Masonry Magazine May 2005 Page. 10
Government Affairs
# Regulatory Mischief and the Meddlings of a Select Group
Marlan J. Marshall
MCAA, Director of Government Affairs
Birds fly, dogs bark, OSHA regulates. And in today's environment, the Occupational Safety and Health Administration (OSHA) performs like the Energizer Bunny, relentless in its energy and determination to regulate - and its batteries are seemingly recharged with every citation issued.
Unfortunately, in its zest to govern occupational hazards, the agency has often overlooked a few key provisions of an important law - the Administrative Procedures Act-that sets parameters for promulgating standards based on the principles of due process required by the U.S. Constitution. As a result of OSHA's "science be damned" attitude, it has been repeatedly sued by unions and corporations and, in most instances, rebuffed by the courts for its "ready, fire, aim" regulatory proclivities. The agency has a pattern of issuing notices of proposed rulemaking and seeks justification for the rule as an afterthought. This is a disastrous way to govern.
The first example that comes to mind: silica. In late 2003, OSHA issued a draft proposed standard governing workplace exposures to crystalline silica, a small business review panel was convened, and participants-including the Small Business Administration's Office of Advocacy-told the agency in no uncertain terms that it had to reassess the need for the standard, its feasibility and its economic impact. (At the time of this writing, OSHA is still working to complete its risk assessment for silica.)
Concerned about the potential harm of this proposed standard on the masonry industry, MCAA representatives met with the head of OSHA to highlight provisions we viewed as unworkable. We must have made some pretty convincing arguments because OSHA agreed to work with us that is, if we did a bit of its research for it. In other words, go out and collect the exposure testing data necessary to pinpoint certain tasks for which regulatory controls might be essential and demonstrate their success rate. Because as an industry we believe strongly in protecting our workers, MCAA agreed to generate data and offer recommendations to the Department of Labor that we knew would be feasible and effective.
This sounds fairly simple, but our efforts and those of OSHA are complicated by the work of outside groups such as the American Conference of Governmental Industrial Hygienists (ACGIH). Where OSHA establishes permissible exposure limits (PELs) for hazardous substances, the ACGIH sets threshold limit values (TLVs). Unfortunately, PELs and TLVs are viewed by many as essentially the same thing, with the main difference being that ACGIH tends to set these stringent limits without any consideration of technical, economic or analytical evidence.
Also, when it comes to setting new TLVs, ACGIH will allow the outside world to provide comments, but it has essentially made up its mind to embrace the concept by the time the proposed change is made public, and it is under no obligation to consider or respond to those public comments. As Pat Cleary from the National Association of Manufacturers (NAM) said on his manufacturers' weblog (www.blog.nam.org), "This is akin to self-regulating regulators run amok, romping drunk in a regulatory frenzy, dancing naked around the wooden totem of the god of regulation." Anyway, you get the picture.
ACGIH is not accountable to anyone, and yet OSHA incorporates its