Congress Eyes Law to Update OSHA's PELs

July 18, 2002
Can a consensus be reached to update OSHA's Permissible Exposure Limits (PELs) for toxic chemicals? That was the question the House Subcommittee on Workforce Protections addressed - but did not completely answer - at a hearing this week.

The proposal under consideration calls for Congress to approve legislation giving OSHA the authority to do "generic rulemaking," so that hundreds of PELs could be updated and new PELs established for currently unregulated toxic substances.

In his opening statement Rep. Charles Norwood, R-Ga., who chairs the subcommittee, reiterated his support for developing "a widespread consensus to update PELs." But before moving forward with the initiative, he and other lawmakers on the subcommittee evidently want to be sure that stakeholders can overcome their long-standing differences and reach consensus on both the process and the substance of a sweeping PELs update.

In 1988, OSHA attempted to update 212 PELs and add 164 PELs for previously unregulated substances. While there was broad consensus at the time about the need for the action, OSHA' effort ended in failure. Concerned both about the process and the specific levels promulgated, industry and labor filed lawsuits and a judge ultimately overturned the regulation.

It was not clear from yesterday's hearing whether industry and labor have agreed to bury the hatchet and work together, but there appears to be momentum among some stakeholders - professional organizations, labor and industry - to reach agreement. There were also signs that the concerns of small businesses may be a major stumbling block to the initiative.

"The approach we're looking at now is coming to agreement by focusing on the easier PELs," explained Peg Seminario, the AFL-CIO's director of occupational safety and health. She said the union would be willing to defer action on some of the more controversial PELs and accept somewhat higher limits "in order to reach real agreement on some real hazards that affect real workers."

Seminario favored congressional action and said she thought it made sense to approach the problem in stages by addressing limits on the easier chemicals first in order to build trust, and tackling the tougher issues later.

There is widespread agreement among stakeholders that OSHA has been ineffective at updating existing and establishing new PELs.

Most of OSHA's PELs are based on research and consensus standards that are 30 to 50 years old, Seminario said. In addition, there are now 75,000 chemical substances in commercial use and in OSHA's 31-year history, it has enacted standards for only 29 new toxic chemicals.

Frank White of Organization Resources Counselors (ORC), an industry group made up of 170 mostly large companies, said his organization has long favored updating PELs, and until now has not supported congressional intervention in the process.

But ORC has shifted its position, and now believes Congress may need to become involved because, said White, "It is unlikely, at least in the near term, that the Department of Labor will give this issue the priority attention it deserves or will devote sufficient resources to an update effort."

The American Industrial Hygiene Association (AIHA) has been leading the new effort to reach consensus, and has provided the subcommittee with a draft containing some of the key concepts for the possible legislation.

Norwood asked whether the U.S. Chamber of Commerce (USCC) and other stakeholders could reach consensus on how many PELs needed to be updated.

"Yes, on some," Foulke replied, "but certain problems come into play." Some industries are operating with existing PELs, Foulke explained. He said he was concerned about small businesses that would have to buy expensive new equipment in order to comply with the lower limits of updated PELs.

Foulke was asked in an interview after the hearing whether the USCC supports an expedited PELs process.

"Yes," he replied, "provided the procedural safeguards of OSHA's current rulemaking are safeguarded."

At the end of the day, Norwood appeared optimistic about the chances for progress on PELs.

"I don't see how we can do any worse than what's already been done," he asserted. "I think we have some grown-ups who want to sit down and get something done."

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