Solving the PELs Puzzle

May 1, 2000
Plagued by the hassles of self-regulating hazardous substances, many business people are asking: Can OSHA help?

In the upside-down world of air contaminants, industry groups have for years been prodding the Occupational Safety and Health Administration (OSHA) to regulate more substances and to do it faster. While OSHA and its friends in organized labor agree that the current list of nearly 500 permissible exposure limits (PELs) is badly out of date, OSHA and the unions, because of competing priorities, have so far been slow to respond to the unusual pressure from industry.

The current PELs were established in 1971 when OSHA was created and are based on research dating to the 1950s and 1960s. Over the years, various voluntary exposure standards were updated to reflect new toxicological and epidemiological data, but the country's legally binding standards remained frozen in the past.

In 1989, after former Assistant Secretary John Pendergrass made it a priority, OSHA published a final rule for general industry that revised 212 existing exposure limits and established 164 new ones. According to OSHA estimates, its 1989 rule would have provided additional protection for more than 21 million employees, eliminated 55,000 occupational illnesses and 683 deaths each year, and carried an annual price tag of $150 per employee and $6,000 per affected plant.

Then came the first crazy twist in the PELs story: It was the AFL-CIO that beat OSHA in a court battle over this attempt to update all air contaminant regulations with one swing of the bat. In a classic example of how the best is sometimes the enemy of the good, the union sued OSHA to establish even stricter PELs.

The result of the lawsuit was a 1992 decision by the 11th Circuit Court that threw out OSHA's entire effort at regulatory legerdemain. The court ruled OSHA had not demonstrated that the new PELs were individually necessary or feasible.

As a result of the union's victory, the agency was forced to return to the original 1971 limits. OSHA and the American work force have been stuck there ever since.

Whether the AFL-CIO's triumph has had dire health consequences for American workers is difficult to determine. Marthe Kent, OSHA's acting director of the directorate of health standards programs, was asked in a recent interview if there were any good numbers on how many workers are being harmed by outdated PELs. "I don't know of any data like that," Kent replied. "The illness data here is very hard [to gather]."

The Cost of Self-regulation

The cost for business of what amounts to self-regulation is, if anything, even more difficult to calculate. Conversations with safety and health managers revealed why many in industry favor a more robust regulatory effort by OSHA.

Of course, worker exposure is a part of the equation, not only because of workers' compensation costs, but also because of lost productivity, days away from work and the genuine concern most employers have for their employees' health.

Darrell Mattheis of Organization Resources Counselors (ORC), whose clients include many large chemical companies, has been actively involved in the effort to expedite the regulatory process. While he said there is no unanimity of opinion in industry about the need for more regulation, big companies generally are more comfortable when there is an agreed-upon exposure limit, especially if industry can have some say in setting the standards.

"When there isn't anything," Mattheis explained, "some advocate could say, 'Wow, we could measure down to one part per trillion -- why aren't you down there?'"

Many in industry believe that if you apply sound science to the setting of a standard by a government agency with open hearings, the result will be an exposure limit with the validity companies can defend legally and in the court of public opinion. By reducing the adversarial nature of the PELs updating process, ORC's proposal is intended to help OSHA move more quickly to update the limits, thereby reducing industry's need to rely on the welter of unofficial occupational exposure limits (OELs).

Carolyn Phillips, CIH, CSP, a health and safety consultant and formerly industrial hygiene adviser at Shell Oil for 25 years, said industry favored updated PELs because of concerns about legal liability and the need to protect employees and customers from hazardous substances.

Because the existing PELs are out of date, business has to work with a bewildering hodgepodge of different occupational exposure levels to fill in the gaps. Next to OSHA's PELs, the most important guidelines used by business to protect workers are the Threshold Limit Values (TLVs) produced each year by the American Conference of Governmental Industrial Hygienists. Then there are the workplace environmental exposure levels, or WEELs, of the American Industrial Hygiene Association and the National Institute for Occupational Safety and Health's recommended exposure limits, or RELs, not to mention industry-developed OELs.

"It's confusing," Phillips said. "You know you could have 15 different groups of scientists evaluate a chemical, and they could all come to slightly different conclusions. It's not a hard science."

Phillips explained that sometimes a chemical company could buy the same chemical from three suppliers within a short time because of price fluctuations. Each company might have a different exposure limit, causing confusion on the material safety data sheet (MSDS).

"Your employees have to have [an MSDS]," she said. "Then they see three different levels on those sheets, and they're going to be sitting there saying, 'What is this?' " Time-consuming explanations to workers and management are the result. In addition, some companies might be tempted to buy chemicals from a supplier with less stringent exposure levels to save money on hazard controls.

The most serious problem for business, according to a number of experts, is addressing the thousands of chemicals for which there are no limits. "Some will say there are 20,000, others 30,000," Mattheis said. "Nobody knows how many substances need PELs. All we know is there are a lot."

