OSHA memo: Area offices must use four-part test when citing respiratory hazards without PELs

Washington — OSHA area offices must apply a four-part test before issuing General Duty Clause citations for respiratory hazards that do not have a permissible exposure limit, the agency states in a memorandum sent to regional administrators.

In the memo, issued Nov. 2, Kim Stille, acting director of OSHA’s Directorate of Enforcement Programs, writes that area offices cannot base a General Duty Clause citation on only a “measured exposure” in excess of an occupational exposure limit or a documented exposure to a “recognized carcinogen.” Instead, they must use the following tests in those situations:

1. The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed.
2. The hazard was recognized.
3. The hazard was causing or was likely to cause death or physical harm.
4. A feasible and useful method to correct the hazard was available.

“Unless the case file evidence proves all four of the above elements, the area office should issue a hazard alert letter,” Stille states in the memo.

Stille also provides guidance for each piece of the four-part test, and includes a sample hazard alert letter. She notes that the General Duty Clause is “occasionally used to cite respiratory hazards from exposure to an air contaminant that is not covered by an OSHA permissible exposure limit.”