Regulatory Whack-a-Mole

By March 24, 2005General

Birds fly, dogs bark, OSHA regulates. That’s the way of the world. In this regard especially, OSHA has been the Energizer Bunny, relentless in its energy and determination to regulate.

However, in its zeal, OSHA has fairly often overlooked some of the niceties of a thing called the law and more precisely a law called the Administrative Procedures Act. For their sins, OSHA has been repeatedly sued – by unions and companies alike – and rebuffed for their “ready, fire, aim” regulatory proclivities, science be damned.

One of the areas where OSHA has been most active (and unsuccessful) is in the setting of permissible exposure limits (PEL’s) and threshold limit values (TLV’s) for various substances. Time was when OSHA tried to jam a bunch of PEL’s en masse thru the regulatory process – or more accurately, around it – and were slapped down by the courts. Why? Because they hadn’t done their homework, didn’t have the science (anybody remember science?) on each one.

OK, so you’re OSHA. You eat, you breathe, you regulate. It’s what you do. Now you have these stupid courts getting on the way, telling you that you must – egad! – have the science on each substance before you regulate, a grim prospect indeed. What’s a regulator to do? Enter ACGIH.

The ACGIH is the American Conference of Government Industrial Hygienists. As its name might imply, it includes in its membership OSHA regulators. Its chairman is the OSHA Regional Administrator in Atlanta. Their idea of fun is getting together and setting PEL’s and TLV’s on their own, at levels that would be ideal, were they ruling the world – a world free of icky encumbrances like courts. Of course our little club doesn’t get to intersect with their little club, so there’s no opportunity for input. It is the antithesis of a self-regulating industry. It is regulators run amok, romping drunk in a regulatory frenzy, dancing naked around a giant wooden totem of the god of regulation.

Now here comes OSHA – ever the Coyote to manufacturing’s Roadrunner – and they’re at it again. Remember the First Commandment: Regulators Regulate. In the face of courts that actually force them to have the science before they regulate – science they don’t now have – OSHA has decided to borrow it from ACGIH.

You get the picture: Stymied in their repeated attempts to regulate, OSHA has gone to its alter-ego, a group unanswerable to God or to rational man, for its expertise, simply driving and supporting ACGIH efforts to adopt TLV’s that OSHA can then incorporate by reference into its Hazard Communications standard lock, stock and barrel. This is like a Banana Republic where the Commerce Minister, Finance Minister and Justice Minister are all the same guy. The ACGIH meets on weekends, gins up their wildest dreams, mails it to OSHA, then go back to work, put on their OSHA hats and go look to see what’s in the mail. Whaddaya know? It’s some new almost-science from the ACGIH! It is a perverse Trinity where the same regulators are the Father, Son and the Holy Ghost.