better than the rules allow.

Take Dr. Michaels’ statement as good advice, or maybe as a warning shot.   Just because your plant is “safely” below the PELs for airborne chemicals doesn’t mean your employees are safe from the harm chemicals can cause, and it doesn’t mean you’re safe from a citation.  Work to attain the recognized safe levels of airborne chemicals rather than merely aiming to meet OSHA PELs.


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