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Vol. 2007-04-b April, 2007

OSHA, Hazardous Chemicals in the Workplace

The Occupational Safety and Health Act of 1970 ("OSHA") delegated broad authority to the Secretary of Labor (Secretary) to promulgate standards to ensure safe and healthful working conditions for the Nation's workers. . The Act defines an "occupational safety and health standard" as a standard that is "reasonably necessary or appropriate to provide safe or healthful employment."

Where toxic materials or harmful physical agents are concerned, a standard must also comply with limits set by the Secretary to.adequately assure, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity.

When the toxic material or harmful physical agent to be regulated is a carcinogen, the Secretary has taken the position that no safe exposure level can be determined, and that 6(b)(5) requires an exposure limit at the lowest technologically feasible level that will not impair the viability of the industries regulated.

After having determined that there was a causal connection between benzene (a toxic substance used in manufacturing such products as motor fuels, solvents, detergents, and pesticides) and leukemia (a cancer of the white blood cells), the Secretary promulgated a standard reducing the permissible exposure limit on airborne concentrations of benzene from the consensus standard of 10 parts benzene per million parts of air (10 ppm) to 1 ppm, and prohibiting dermal contact with solutions containing benzene. On preenforcement review, the Court of Appeals held the standard invalid because it was based on findings unsupported by the administrative record. The court concluded that OSHA had exceeded its standard-setting authority because it had not been shown that the 1 ppm exposure limit was "reasonably necessary or appropriate to provide safe and healthful employment" as
required by 3(8), and that [448 U.S. 608] 6(b)(5) did not give OSHA the unbridled discretion to adopt standards designed to create absolutely risk-free workplaces, regardless of cost.

Held: The judgment was affirmed by the United States Supreme Court. See: Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607, decided July 2, 1980.

N.B.: OSHA's Hazardous Chemicals Standards still apply to workplace exposure of all persons - whether employees, agents, occupants, vendors, business invitees, and even trespassers. Consult environmental legal counsel where there is any question as to how to provide proper notice and protection, to reduce exposure and potential civil and criminal liability.

Editor's Note: A future article will address "HCS - OSHA's HAZARDOUS CHEMICALS STANDARDS".


Those are my principles; if you don't like them, I have others.

Groucho Marx, Comedian

AUTHOR / EDITOR: J. NORMAN STARK is an Attorney-at-Law, a Registered Architect, (AIA, NCARB) Registered Landscape Architect, Interior Designer, Planner and Senior Appraiser (ASA), admitted to practice law before the Bar of Ohio, the US District Courts, Ohio and Illinois (Central Dist.), the US Court of Appeals, and the United States Supreme Court. He is a Mediator, Arbitrator and Litigator with experience in Business, Construction Law, and Public Works, and with additional experience in Real Estate, Construction Attorney (Legal Project and Crisis Management), and as an Expert Witness (Forensic Architect). His office is in Cleveland, Ohio.

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