PPE Rule - An Avenue for Chemical Protection in the Absense of an OSHA PEL

http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=FEDERAL_REGISTER&p_id=21370
Clarification of Employer Duty To Provide Personal Protective Equipment and Train Each Employee - 73:75568-75589

"In this rulemaking, OSHA is amending its standards to add language clarifying that the personal protective equipment (PPE) and training requirements impose a compliance duty to each and every employee covered by the standards and that noncompliance may expose the employer to liability on a per-employee basis."
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BrooklynDodger(s) comment: Remarkably, the Bush-Chao OSHA has announced a policy of per instance violations of the PPE standard. This opens a door to forcing protections against chemicals for which there are no PEL's or even in compliance with PEL's.

Per instance citations are a logical escape from the "one size fits all" critique of OSHA enforcement. Large employers which create hazards expose many more workers to those hazards than small employers. The large employers have more knowledge and more resources to abate these violations, it makes no sense that OSHA be permitted to cite only one instance. Per instance citations should not be limited to egregious violations.

Now to PPE. The recent, but not so new, PPE standard requires a formal, documented risk assessment of each job assignment or exposure.

Protective equipment, including ... respiratory devices,... shall be provided, ... wherever it is necessary by reason of hazards of processes or environment, chemical hazards...encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

1910.132(d)(2) The employer shall verify that the required workplace hazard assessment has been performed through a written certification that identifies the workplace evaluated; the person certifying that the evaluation has been performed; the date(s) of the hazard assessment; and, which identifies the document as a certification of hazard assessment.

OSHA has for years had the authority to cite under the General Duty Clause where an exposure complies with a PEL, but the employer has knowledge that the PEL allows serious physical harm. (UAW v. General Dynamics Land Systems Division, http://www.altlaw.org/v1/cases/420579). OSHA has rarely cited this case and most people and inspectors believe the opposite ("Rarely" is a weasel word for not knowing if there is any instances where the case has been cited. The Dodger(s) know(s) of a case where an OSHRC ALJ opinion says the exact opposite of the DC Court of Appeals.)

The assessment would require attention to exposures with no PEL or in compliance with PEL. So, here's a scenario. A worker suffers significant and disabling pulmonary disease from MWF exposure or diacetyl. Both exposures are known in the industry to cause such serious physical harm from exposures within the PEL (for MWF) or where there is no PEL. The inspector checks the PPE risk assessment. Hazard ignored? violation. Employees not provided appropriate PPE? Violation for each. The multiple violations would generate penalties sufficient to motivate abatement.