Selling Safety to Management

Even in companies with internal limits that are more rigorous than OSHA's standards, some safety and health managers said there is an additional reason why they favor updating OSHA's PELs.

"At times, it is more difficult than it needs to be to convince upper management to spend large amounts of money for engineering controls to meet a consensus standard vs. a regulatory standard," said David Harms, a senior industrial hygienist for a large chemical company.

Harms added that this problem is not an acute one for him, because his employer is "well-above average" in its commitment to occupational safety. Yet, his point raises questions about what goes on at companies without such high standards.

David Moyer, senior industrial hygienist at Air Products and Chemicals Inc. of Allentown, Pa., agreed with Harms, adding that the situation is even harder when there is no TLV for a hazardous substance.

Changing the Process

In 1996, the American Petroleum Institute, the Synthetic Organic Chemical Manufacturers Association, the Chemical Manufacturers Association (CMA) and ORC launched an interindustry effort to develop a collaborative process for establishing new PELs.

According to ORC Vice President Frank White, the effort sprang from industry's frustration that the PELs process was going nowhere and concern that, under the Clinton administration, OSHA might suddenly come up with some new excessively stringent exposure limits with no industry input.

"It's not just that companies want PELs," White explained. "They want PELs according to a process that involves them to a greater extent than they have been in the past."

The ORC proposal calls upon OSHA to create a new PEL advisory committee that would develop and provide PEL recommendations to the agency. The committee would be composed of labor and industry stakeholders and would engage a contractor to manage, under OSHA's direction, the collection and dissemination of research information.

Consensus among interested parties throughout the process of setting occupational exposure limits is common in other nations, according to a 1993 study commissioned by CMA that looked at how 13 other countries handled the problem. One of the study's two key findings was that nations with the most successful processes "convened independent science and advisory groups that represented partnerships between government, labor and industry." These countries were able to set or update exposure limits within three to five years.

The U.S. process, by comparison, was characterized by the study as so adversarial as to make it very difficult to update exposure limits.

The Silence of the Lambs

Representatives from organized labor agree that PELs are out of date. Labor appears to be open to revamping the process. For now, the ergonomics proposal is sucking up nearly all of labor's energy, not to mention OSHA's.

"We would like to see OSHA's PELs updated," said Michael Wright, director of health, safety and environment for the United Steelworkers of America. "We don't think it's the highest priority, but it's certainly on the list."

Wright said ORC is on the right track with its proposal, but he is concerned that it is "quite resource intensive."

Frank Mirer, director of health and safety for the United Auto Workers, was more ambivalent. While he expressed a desire to work with those who recognize the need to update PELs, Mirer cautioned that any regulatory effort these days requires a massive amount of effort.

"If you've got to fight that hard," he said, "you've got to be fighting for something you really want, rather than something you'd just like to have."

Mirer said he always has been skeptical about whether the ORC proposal would result in PELs worth fighting for, but the absence of corporations with good ergonomics programs during the ergonomics public hearings this spring has increased his distrust of business.

"Given the 'silence of the lambs' in the face of what the Chamber [U.S. Chamber of Commerce] and NAM [National Association of Manufacturers] are doing, I'm wondering if it's possible for (business groups) to move on any regulatory issue."

PELs Prognosis

Last December, an industry group led by ORC met with OSHA Administrator Charles N. Jeffress to discuss ORC's proposal to speed up the PELs process.

In late February, Jeffress wrote White a letter stating that, "over the next few weeks," he would try to set up a meeting of stakeholders to discuss "ideas for pushing the PELs process forward." As of the end of March, that is where matters stood.

OSHA's Kent said she and Jeffress have spent some time developing a list of questions they want to pose to stakeholders at such a meeting. She added that she and Jeffress are "very serious" about wanting to move ahead with a meeting, and hope to hold it in May or June.

Kent said she likes the idea of a collaborative process, but in a possible reference to the reservations of unions and some businesses, she added, "We want to make very sure that all of our stakeholders are involved. That's the critical thing."

Since its defeat in court nearly 10 years ago, OSHA has not updated a single PEL, Kent said. The agency hopes to propose new exposure limits for glutaraldehyde, trimellitic anhydride, hydrazine and carbon disulfide by the middle of this year.

Because OSHA is not attempting to revise hundreds of chemicals at a time, this rulemaking is not expected to raise the legal problems of the agency's earlier effort. According to Mattheis, the four chemicals, chosen from an original list of 20, were selected primarily because OSHA feels they have the data to defend them successfully.

How and when the ergonomics proposal shakes out may have an important impact on the fate of ORC's effort. Given OSHA's stated interest in reforming its PELs process, the breadth and depth of business and labor support for the effort is probably the most critical factor in determining whether it will succeed.

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