InsideHealthPolicy.com, July 16, 2002.

In an exclusive interview...AIHA's McCluskey Says Revision Of OSH Act Needed To Fix Rulemaking Process

The American Industrial Hygiene Association's (AIHA) new president says that in order to improve OSHA's rulemaking process, the OSH Act will have to be revised.

In an exclusive interview with Inside OSHA, Gayla McCluskey argues that "in the long term, [revising the OSH Act] will definitely be necessary" to fix the rulemaking process. McCluskey added that while AIHA's plan to update OSHA's permissible exposure limits (PELs) does not alter the current rulemaking process, in order to make the rulemaking process more efficient changes will have to be made to the OSH Act. The new AIHA president also said that the group is "thrilled" by Rep. Charles Norwood's (R-GA) interest in updating the PELs as well as the National Association of Manufacturers' (NAM) support of the effort.

McCluskey replaced former President Henry Lick on June 6. She has been a member of AIHA since 1980 and was formerly the group's vice president and director. Her term as president ends in June 2003.

The text of the interview follows.

Inside OSHA: AIHA has been a major player in the effort to update the PELs. What do you think of Rep. Norwood's interest in the issue and how will his input impact the success of your plan? How does NAM's support of Norwood's efforts factor into the debate?

McCluskey: I am thrilled to hear [that NAM is supportive] and we were also thrilled to hear that Rep. Norwood is interested in getting this off the dime, so to speak. I think most people in the safety and health profession, regardless of who they work for or which side of the aisle they sit on, agree that the PELs were based on 1968 numbers that were based on scientific studies done earlier, which is really a problem. I know that when OSHA tried to update them in 1989, the vast majority of the changes were pretty non-controversial. It really fell down to a handful of chemicals that caused that regulation to be thrown out. I am excited about it and I think there is a lot of energy out there; I am pleased to hear NAM is supporting it. We've been working in our little group to reach consensus and we pretty much have arrived there. We would be interested now in speaking with NAM and the [U.S.] Chamber [of Commerce] and other organizations and find out what their concerns would be.

Inside OSHA: Can you give me a brief outline of the consensus plan from the AIHA working group?

McCluskey: Basically, what we are looking at is pulling data together from the voluntary standards that exist right now and having that reviewed by an advisory committee as well as asking for input from industry in terms of the data they have. I come from the corporate side of the business and within the voluntary consensus process there isn't really a great opportunity for you to get your data submitted because a lot of it has never been published. So, we would want that information to be submitted also. Then it would be looked at and decisions would be made as to whether numbers were valid, supported scientifically and whether there was evidence that [the numbers] are feasible. For the ones that people are in agreement, we would have updated standards.

Inside OSHA: Is the voluntary standard setting process dead? Has the American Conference of Governmental Industrial Hygienists legal problems tarnished voluntary standard setting and rendered the threshold limit values irrelevant?

McCluskey: I don't know. Voluntary standards development is not only time-consuming but it is also expensive. I was surprised how much [the National Safety Council] has basically spent on the [American National Standards Institute (ANSI)] ergonomics standard, which they have been working on for several years. I think it is important to set guidelines of good practice for your profession and it is important that they be developed in an ANSI-like format, but how much further we get into actually becoming the secretary over various standards would be difficult for me to say right now. There is a need for voluntary standards because the government can't and shouldn't regulate everything by any means. But on the flip side, there is a need for governmental standards too because if you continue to rely on consensus standards only they become very important and more controversial and subject to challenge.

Inside OSHA: The rulemaking process is long and difficult to manipulate. Former AIHA President Henry Lick testified in front of Norwood's committee on the rulemaking process and voluntary consensus standards and he said that changes had to made in the OSH Act. Do you support that and what kind of reform is needed in the OSH Act to make rulemaking more feasible?

McCluskey: I think his exact quote was that the process was "broken." What we are looking at here is not opening up the OSH Act in the effort we are discussing right now. In the long term, that will definitely be necessary. But that is not what we are going for at this point in time and I think everybody is in agreement that we are not interested in opening up the OSH Act at this time.

Inside OSHA: In the long term, what kind of changes would you like to see? Would you like to see a more streamlined and easier standard setting process?

