In the June issue of COLUMNS-Asbestos, Harris Martin published Mark Zellmer’s article entitled “OSHA: Myths and Misconceptions.” Zellmer recently presented the findings and conclusions of his article at the Fall 2012 Midwest Harris Martin asbestos seminar.
Zellmer addresses why certain statements either by or about OSHA on the topic of asbestos are at least misleading. For example, OSHA’s linear equations for the calculation of risk of disease from asbestos exposure are not reliable indicators of the amount of exposure necessary for a court to find that asbestos caused disease. OSHA is not required to make judgments with reasonable medical certainty and is required to provide a safety margin to assure that exposures to workers will not place them at risk of disease.
Further discussion in the article covers a number of other topics. Although OSHA itself in the 1990s seemed to suggest that the permissible exposure limits (“PELs”) promulgated in the early and mid-1970s were intended only to protect against asbestosis, in fact, when OSHA first regulated asbestos it knew about the risk of cancer and, in compliance with it legislative mandate, set exposure limits intended to protect against that risk. OSHA provides that employers under certain circumstances may make judgments about the potential for exposure and thereby decide to dispense with precautions such as negative pressure enclosures or air monitoring. OSHA provides little or no support for the proposition that removal or installation of gaskets and packing or even fabrication of gaskets violated its PEL of 2 f/cc. Finally companies that discarded early air monitoring records for asbestos did not violate OSHA regulations as such regulations originally provided for a three year and later a twenty year retention period and only more recently have provided a thirty year retention period.