Foulke: OSHA Transparent in Rulemaking Process

June 16, 2006
In his first congressional hearing as OSHA administrator, Edwin Foulke Jr. assured members of the House Workforce Protections Subcommittee on June 14 that OSHA's rulemaking process is transparent and that it does not enforce threshold limit values (TLVs) set by the American Conference of Governmental Industrial Hygienists (ACGIH).

The allegedly closed nature of the process in which the TLVs are set, in addition to OSHA's hazard communication rule's alleged practice of incorporating the TLVs without transparency, has driven committee chairman Rep. Charlie Norwood, R-Ga., to introduce legislation he claims re-establishes a transparent rulemaking process.

"I share your views on the importance of transparency process," Foulke told Norwood at the hearing. "I strongly believe that the notice and comment rulemaking process OSHA utilizes is a model of openness that includes full public participation."

Norwood "Deadly Serious"

In a subcommittee hearing held last April, Norwood took issue with the Department of Labor's dependence on non-consensus standards set by non-government organizations, specifically ACGIH, which has been accused of acting in secrecy when setting TLVs on exposure limits. During the June 14 hearing, Norwood reiterated his low tolerance for the practice, saying TLVs are adopted with little critical analysis other than a literature search.

"I declared war on the Department of Labor's reliance on non-consensus standards," he said. "I was not kidding then and I am deadly serious about it now."

Jonathan Caspar, vice president of environment health and safety with the Brick Industry Association and one of the witnesses at the hearing said he will extend full support to Norwood's legislation, as he feels that ACGIH "fails to take into account the particular conditions of our industry" by developing non-consensus standards for exposures to crystalline silica, a human lung carcinogen.

Such actions, he said, could harm the industry, as they can cause "unnecessary apprehension about the use of our product by our customers, and can adversely affect our ability to sell in a very competitive marketplace."

Foulke: TLVs Have No Impact on Enforcement

Foulke made little comment on the ACGIH's alleged practice of setting standards with little or no public input, but he did state that OSHA only viewed TLVs for informational purposes and that they were not used when citing a company for violations.

"The agency has promulgated a memorandum around to all OSHA area offices stating that TLVs should not be the basis for a citation," he said.

Opponents of the Norwood bill such as David Michaels, research professor and associate chairman of the Department of Environmental and Occupational Health at George Washington University, have countered that non-consensus standards are needed to ensure that employers and workers receive information about the risks associated with exposure to a product.

"This bill would directly bar OSHA and MSHA from complying with their statutory mandates to take into account the best scientific evidence in developing rules currently in process," Michaels said.

On the Senate side, Sen. Michael Enzi, R-Wyo., already has introduced legislation (S. 2066) that, if enacted, would prohibit OSHA from using TLVs or other non-consensus standards unless adopted in an open and fair manner.

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