- Standard Number:
OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.
August 5, 1993
|MEMORANDUM FOR:||ALL DIRECTORATE HEADS
ALL REGIONAL ADMINISTRATORS
|FROM:||ROGER A. CLARK, DIRECTOR
DIRECTORATE OF COMPLIANCE PROGRAMS
|SUBJECT:||Compliance and Enforcement Activities Affected by the PELs Decision|
This memorandum provides specific guidance concerning compliance and enforcement of the Permissible Exposure Limits (PEL) listed in Table Z-1 of the amended 1910.1000 (58 FR 35338-351, June 30, 1993), formally listed in the Transitional Limits columns of Tables Z-1-A, and in Table Z-2 and Z-3 of 29 CFR 1910.1000.
On January 19, 1989, the Occupational Safety and Health Administration (OSHA) updated its existing Air Contaminants Standard, 29 CFR 1910.1000. OSHA amended existing PELs for 212 substances to more protective levels, increased an existing PEL for one substance, set new PELs for 164 substances that were not previously regulated, and after consideration, left the existing PELs of 51 substances unchanged. In addition, the existing PELs for 172 substances were not considered in the rulemaking and remained unchanged. The PELs were consolidated in a single table, Table Z-1-A, which also included the existing 1971 PELs under the "Transitional Limits" columns. The regulation permitted the use of any reasonable combination of compliance methodology until December 31, 1992. The compliance date was subsequently extended to December 31, 1993. After that date, compliance required the implementation of engineering controls.
The final rule was the subject of several legal challenges, and on July 7, 1992, the U.S. Court of Appeals, Eleventh Circuit, vacated the 1989 PELs listed in the "Final Rules" columns of Table Z-1-A of 29 CFR 1910.1000. Since that time, a stay of the Court's mandate implementing this decision allowed OSHA to continue to enforce the 1989 PELs while further legal action was considered.
On March 23, the Agency ceased enforcement of the 1989 PELs and began enforcement of the PELs listed in the "Transitional Limits" columns of Table Z-1-A, and in Table Z-2 and Table Z-3 of 29 CFR 1910.1000. On June 30, OSHA published at 58 FR 35338-351 an amended 29 CFR 1910.1000 to reflect the Court's decision. The amended 29 CFR 1910.1000 includes a new Table Z-1 which includes the exposure limits that had been contained in the Transitional Limits columns of Table Z-1-A and a new grain dust limit (see below) and reprints the existing Tables Z-2 and Z-3 with minor corrections. There are also consequential changes to the regulatory text of paragraphs (a)-(f). Guidance on the specific compliance and enforcement issues affected by the decision is as follows:
Beginning March 23, all citations issued must require compliance with the PELs listed in the Transitional Limits columns of Table Z-1-A, and in Table Z-2 and Table Z-3 of 29 CFR 1910.1000. Beginning June 30, all citations issued must require compliance with the PELs listed in Tables Z-1, Z-2, and Z-3 of 29 CFR 1910.1000. Citations for violations of the 1989 PELs that were issued through March 22, are valid if the contest period has elapsed and the citation has been issued as a final order. However, when follow-up inspections are conducted, Failure to Abate citations can only be issued to enforce compliance to the Transitional Limits or the "Table Z- 1" limits depending on whether these citations were issued before or from June 30.
a. Unregulated substances: When employee exposures exceed the 1989 PELs for the 164 substances that were not previously regulated or for any other unregulated substance, violations of the General Duty Clause may be considered. The criteria for issuing a 5(a)(1) citation must be demonstrated without reliance on the 1989 PELs (see specific guidance below), and be in accordance with the requirements of the Field Operations Manual (FOM), Chapter IV, A.2. Citations shall be issued only after consultation with the Regional Administrator and the Regional Solicitor. The following information may be useful in meeting the criteria:1) Recognized hazard: The compliance officer must establish that a recognized hazard from occupational exposure to an unregulated substance exists. The employer's knowledge of a recognized hazard can be demonstrated by documenting industry recognition or employer recognition of the hazard. Sources that could be used for demonstrating hazard recognition are studies used in the preamble of the 1989 Air Contaminants Standard, documentation of National Institute of Occupational Safety and Health (NIOSH) Recommended Exposure Levels (REL), documentation of American Conference of Government Industrial Hygienist (ACGIH) Threshold Limit Values (TLV), and industry studies and publications.b. Regulated substances: When employee exposures are between the 1989 PELs and the transitional limits (from June 30, the "Table Z-1" limits) the issuance of 5(a)(1) citations may also be considered. The issuance of 5(a)(1) citations must be in accordance with the requirements specified in section 1.a.1 and 1.a.2 in this memorandum, where it can be established that there are serious human health effects documented at exposure levels approximating the sampled exposure which is the basis for the hazard. Citations shall be issued only after consultation with the Regional Administrator and the Regional Solicitor. In addition, the CSHO must demonstrate specific employer knowledge of a hazard at the documented exposure level. See FOM, Chapter IV, A.2.d.(2). Factors that could show employer knowledge include:
2) Seriousness: The compliance officer must look at the documentation of the ACGIH TLVs, NIOSH RELs and other sources of information which document serious health effects at specific exposure levels. CSHOs must also determine if there is significant documentation of serious health effects at the sampled exposure level. Minor irritation, for example, or reversible effects without serious health consequences would not meet this criterion.1) A prior notification letter to the employer explaining that employee exposure to toxic substances at levels recognized as hazardous by such experts as NIOSH and the ACGIH is lower than that set by OSHA's standard.
