Updating the PELs - take two
The plan, presented to OSHA last November, would establish a tripartite panel of occupational health and safety advisors who would collect and analyze scientific and economic data on substances selected by an OSHA "priority planning process." Two subcommittees would make recommendations to a PEL Advisory Committee which would then propose consensus-based exposure limits to the agency: ·
- A scientific advisory work group would compile, assess and characterize scientific information and data on substances chosen through OSHA's priority planning process for rulemaking; ·
- A feasibility analysis work group would determine the economic and technological feasibility associated with setting PELs for the candidate substances.
The advisory committee would revisit each substance every three-to-five years, to keep limits current with scientific data.
By involving stakeholders early on in the standard-setting process, OSHA will gain access to more data, expedite PEL development, and avert court battles, the CMA suggests. Plus, a standing-committee could keep the rules up-to-date, CMA says -at least relative to what's in place now: a set of rules based on 30 year-old data.
To people familiar with OSHA standard setting methods, the CMA idea sounds a lot like negotiated rulemaking, a process that failed at setting a benzene standard and was lengthy as ever for setting a methelene dianaline standard. Others wonder what would be the difference between committee-developed OSHA PELs and the American Conference of Governmental Industrial Hygienists threshold limit values, which have been criticized for being industry-driven. But ORC's Darrell Mattheis says those characterizations are off-the-mark: "We're talking about a whole new way of doing business," he says.
Reg reinventionIndeed, the industry groups seem to be speaking the language of OSHA reinvention. Their proposal for tripartite PEL rulemaking "is in line with what Joe Dear wanted to do with reinvention," says ARCO Chemical Co., Product Safety and Health Manager Terry DeLaney, chair of the CMA committee that drafted the plan. "Dear told us that he aspires to have OSHA act more like the compass on a ship than its rower." This plan puts OSHA in a managerial role, incorporates stakeholders up front, and encourages the sort of industry-labor-government cooperation that's being talked about in Washington, she says.
What's more, the tripartite process could become a blueprint for all types of standard setting. "Why not?" DeLaney asks. "I think you could make it fit with a little effort."
But that's just what worries union folks. AFL-CIO industrial hygiene labor representative Rex Tingle compares the CMA to a fox trying to get into the henhouse. And if big business gets that close to the standard setting process, feathers will fly. "Standards will all become industry-driven," he predicts.
With a staff of four, Tingle says it would be difficult for his office to participate in data analysis and standards development. "Who's going to spend the most money working on standards? People looking at profit margins, and people with a lot [of money] at stake," Tingle says.
Labor leaders might have friends at OSHA like Health Standards Director Adam Finkel and Policy Director John Moran, but that's no comfort to Tingle: "It could all change in November." Not to worry, says DeLaney : If OSHA could get this process up and running, it would be resistant to political changes. "It's unlikely that a new administration would be motivated to change a process where a successful tripartite relationship was already established," she says.
Nevertheless, industry recognizes what a tough sell labor will be for their plan. But, says ORC's Frank White, "CMA wouldn't have proposed this if they thought they couldn't get labor included. It's intended that all participants will have an equal voice." And White acknowledges the legitimacy of labor's concerns that only big business could afford to send people to Washington to sit on PEL advisory committees. "There would have to be some way to assure that funding is made available to help equal participation. If that can't be accomplished then this wouldn't work."
OSHA must play mother henTo be sure, labor isn't opposed to rulemaking by committee as a concept. As long as OSHA has the last word, that is. United Steelworkers Director of Health, Safety and Environment Mike Wright, says the CMA plan actually resembles one his union once suggested. "The idea of all the sides working together is a good one." But whatever process is followed, it is critical that OSHA controls rulemaking, he says.
Control is, indeed, one of the trouble spots OSHA's Adam Finkel sees in the CMA's plan.
"Having a long process of getting people involved in the methodology and then having them help us come up with numbers is a potential recipe for a lot of delay," says Finkel.
That said, the CMA's goal to revisit limits every three-to-five years doesn't sound realistic to Finkel. "The reality is, we have so many PELs that are thirty years old, that I haven't thought about trying to revisit [the 20 OSHA plans to set this year] in another couple years," he says.
Finkel's not flat out rejecting the CMA plan. Instead, he says he would like stakeholders involved in areas where their input would be fruitful, like setting up a framework for collecting and analyzing data. But making judgments about particular substances should be left up to the agency, he says.
Trouble is, OSHA's in no position to turn down free help these days. Finkel points out that OSHA has 40 people to work on all its health standards. (For comparison sake, EPA has about a dozen people for each substance it regulates, according to Finkel.) And budget cuts will hinder the agency's ability to contract out work, he says. John Pendergrass, who was running OSHA the last time PELs were being set, estimates rulemaking can cost as much as $5 million for one chemical.
Meanwhile, any data collection, analysis, and standards setting done by a tripartite PEL advisory committee like the CMA proposes would be paid for, mostly, in sweat equity.
For now, OSHA plans to move forward with regular rulemaking for the first group of substances on its list, with its sights set on getting 20 new PELs into the Federal Register in the late summertime. The industry groups say they would like to persuade Finkel to wait and use their approach. And at the least they'll continue selling the plan, and try bringing labor aboard, for future substances.
Finkel says it's possible the agency will start a second round of rulemaking soon, perhaps on a group of substances suitable for a trial run of a consensus-based process.