NAHB, CISC Staunchly Oppose OSHA Streamline of PEL Rulemaking

Last year, the U.S. Department of Labor’s Occupational Safety and Health Administration announced that it wanted to talk to industry representatives about how to prevent work-related illness caused by exposure to hazardous substances. The first stage was a request for information on managing hazardous chemical exposures in the workplace and updating permissible exposure limits (PEL).

OSHA’s PELs — regulatory limits on the amount or concentration of a substance in the air — are intended to protect workers against potential adverse health effects. Ninety-five percent of OSHA PELs have not been updated since their adoption in 1971. It’s expensive and time consuming to issue new exposure limits or update existing workplace exposure limits because courts typically require complex analyses for each proposed PEL.

OSHA is seeking public comment regarding current practices and future methods for updating PELs, as well as new strategies for better protecting workers from hazardous chemical exposures.

Specifically, the agency wants suggestions on streamlined approaches for risk assessment and feasibility analyses and alternative approaches for managing chemical exposures, including control banding, task-based approaches and informed substitution.

Recently, the Construction Industry Safety Coalition (CISC), of which NAHB is a member, submitted comments in response to the agency’s request, strongly opposing any change that would deviate from the “substantive and procedural requirements for rulemaking set forth in the Act (Occupational Safety and Health Act).”

“The CISC strongly objects to any effort by OSHA to short-cut the Act’s requirements related to rulemaking or any other legislative reviews mandated by Congress,” the letter said.

The coalition reminded the agency that the rulemaking requirements and process ensure that OSHA comprehensively evaluates the need for, and potential impact of, a rule on employers and employees.  It also provides interested parties opportunities to speak directly to the agency on issues of risk and feasibility.

This is especially important for the construction industry, the comment letter said, because control measures to protect employees from health hazards in the general industry environment do not always translate into the construction environment, where work practices, control measures, and environmental conditions are highly variable.

Costs of proposed rules may disproportionately affect construction companies, which are predominately comprised of small employers, the comment letter said.

CISC recommended OSHA’s approach to technological and economic feasibility analysis continue to abide by several key principles:

  • Gather as much data and information as possible to accurately characterize baseline exposures and the effectiveness of control measures. There is no substitute – particularly in construction – for OSHA to actually look at exposures on a construction worksite and how controls impact those exposures.
  • Validate any model used to enhance the agency’s technological feasibility analysis — before putting it to work. Models that have not been validated serve as little more than unsupported assumptions for feasibility.
  • Present any models used to demonstrate that a proposal is technologically feasible to stakeholders as part of a proposed rule. Stakeholders must be given an opportunity to comment on it.
  • Continue to assess costs and economic feasibility on small entities. As OSHA knows, the impacts of its rules differ significantly depending on the size of the company. Larger businesses are often more able to absorb regulatory burdens in their operations.
  • Analyze economic feasibility in more detail. For the construction industry, analyzing economic feasibility at an aggregate level is not helpful in assessing the cost and economic impacts of a rule on employers. Large, aggregated industry groupings lump construction industries that are highly affected with those that are unaffected, which garners skewed results.

While CISC is not necessarily opposed to control banding and task-based exposure assessment and control in its health standards, it remains concerned regarding how these approaches would be accomplished in real life.

For additional information, contact Rob Matuga at 800-368-5242 x8507.

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