2) A physician's request for removal of an employee from activities involving exposure to hazardous substances at the documented exposure level where a serious human health effect was diagnosed.
2. 5(a)(1) Letter and Other Letters of Notification
a. 5(a)(1) Letter: Where the compliance officer determines that a serious hazard exists but the criteria for a 5(a)(1) citation cannot be met, a 5(a)(1) letter describing the hazard and suggesting corrective action may be issued in accordance with the FOM, Chapter IV, A.2.
b. Other letters of notification: When an inspection documents employee exposures above the 1989 PELs but below the transitional limits (from June 30, the "Table Z-1" limits), the Area Director should notify the employer and encourage reduction of employee exposures to more protective levels. A sample notification is attached. (The notification need not be sent to the employer if the exposure is the basis for a 5(a)(1) citation or 5(a)(1) letter.)
3. Contested Cases and Settlements
The PEL-related provisions of contested cases will be amended by the Solicitor's office to the transitional limits (from June 30, the "Table Z-1" limits) or to an alleged 5(a)(1) as an alternative if warranted by the circumstances of overexposure. Settlement provisions such as specific engineering controls, respirator program elements, work practices, training, and notifications are enforceable only if they are not tied to the 1989 PELs.
4. Skin Designation
Paragraph (a)(4), "Skin Designation," of the 1989 Air Contaminants Final Rule was deleted from the regulation in the June 30, 1993 Federal Register notice. However, Table Z-1 includes a column entitled "Skin Designation." Those substances for which the skin designation is noted with an "X" in the Skin Designation column are chemicals which can be absorbed across the skin. Employee skin exposure to these substances shall be prevented or reduced through the use of engineering controls, work practices, or appropriate personal protective equipment, such as gloves or coveralls. Where personal protective equipment (PPE) is required to prevent or reduce skin exposure and the employer has not provided or required the use of such PPE, a citation for violation of 29 CFR 1910.132 shall be issued.
5. Specific Substances
The substances regulated as inert or nuisance dusts were changed to Particulates Not Otherwise Regulated (PNOR) in the 1989 rulemaking to reflect OSHA's intention to cover all particulates, including organic dusts. Tables Z-1, Z-1-A and Z-3 give adequate notice of that clarification and indicate that organic particulates are covered. OSHA will continue to regulate organic particulates under the PEL for PNOR which references Table Z-3 under inert or nuisance dust. The June 30, 1993, FR notice (pp. 35339-40) indicates that the PNOR entry of Table Z-1 and the "Inert or Nuisance Dust" entry of Table Z-3 are the same (the duplication is only for purpose of clear notice to the public) and both clearly indicate that organic and inorganic particulates are covered. PNOR citations should refer to the "Inert or Nuisance Dust" entry and with the identical limits also being cited."Save" example: Employees were exposed to Particulates Not Otherwise Regulated listed in Table Z-1 which is also referenced in Table Z-3 under "Inert or Nuisance Dust" in excess of 5 mg/m(3) (respirable) and/or 15 mg/m(3) (total) as an 8-hour Time Weighted Average concentration.Wood dust
Wood dust will now be regulated as a PNOR, because the wood dust PEL has been vacated.
Carbon dioxide returns to the Table Z-1 limit of 5000 parts per million (ppm). Neither the 1989 PEL of 10,000 ppm nor the Short-Term Exposure Limit (STEL) of 30,000 ppm can now be enforced.
In workplaces where the employer has instituted a monitoring and compliance program to ensure employee exposures do not exceed a 30,000 ppm (STEL) then a de minimus notice may be issued when the 8-hour TWA is between 5,000 and 10,000 ppm. However, when the employer has instituted such a compliance and monitoring program for a 30,000 ppm (STEL) and the 8-hour TWA exceeds 10,000 ppm, a "serious" citation shall be issued.
6. Petition for Modification of Abatement (PMA)
PMA's that are in effect and were issued prior to March 23, 1993, must be amended to the Transitional Limits of the PELs if done before June 30, 1993 or to Table Z-1 if done from that date.
