Exposure limits are crowd-sourced, sometimes based on incomplete data, and often not developed within public view. Inevitably, as science, they are imperfect. But as metrics they have been benchmarks which have empowered environmental progress and provided a means for assessing that progress over the last several decades.

GOVERNMENTAL POWER
Both welcomed and feared, the power of government is a major topic in current political campaigns. One process in which governmental power is exercised is rulemaking, the process by which executive and independent agencies create regulations such as NESHAPs or exposure limits. Science-based regulations are crucial to environmental and occupational protection.

The governing law for Federal rulemaking is the Administrative Procedure Act (APA) of 1946. Basically, the Act defines and validates a process in which Congressional legislation (laws) is melded with opinion, science, fact, past experience, and political lobbying to produce a rule (a regulation). Because any new regulation is a compromise, the gestation period of new regulations is often measured in election cycles.

For exposure limits, for which the Department of Labor’s Occupational Safety and Health Administration ¹ (OSHA) is responsible, gestation is measured in decades. Time, of course, costs money: OSHA’s budget hasn’t allowed creation or review of more than a handful of regulations since 1990, and no financial help is in the offing.

While some actually prefer this frustrating pace of progress, others call it stagnation. Most involved parties favor some level of regulatory action, but can’t agree upon what that level should be.²

THE BYPASS
Meet the Federal Advisory Council on Occupational Safety and Health (FACOSH).³ Its membership numbers 16, equally divided among those who might be identified as “industrial management” and “labor.” Their role is to advise the Secretary of Labor. In December 2011, they did so.

FACOSH proposed asking the Secretary of Labor to ask the OSHA Administrator to bypass the APA.

The FACOSH proposal would require companies and their subcontractors, when they work on Federal projects,⁴ to adopt the most protective occupational exposure limits (OELs) issued by a research or regulating body. So it would exempt OSHA from compliance with APA limits.

Simply put, there would be no rulemaking regarding exposure limits used by any research or regulating body on Federal projects.

For Federal projects, OSHA would select the lowest values of exposure limit from among:

• The National Institute for Occupational Safety and Health (NIOSH)’s recommended exposure limits (RELs),
• The American Conference of Governmental Industrial Hygienists (ACGIH)’s threshold limit values (TLVs®)
• The American Industrial Hygiene Association (AIHA)’s workplace environmental exposure limits (WEELs®), and
• Others (Yours? Mine?)

When adopted by OSHA, none of these exposure limits would have been required to go through the rulemaking process specified by the APA.

GENERAL MACARTHUR
General Douglas MacArthur found it was possible to control whole networks of islands in the Pacific Theater of WWII by capturing just a few key islands. Similarly, FACOSH’s recommendation would enable the OSHA Administrator, Dr. David Michaels,⁵ to bypass the lengthy, expensive rulemaking process to create exposure limits. Dr. Michaels is believed to enthusiastically support this bypass approach.

But could one really believe that a two-tier⁶ set of exposure limits—one for Federal projects and another for private or state projects—could survive in the increasingly litigious field of safety, health, and environmental regulation? A major D.C. law firm has already indicated they are ready to challenge the FACOSH “bypass” recommendation.

GOOD GOVERNMENT?
Whether you consider the FACOSH bypass to be an exercise in responsible government, in that it can help break through regulatory gridlock, or an evasion of due process to avoid full scientific evaluation and public hearing, you have to accept that the responsible authorities are actually considering it.

I believe the FACOSH proposal is logical in that it bypasses a long-standing bottleneck which has long needed to be bypassed. But it’s short-sighted: We are a nation of laws, and the APA has been a law longer than this bottleneck has existed.

We need leadership in the lengthy, tedious, exacting (and expensive) process of developing regulations to protect workers by using exposure limits based on our best and current epidemiological data. We expect that our leaders—in this case, Dr. Michaels—will guide progress toward that end, rather than try to make new law while empowered only to make new regulations.

Driving 110 mph on the highway may seem like a good idea, but it’s against the law—and so is the FACOSH bypass.

SO THEN WHAT?
I have long believed that critics have a duty to propose “better” if they claim “not good enough.”

If the FACOSH bypass isn’t acceptable because it violates law (the APA), what then? Are we to deny workers the superior protection made possible by advances over the last two decades in the science and technology of industrial hygiene because we don’t have the resources to apply that progress and be compliant with long-standing law? Was this situation scripted by David E. Kelly?

BY THE WAY
Last fall the EPA declared that trichloroethylene is a “likely human carcinogen.” On February 10, 2012, EPA posted the same decision about perchloroethylene. It’s interesting that headline of their announcement assured readers that “public health protections remain in place.”

References

1. OSHA is supported, at least in theory, by the Department of Health and Human Services’ National Institute for Occupational Safety and Health (NIOSH). The latter is responsible for developing inform on and providing research, information, education, and training in the field of occupational safety and health. NIOSH does not directly issue regulations as exposure limits.
2. See the January 2011 issue about “OSHA’s Generic Escape from a Whipsaw?” which described the conundrum faced by OSHA and the January 2012 issue about “Can There Be Life Without Exposure Limits?” which described pressure by some industrial hygienists to accelerate the regulatory process.
3. http://www.osha.gov/dep/facosh/index.html.
4. This proposal would not apply to state-funded projects.
5. Dr. David Michaels, Assistant Secretary of Labor for OSHA, U.S. Department of Labor, 200 Constitution Ave., NW, Washington, DC 20210. He would be glad to hear your views!
6. Recall President Lincoln’s statement in an 1858 debate with Stephen Douglas that “a house divided against itself cannot stand.”

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John Durkee is the author of the book Management of Industrial Cleaning Technology and Processes, published by Elsevier (ISBN 0- 0804-48887). In 2012, Elsevier will publish his landmark book 21st Century Solvent Cleaning (ISBN 185617-4328 ). He is an independent consultant specializing in critical and metal cleaning. You can contact him at PO Box 847, Hunt, TX 78024 or 122 Ridge Road West, Hunt, TX 78024; 830-238-7610; Fax 612-677-3170; or jdurkee@precisioncleaning.com.