Regulatory Mischief and the Meddlings of a Select Group
Birds fly, dogs bark, OSHA regulates. And in today's environment, the Occupational Safety and Health Administration (OSHA) performs like the Energizer Bunny, relentless in its energy and determination to regulate ? and its batteries are seemingly recharged with every citation issued.
Unfortunately, in its zest to govern occupational hazards, the agency has often overlooked a few key provisions of an important law ? the Administrative Procedures Act ? that sets parameters for promulgating standards based on the principles of due process required by the U.S. Constitution. As a result of OSHA's "science be damned" attitude, it has been repeatedly sued by unions and corporations and, in most instances, rebuffed by the courts for its "ready, fire, aim" regulatory proclivities. The agency has a pattern of issuing notices of proposed rulemaking and seeks justification for the rule as an afterthought. This is a disastrous way to govern.
The first example that comes to mind: silica. In late 2003, OSHA issued a draft proposed standard governing workplace exposures to crystalline silica, a small business review panel was convened, and participants ? including the Small Business Administration's Office of Advocacy ? told the agency in no uncertain terms that it had to reassess the need for the standard, its feasibility and its economic impact. (At the time of this writing, OSHA is still working to complete its risk assessment for silica.)
Concerned about the potential harm of this proposed standard on the masonry industry, MCAA representatives met with the head of OSHA to highlight provisions we viewed as unworkable. We must have made some pretty convincing arguments because OSHA agreed to work with us ? that is, if we did a bit of its research for it. In other words, go out and collect the exposure testing data necessary to pinpoint certain tasks for which regulatory controls might be essential and demonstrate their success rate. Because as an industry we believe strongly in protecting our workers, MCAA agreed to generate data and offer recommendations to the Department of Labor that we knew would be feasible and effective.
This sounds fairly simple, but our efforts and those of OSHA are complicated by the work of outside groups such as the American Conference of Governmental Industrial Hygienists (ACGIH). Where OSHA establishes permissible exposure limits (PELs) for hazardous substances, the ACGIH sets threshold limit values (TLVs). Unfortunately, PELs and TLVs are viewed by many as essentially the same thing, with the main difference being that ACGIH tends to set these stringent limits without any consideration of technical, economic or analytical evidence.
Also, when it comes to setting new TLVs, ACGIH will allow the outside world to provide comments, but it has essentially made up its mind to embrace the concept by the time the proposed change is made public, and it is under no obligation to consider or respond to those public comments. As Pat Cleary from the National Association of Manufacturers (NAM) said on his manufacturers' weblog (www.blog.nam.org), "This is akin to self-regulating regulators run amok, romping drunk in a regulatory frenzy, dancing naked around the wooden totem of the god of regulation." Anyway, you get the picture.
ACGIH is not accountable to anyone, and yet OSHA incorporates its TLVs into its Hazard Communication Standard (HCS) on a regular basis ? all in violation of the due process clause of the U.S. Constitution, the Administrative Procedures Act, the Federal Register Act, the Occupational Safety and Health Act, the Regulatory Flexibility Act, the Federal Advisory Committee Act, the Data Quality Act and the Paperwork Reduction Act.
And guess what? The current chairman of the ACGIH is none other than a Regional Administrator of OSHA. ACGIH presumably pays this OSHA official's expenses on weekends to help it put some spit and polish on the recommended TLV; he then switches hats ? back to his day job ? to anxiously await the arrival by mail of the new TLV he's endorsed so he can share it with OSHA. There's certainly something wrong with this picture!
The latest pronouncement from ACGIH is its intention to lower the TLV for Portland cement from 10 milligrams per cubic meter to one milligram per cubic meter and classify it as a possible human carcinogen. So, after all the concerns raised about the inclusion of Portland cement in the scope of the hexavalent chromium rule due to dermal exposures, now we have to contend with the "science" ACGIH is using to claim inhalation exposures to Portland cement have resulted in reduced lung capacity for employees in the manufacturing sector.
If ACGIH is successful in moving forward with this new TLV ? and MCAA will do everything it can to intercept it ? manufacturers will have to put the TLV on their Material Safety Data Sheet (MSDS) and, according to OSHA, end users will have to "tell employees that a recognized authority, in this case ACGIH, recommends a particular exposure limit based on a health hazard determination." Then I can just imagine OSHA being pressured to issue a separate PEL, along with all the appropriate bells and whistles, for Portland cement. Etc, etc, etc.
I don't think the Founding Fathers would have sanctioned such an overreaching and unjustifiable government regulatory effort.
About the Author
Marian J. Marshall was the Director of Government Affairs for the Mason Contractors Association of America.