7. PEL Litigation Settlements
Fourteen settlement agreements were negotiated as the result of legal challenges to the 1989 Air Contaminants Standard. These agreements cannot be enforced with the exception of grain dust. The Court has granted a motion by the American Federation of Labor - Congress of Industrial Organizations (AFL-CIO), and the National Grain and Feed Association (NGFA) to allow the grain dust settlement agreement to remain in effect. The grain dust settlement provides for a PEL of 10 mg/m(3) and requires engineering controls based on a size dependent phase-in. Please refer to the Grain Dust Settlement Agreement for further information. The substances regulated under the 14 settlement agreements included perchloroethylene, beryllium, ethylene dichloride, styrene, acetone, nitroglycerin, ethylene glycol dinitrate, carbon monoxide, calcium oxide, calcium hydroxide, substilisins, mercury, iron oxide, ammonia, sulfur dioxide, nitrogen dioxide, hydrogen sulfide, phosphoric acid, fluorides, diethanolamine, carbon disulfide, and sodium chloride.
8. State Plan States Enforcement Action
Although the Federal Court's decision vacating the 1989 PELs does not directly affect the States' PEL standards as they were adopted under applicable State law, the authorizing legislation for some States requires that the State parallel OSHA standards-setting actions. Each State must make its own determination based on its legal authority and other issues. Twelve States (Alaska, California, Connecticut, Maryland, Michigan, Minnesota, New Mexico, Tennessee, Vermont, Virgin Islands, Virginia, Washington) have indicated their intent to continue to enforce the 1989 PELs at this time. Eleven States (Arizona, Indiana, Iowa, Kentucky, Nevada, New York, North Carolina [except for Wood Dust], Puerto Rico, South Carolina, Utah, Wyoming) are reverting to the transitional limits. Two States (Hawaii, and Oregon) are currently enforcing pre-1989 levels previously adopted as different State standards subsequent to the 1971 Federal standard.
A copy of this compliance guidance memorandum is being provided directly to the States. Regional Administrators should coordinate with the States on these issues and any other related issues.
9. Debt Collection
Penalties for citations of violations of the 1989 PELs issued prior to March 23 that have become final orders of the Commission, were based on a valid standard. The citations are valid and the penalties collected are non-refundable. Penalties not yet collected should be handled in the same way as any other uncollected debt. (See FOM, Chapter IV)
UNDER THE TABLE Z-1 LIMITS
City, State Zip Code
Dear Company Owner:
During a recent Occupational Safety and Health Administration (OSHA) compliance inspection on [date], OSHA documented employee exposures to [substance] that were between [amount] and [amount]. The exposures were documented from sampling, interviews and observation of your employees that performed [task]. Exposure to [substance] at these levels is associated with the following health effects:
OSHA also noted the insufficient/improper use of the [control methodology] while the employees performed the above task.
The U.S. Court of Appeals, Eleventh Circuit, vacated the 1989 Permissible Exposure Limits (PEL) listed in the "Final Rules" columns of Table Z-1-A of OSHA's Air Contaminants Standard, 29 CFR 1910.1000. Accordingly, the PEL for [substance] has reverted to the level listed under Table Z-1, and in Table Z-2 and Table Z-3 of the amended 29 CFR 1910.1000(58 FR 35338-351 June 30, 1993). OSHA continues to believe that controlling employee exposure to this limit is insufficiently protective. OSHA therefore recommends that employees' exposures be limited to the more protective level of either the National Institute of Occupational Safety and Health (NIOSH) Recommended Exposure Levels (REL) of [level] or the American Conference of Government Industrial Hygienist (ACGIH) Threshold Limit Values (TLV) of [level].
SAMPLE NOTIFICATION LETTER FOR SUBSTANCES NO LONGER REGULATED
City, State Zip Code
Dear Company Owner:
During a recent Occupational Safety and Health Administration (OSHA) compliance inspection on [date], OSHA documented employee exposures to [substance] that were between [amount] and [amount]. The exposures were documented from sampling surveys, interviews and observation of your employees that performed [task]. Exposure to [substance] at these levels is associated with the following health effects:
OSHA also noted the insufficient/improper use of the [control methodology] while the employees performed the above task.
The U.S. Court of Appeals, Eleventh Circuit, vacated the 1989 Permissible Exposure Limits (PEL) listed in the "Final Rules" columns of Table Z-1-A of OSHA's Air Contaminants Standard, 29 CFR 1910.1000. Accordingly, no OSHA PEL exists for [substance]. However, in OSHA's opinion a potentially serious health hazard exists if employee exposures are not adequately controlled. OSHA therefore recommends that your employees exposures should be controlled to the more protective level of either the National Institute of Occupational Safety and Health (NIOSH) Recommended Exposure Levels (REL) of [level] or the American Conference of Government Industrial Hygienist (ACGIH) Threshold Limit Values (TLV) of [level].