McCluskey: Absolutely, as long as its transparent, open and on public record. When we first started our conversations about a PEL update, and I think everybody still feels this way, we [wanted] to do it in two phases. Maybe we can raise the baseline in phase one and if we are successful then we can go forward with some different models for standard setting. One of our meetings last fall, we brought in a number of folks to talk about various [standard setting] models to just talk about options and to realize there are different models out there that are successful and could be worthy of consideration.

Inside OSHA: We've seen two regulatory agendas now that have been sparse compared to the Clinton administration. Labor sources argue that the Bush administration does not seem eager to do a lot of rulemakings. Where is OSHA headed under OSHA Administrator John Henshaw and the Bush administration?

McCluskey:I'll have to say first of all that we are thrilled to have John [Henshaw] heading up the agency. We couldn't have a nicer or more qualified person over there. Regarding the agenda, John [Henshaw] comes from the corporate world where you set out your performance objectives and you meet them. I know that is the way he is looking at the regulatory agenda. He keeps reminding people that the things on there are going to be finished. I think that is the basis for the more pared down regulatory agenda.

Inside OSHA: What do you think the primary role of OSHA's new ergonomics committee is and what kind of impact do you think it will have on the current debate? Will it be able to fill in the research gaps as intended by the agency?

McCluskey: I think the key thing is who they decide to put on the committee. AIHA has lent support to four people that have already submitted their nominations. I think it is important to have a balance of folks with specific expertise in the ergonomics area, but also some end users on there to bring us back into the real world.

Inside OSHA: What do you think AIHA's role, as a bipartisan professional group, is in the ergo debate? Will AIHA abandoned its calls for a standard?

McCluskey: We would obviously prefer to have a standard, but the political reality right now is that we're going to have guidelines. We're very interested in participating in what way we can, either nominating folks to the advisory committee or actually working on the development of industry specific guidelines.

Inside OSHA: AIHA supported the passage of the Breaux bill on ergonomics. What is AIHA's opinion on the future of the bill? Sources have indicated that it could be attached to the appropriations bill. However, Sen. Michael Enzi (R-WY) already said he would filibuster such a strategy. Where do you hope to see the Breaux bill go?

McCluskey: We support an ergonomics standard. We are supportive of Sen. [John] Breaux's (D-LA) effort in this area. Our one concern with the bill is the short time frame and whether or not that can be accomplished or not. I have not heard anything about the political issues surrounding it going to the floor or being attached to something else, so I can't comment on that.

Inside OSHA: Besides ergonomics, what other hazards should OSHA address?McCluskey: My personal opinion along those lines is to look at the health and safety programs standard. Obviously, that would affect every business in the United States and would pretty much lay out a basic health and safety program. That would be very worthwhile. There are other hazards out there that need to be addressed, but they are more finite.Inside OSHA: What is the future of AIHA and what are your goals?

McCluskey: I have some specific goals for the year and they really pertain to bringing the association back to focusing on its strategic plan. The last couple of years we have been pretty internally focused hiring a new executive director and voting on name changes to various things. We've abandoned our strategic focus, so I think it is important we begin a multi-year planning process, which will begin in August, and decide where we need to be and how we get there. Unfortunately, when you focus just on a one-year plan you never bite off the more difficult things because a lot of issues cannot be solved or accomplished in one year.

Inside OSHA: What are some of these issues and goals? What are you going to focus on and what do you think AIHA's role is?

McCluskey: We talked for a number of years about how our membership is broadly practicing in the safety and environmental arena, while most of our programming continues to focus on industrial hygiene. We need to expand our products and services to provide support to our members in day-to-day practice. Another issue we've talked about at length is out international role and what is our international opportunity as manufacturing goes overseas, what role are our members playing in protecting the health and safety of folks in various countries and what do we need to do for them in that area. I recently attended the American Insurance Association conference on mold and obviously that is another field of science that is not well formed right now. Our members have opinions on mold across the board from it being very bad to not being so bad at all. We have the expertise to kind of save the science and contribute the knowledge that we have now. I am afraid that if we do not step forward and do that it is going to be regulated on a state-by-state basis like asbestos and lead. Texas, because of all of the litigation and insurance claims down there, is really stepping up to develop some guidelines and I think it is important that we help participate in doing that.

Date: July 16, 2002 © Inside Washington Publishers
**The article must be accompanied by the follow language: This article originally appeared in InsideHealthPolicy.com, July 16, 2002. It is reprinted here with permission of the publisher, Inside Washington Publishers. Copyright 2002. All rights reserved.