Why being “OHSA legal” isn’t enough

Go beyond compliance to better protect your employees and business

Source: EHS Today / Michael Pardus | Aug 30, 2018

When it comes to chemical exposure protection for employees and downstream users, companies must be compliant with OSHA regulations. In 1970, OSHA created permissible exposure limits (PELs) that remain the rule of law to this day, though knowledge regarding exposure and toxicity has continued to evolve since then.

Disregarding that knowledge means legal compliance is not the same as protecting your company, employees and downstream users. Staying “OSHA legal” is no longer enough. Going beyond compliance is how you create a safer standard of care and protect your bottom line. But how exactly do you go beyond compliance? For starters, you look beyond OSHA regulations.

EPA & OSHA: overlapping jurisdictions?

While EPA and OSHA have different purposes, their jurisdictions can seem to overlap when it comes to workplace exposure. Even though EPA has a broader reach, their guidelines do not nullify OSHA regulations when it comes to workplace compliance. But the lines can seem blurry and using only OSHA regulations is not enough.

EPA’s Toxic Substances Control Act (TSCA) includes rules that are wide-reaching and go far beyond workplace chemical exposure. TSCA has occupational exposure limits (OELs) that are more current — and “stricter” — than OSHA’s PELs. Additionally, there are now new amendments in the mix as a result of EPA’s Principles for TSCA Reform, which aim to “reauthorize and significantly strengthen” the effectiveness of TSCA. These developments point to potential regulatory shifts.

Could EPA consultation lead to OSHA updates?

OSHA itself recognizes that its PELs, many of which are based on Threshold Limit Values (TLVs) from 1968 or earlier, are woefully outdated. Until they update their PELs, OSHA continues to provide additional updated chemical information to employers who want to adopt more protective and preemptive measures voluntarily.

In efforts to help create more up-to-date regulations, EPA is consulting with OSHA. Additionally, OSHA is partnering with the American Chemistry Council (ACC) to look for more ways to ensure workplace safety. At ACC’s Global Chemical Regulations Conference (GlobalChem) this year, OSHA’s Directorate of Standards and Guidance Director William Perry touched on the OSHA/EPA consultation. Perry noted that EPA has consulted with OSHA about some chemical reviews, but he said he is “not sure how active” the consultation will be over the long run.

The result of the consultation with EPA may be that OSHA adopts those stricter TSCA rules while still maintaining their workplace authority. Your best bet is to be proactive and keep your eyes glued to the road ahead. Adopt TSCA’s recommendations now to provide the best standard of care because it’s better for enterprise-wide risk management.

Be proactive with compliance

Forward-thinking companies know that merely complying with OSHA’s 40-year-old standards puts their investments — including worker and downstream user safety — at risk. When stricter rules exist, legal compliance tends to flow toward them, so it’s important to be proactive.

EPA’s OELs under TSCA create a new benchmark to which safety compliance stakeholders may want to adhere. Whether or not EPA’s OELs become the OSHA rule of law in the future, it’s wise to use them as a guide for chemical substances handled in the workplace.

Proactive steps: monitor, assess and then plan

How do you ensure you’re taking the right proactive steps to go beyond compliance? Start with constantly monitoring compliance trends. Create processes that help to ensure you’re alerted the moment there’s a whiff of a potential global chemical manufacturing trend. Technology can help, though only in concert with boots-on-the-ground monitoring efforts.

With constant monitoring comes continuous assessment — it’s the only path to productive planning and strategizing. If you monitor, assess and then plan, you’re more likely to avoid stopped production due to a chemical that “suddenly” can’t be used any longer. More importantly, you can be on top of an employee chemical exposure issue before it becomes a serious problem.

Improve your standard of care with voluntary guidelines

EPA and OSHA are not the only organizations creating chemical exposure limits. There are other sets of voluntary guidelines that many EHS professionals follow. While these are not legally enforceable rules, many businesses use them because they can help to ensure a standard of care that goes way beyond compliance.

A popular set of guidelines comes from the American Conference of Governmental Industrial Hygienists (ACGIH), which updates its TLVs every year. ACGIH is an 80-year-old scientific organization devoted to advancing occupational and environmental health. Many companies use their TLVs as a tool to continually improve their standard of care, which in turn protects a company and boosts its bottom line.

There’s also the National Institute of Occupational Safety & Health (NIOSH). NIOSH, established by the Occupational Safety and Health Act of 1970, collects new knowledge with the aim of developing best practices. Like ACGIH, NIOSH guidelines are entirely voluntary.

Unlike ACGIH, NIOSH depends on government funding, which can lag, and therefore hinder their recommended Exposure Limit (REL) updates. However, NIOSH still provides EHS professionals with guidance for a higher level of worker and downstream user protection than OSHA PELs alone.

These two organizations have well-recognized criteria for their guidelines, and many manufacturing organizations use their recommendations to go beyond compliance.

Developing appropriate OELs

Regardless of official regulations, manufacturing organizations need to establish their own OELs. But in today’s world, it’s easy to lose sight of reasonable OEL expectations for your circumstances. Companies must navigate non-legally binding TSCA guidelines along with mandatory OSHA regulations, plus recommendations from ACGIH and NIOSH. There’s no clear roadmap for the territory beyond compliance.

While OSHA’s PELs are the only official legal standards, it’s still crucial to consider the other more conservative recommendations. Do what’s right for your business. Keep in mind that some recommendations from industrial hygienists don’t consider systems thinking and may not work from a business continuity and risk management standpoint. Understanding your organization’s risk tolerance and risk competence is paramount when developing OELs.

For example, ACGIH could make a recommendation that would add two more steps to your production line, which would slow down manufacturing significantly—eating away at bottom-line dollars. The ACGIH could have excellent reasons for their recommendation, but how would it fit into your organization’s risk management plan? Is it worth it to slow down production and take a hit to the bottom line, especially if it’s not OSHA-mandated?

When creating OELs for your company, there are a few things to consider:

• Your company’s risk tolerance (and risk competence): all OELs should revolve around overall risk management policies.

• Worker and downstream user population size: are you at risk of exposing 100 workers or 100,000?

• New OELs EPA is currently developing under TSCA; at the very least, stay in the loop with where the EPA is heading.

• New use restrictions for existing chemicals; make sure old processes reflect new ideas.

• Analogous EPA OELs that apply to new compounds; if you want to use a new compound that is not yet covered by a use rule, there may be OEL data for an analogous substance that’s appropriate.

While federal agencies decide new occupational exposure regulations, it’s crucial to stay informed about all developing rules and trends to remain compliant. It’s also vital to take proactive steps to look beyond EPA and OSHA for guidelines that will better protect your organization.

Most importantly, stay vigilant about reviewing and developing your own OELs. Going beyond compliance will improve your standard of care and keep you ahead of the workplace safety curve. Big businesses now require more transparency from their suppliers, and that’s only going to increase in future years. You don’t want to play catch-up.

Michael Pardus is a technical expert at Haley & Aldrich Inc., a consulting company specializing in underground engineering, environmental science and management consulting. He has 30 years of experience in industrial operations and environmental consulting, enterprise resilience and governance, EHS compliance, and regulatory affairs.

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