Hearing Stirs Heated Debate Over Non-Consensus Standards

A recent public hearing in Washington pitted supporters of non-consensus standards versus those who argue that incorporating such standards into safety regulations flies in the face of open government.

The April 27 hearing, held by the House Workforce Protections Subcommittee, focused on concerns that regulations written without wide participation from the public particularly those issued by the Cincinnati-based American Conference of Governmental Industrial Hygienists circumvent Constitutional checks and balances. Supporters of non-consensus standards counter that such standards are needed because OSHA has dropped the ball when it comes to promulgating new workplace safety regulations.

Rep. Norwood 'Declares War'

Four years ago, the subcommittee, chaired by Rep. Charlie Norwood, R-Ga., held a similar hearing about an alleged attempt by the Department of Labor to incorporate standards set by outside standards-setting organizations into the hazard communication rule.

According to a member of a panel at the April 27 hearing, that practice continues.

"Things have changed indeed … they have gotten worse," said Henry Chajet, an attorney with Patton Boggs who represent clients who oppose the use of non-consensus standards. "By using and supporting non-consensus organizations (NCOs) for standard setting, the Department of Labor, the Environmental Protection Agency, the Department of Energy and the Department of Health and Human Services are abrogating their duties through an insidious delegation of government authority that denies our citizens their Constitutional rights."

Statements made by Chajet and Norwood indicate that they are on the same page. Norwood, on his Web site, announced that he is declaring "war on federal bureaucrats' attempts to write U.S. law."

"The taxpayers pay [OSHA] during the daytime to work at OSHA, then at nighttime they go over to ACGIH and write these standards, then take them back to their OSHA desk and declare 'it's a great standard' and none of us get any input at all," Norwood said. "That's against the OSH Act."

Chajet Sees a Clear Difference

Chajet served as one of the plaintiffs' attorneys in a case the International Brominated Solvents Association and other plaintiffs filed against ACGIH in an attempt to block that organization from publishing workplace exposure levels for four chemicals, including 1-bromopropane (nPB n-propylbromide), copper, silica and diesel particulate matter. The industry groups alleged that ACGIH's threshold limit values (TLVs) for chemical substances and physical agents are illegally adopted, illegally enforced by the federal government and economically oppressive to the businesses they represent. In June 2005, U.S. District Judge Duross Fitzpatrick dismissed three of the four counts against ACGIH.

Chajet explained what he perceives as a clear difference in standards-setting approaches between consensus and NCOs.

"In contrast to NCOs, consensus organizations adopt standards according to strict procedures that are transparent, in open meetings, with a generous input and appeal process for all interested parties," asserted Chajet, emphasizing that, for example, ACGIH has not complied with the above procedures. "The Occupational Safety and Health Act and other federal laws encourage agencies to use consensus standards, but unfortunately do not expressly prohibit their use of NCOs."

In a statement released in June 2005, ACGIH said that members of the TLV subcommittees are not publicly identified "in order to discourage aggressive attempts by interested parties to influence individual committee members through direct contacts at their homes or places of employment."

Labor: OSHA Should Be Able to Adopt TLVs

Frank Mirer from the United Auto Workers Union countered that OSHA should be authorized by Congress to adopt the current TLV list developed by ACGIH as current TLVs are not as protective as they should be.

"Given OSHA's lack of action on setting new standards, the TLVs are a reasonable starting point in getting protection and future rulemaking," he said. "Congress should direct this action, not prevent this action."

TLVs are guidelines not standards prepared by the ACGIH to assist industrial hygienists in making decisions regarding safe levels of exposure to various hazards found in the workplace. A TLV reflects the level of exposure that the typical worker can experience without an unreasonable risk of disease or injury, but are not quantitative estimates of risk at different exposure levels or by different routes of exposure.

Industry Reps Voice Concern

Industry representatives impacted by non-consensus standards also were invited to testify. James Ruddell from the National Stone, Sand and Gravel Association pointed to the need and requirement for greater openness in the federal rulemaking process.

"Today, the overall federal regulatory process is required to be more open in the sunshine, so to speak in order to allow for the input of all parties and consideration of data that is of high quality and scientifically valid in establishing a regulatory limit that everyone must meet," said Ruddell.

Nearly half of all states have adopted their own safety and health programs in lieu of federal OSHA standards. These states must provide safety and health protection equal to or greater than what is required by OSHA.

As a result, many states indirectly rely upon non-consensus standards to match or exceed OSHA regulations. Elizabeth Marcucci, representing the American Bakers Association, noted this during her remarks to the subcommittee.

"These states need to have confidence in the procedures and end results of the consensus standard-setting organizations upon which they rely for guidance in developing their own standards and enforcement proceedings," said Marcucci.

Norwood said that the Labor Department is required by law to provide a public notice in the Federal Register and to solicit comments as part of the rulemaking process when promulgating a standard. His goal, he said, is to ensure transparency in the rulemaking process. "The employees, their representatives and the regulated industries have a right to provide input in the regulatory process."

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