At a recent Congressional hearing, two respected voices from the safety and health professional community offered ideas on how to overcome the legal and technical hurdles that have stopped OSHA's attempts to update hundreds of permissible exposure limits for toxic substances.

Frank White, vice president of Organization Resources Counselors, safety and health consultants to more than 100 large corporations, told lawmakers:

"It is unlikely, at least in the near term, that the Department of Labor will give this issue the priority attention that it deserves or will devote sufficient resources to an update effort. We have also concluded that it may be possible to craft limited legislation to provide an appropriate structure for an initial update."

Critical points, according to White, include:

  • "PEL legislation must minimize the possibility of 'opening up' the Occupational Safety and Health Act of 1970 for amendment. Creating 'stand-alone' legislation focused solely on the updating of PELs is the 'cleanest' way to assure this. The recent needlestick legislation is a useful model in this regard."

  • "A process for updating PELs must be open, transparent and inclusive of all affected interests."

  • "An updating process must encourage the submission of, and must evaluate, the best available data and information."

  • "The PEL update process should be consensus driven. The establishment of an advisory committee under the Federal Advisory Committee Act, with clear definitions of what constitutes consensus, is a well-understood, formal mechanism for achieving this objective."

  • "The legal standards for determining whether a proposed PEL is scientifically supported and capable of being achieved by affected industry sectors must be less stringent than those in the Act¿For the limited purposes of updating the PELs under this special legislative effort, Congress and all of the affected interests must be willing to reduce the evidentiary burden of establishing the validity of the new PELs."

  • "An updating process must strike a balance between the need for sound scientific, technological and economic determinations and the need to expedite and simplify decision-making."

  • "The updating process should be capable of screening out potential limits where the science is weak, inconsistent or otherwise controversial and where the evidence does not clearly demonstrate that affected industries can readily achieve the limits through the use of currently available technology and practices."

  • "Focus the effort of the update process on those contaminants where the supporting evidence is the strongest, most consistent and least controversial¿The PEL update process should be limited to an 'up' or 'down' recommendation for action on whatever the proposed PEL under consideration is - the process should not attempt to modify the candidate limit.

  • "The potential burdens on small business must be given special attention."

  • "Once a PEL is recommended for issuance, there should be opportunity for further limited public input and, once issued in final form, a PEL should be subject to judicial review if challenged by adversely affected parties that have participated in the process¿ a final round of public input and ultimately judicial review should be available."

    Margaret M. Seminario, director, Department of Occupational Safety and Health for the AFL-CIO, made these points:

  • Existing OSHA permissible exposure limits are out of date and fail to provide adequate protection to workers.

  • A new approach is needed to provide for the updating of OSHA PELs. The approach should provide for updating of limits on a large number of chemicals through an expedited process.

  • To accomplish this, the burdens placed on OSHA in rulemaking must be reduced. Legislation is needed to authorize and support a new approach.

  • The approach should be one that works towards consensus, that provides for meaningful input and involvement of interested parties and maintains their right to seek legal review.

  • The approach should recognize that the establishment of comprehensive 6(b)(5) standards remains important and for certain (specific) chemicals is more appropriate. OSHA should be urged to move forward to develop comprehensive 6(b)(5) standards on major hazards including hexavalent chromium, beryllium, silica and metal working fluids.

    The American Industrial Hygiene Association, with input from experts like White and Seminario, has crafted draft language for a model bill on updating PELs and has floated it on Capitol Hill. Formal legislation might be introduced in 2003.