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July 24, 2002

The Honorable Charles Norwood
Chair
Subcommittee on Workforce Protections
Committee on Education and Workforce
US House of Representatives
2181 Rayburn House Office Building
Washington, DC 20515-6100

VIA E-MAIL

Dear Chairman Norwood:

The American Society of Safety Engineers (ASSE) commends you for your leadership in ensuring that the Committee on Education and Workforce's Subcommittee on Workforce Protections is examining the issue of Permissible Exposure Limits (PELs). ASSE asks that the following comments be included in the record of the Subcommittee's July 16, 2002, hearing on whether consensus can be reached in revising PELs. Established in 1911, ASSE is the oldest and, with more than 30,000 members, by far the largest association representing safety, health and environmental professionals. As an accompanying fact sheet details, the Society is committed to supporting our members' professional efforts to improve the safety and health of American workplaces.

Consistent with our members' commitment to workplace safety, ASSE is deeply concerned that the PELs currently promulgated by the Occupational Safety and Health Administration (OSHA) have not been revised since 1971 and that the PELs set by the Mine Safety and Health Administration (MSHA) incorporate Threshold Limit Values established by the American Conference of Governmental Industrial Hygienists (ACGIH) in 1972 (coal mines) and 1973 (metal/nonmetal mines). These standards are grossly outdated for many of the covered toxic substances in light of the epidemiological evidence compiled over the past 30 years and other scientific information currently available. The National Toxicology Program and/or the International Agency for Research on Cancer have designated some of these substances as human carcinogens, yet the OSHA and MSHA PELs for them remain at levels injurious to human health.

Updating PELs

ASSE is convinced that enough credible scientific information is available to build consensus toward lowering the PELs for many substances and/or developing PELs for new chemicals that were not addressed in the OSHA and MSHA rules of the 1970s. Many employers are already voluntarily protecting workers at levels below the PELs, but others, due largely to the lack of agency guidance, are unaware that workers are not sufficiently protected at the currently legal limits.

While ASSE commends the Subcommittee for its attention to the PELs issue, PELs are only one component of the air contaminant issue. If the consensus process proves successful, the Society hope that the agencies and Congress will consider methods for ensuring more regular updates of PELs in light of the best available scientific evidence and feasible technology. Sources for such information should include the ACGIH TLVs, the Recommended Exposure Limits (RELs) set by the National Institute for Occupational Safety and Health, the National Toxicology Program, the International Agency for Research on Cancer, and other international and American consensus organizations that focus on occupational safety and health issues. Our member safety and health professionals tell us that they generally have a high level of confidence in the data and research used for establishing TLVs. Further, safety and health professionals, on occasion, have advised their respective employers and clients to use TLVs as a basis for compliance rather than a PEL when the TLV is more protective.

Of course, any modifications must be done in accordance with the Administrative Procedure Act (APA) and afford the regulated community both due process and the opportunity to seek judicial review of any new or modified rules. Therefore, ASSE recognizes that the TLVs and RELs set forth by agencies and organizations such as those listed above cannot be simply "incorporated by reference" as a matter of law, but must go through "notice-and-comment" rulemaking pursuant to the APA and the applicable organic statutes. We do encourage the agencies to consider the "direct final rule" approach, however, as this can expedite matters greatly while preserving the rights of all stakeholders.

New Compounds

It is imperative that contaminants also be reviewed that do not currently have PELs established by OSHA/MSHA. New technology is creating compounds that have not even been fully tested as to their health impact. It would make sense to extend any Advisory Committee's charter to review newly developed chemicals and compounds being used in American business and industry. In the alternative, ASSE would welcome the opportunity to partner with Congress and OSHA/MSHA on such a project.

Advisory Committee or Partnership

If steps are to be taken to improve the effectiveness of PELs as a tool to achieve greater workplace safety and health, ASSE believes it is necessary that a standing advisory committee or partnership be established that would make recommendations for revisions of current PELs. The members of such a committee or partnership would consist of qualified representatives of key stakeholders, including leading safety and health professional organizations like ASSE, employer groups, labor, and interested federal agencies such as OSHA, MSHA and NIOSH.

Conclusion

ASSE supports the initial utilization of a stakeholder consensus process to address non-controversial PELs and the establishment of new limits for a group of such toxic substances as a "pilot project" through the direct final rule process. ASSE has long supported the use of voluntary national consensus standards, and maintains that all applicable standards that are developed through an open, transparent process such as that set defined in OMB Circular A-119 be considered during this rulemaking initiative.

While this nation has done much to improve workplace safety, more is needed. Updating PELs is an achievable goal that can be accomplished in a timely manner based on information and methodologies that already exist or can be easily established. Furthermore, every time this issue has been raised in the past, a general consensus that updating PELs was necessary was readily achieved. There exists among most stakeholders the realization that revitalizing these standards will result in saved lives and improved health among American workers.

On behalf of our members, we again thank you for addressing this issue. Our members use PELs every day and understand only too well their importance and the difficulties that result from not updating them. If and when a standing advisory committee or partnership is established, as we urge above, their practical knowledge and experience would be an effective resource in helping bring PELs into the present. Should the Subcommittee hold additional hearings on the PELs issue, ASSE respectfully requests the opportunity to present further testimony.

Sincerely,

Mark D. Hansen, PE, CSP
President

cc: The Honorable Major R. Owens
Ranking Minority Member

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