Where have all the standards gone?

May 11, 2000
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You probably didn't notice, but in April OSHA officially changed the status of its ergonomics standard-setting effort. The ergo rule has been moved on the agency's regulatory calendar from the 'proposed rule stage' to 'long-term action' item. There's no timetable for further work. It resides now in a regulatory twilight zone alongside plans for an indoor air quality standard, another issue relegated to 'long-term action.'

This is just the latest example of the twisting, tortured, one-step-forward, two-steps-back process that dogs standards-setting. Fixing the process is one of OSHA chief Charles Jeffress's top priorities. But Jeffress's spokesman, Stephen Gaskill, says his boss needs more time to develop a plan. "It's Charles's desire to fix the rulemaking process, but at this point it's premature to say anything," says Gaskill. "There's really nothing in place."

Exhibit A

Many safety and health professionals can't envision a plan that would work. They believe the process is so stifled by internal reviews and external politics that it's beyond fixing. Exhibit A in their argument is the ergonomics standard. Work-related musculoskeletal disorders first came under OSHA's scrutiny in the 1980s. In 1992, the agency gave 'advance notice' that it would propose a rule. Six years later, there's no timetable for issuing that proposal.

Many OSHA standards are in limbo because the agency simply doesn't have the manpower and money to address them--but that hasn't been the case with ergonomics. In its attempt to write a rule OSHA has: requested public comments; analyzed scientific literature; conducted a telephone survey of more than 3,000 worksites regarding their current practices to prevent work-related musculoskeletal disorders; conducted numerous site visits to facilities with existing programs; held numerous stakeholder meetings on the possible contents of a standard; issued a draft of proposed regulatory text and supporting documents for public comment; sent officials to professional conferences to discuss plans and critical issues; held an ergonomics summit meeting in Chicago to hear industry best practices and the views of business and labor interest groups; brought experts in the field to Washington to help write the standard and field-tested certain possible requirements.

All these moves have succeeded in pleasing no one. Unions fault OSHA for being too accommodating and suffering from paralysis of analysis. Business groups complain that OSHA is merely going through the motions with 'outreach efforts;' that officals actually have very rigid views about how to write an ergo rule.

Labor's impatience and business's lack of trust are only two potholes on the road to setting standards. A major barrier is the complexity of the issues OSHA is trying to regulate. Consider these stakeholder comments (taken from OSHA's web site) regarding an ergonomics rule:

  • How will OSHA account for home computer use?

  • OSHA should address vision problems.

  • OSHA should address the psychosocial component of musculoskeletal disorders.

  • The standard should be as broad as possible.

  • Coverage should be limited to areas where data show a clear correlation between risks and solutions.

  • How will OSHA decide who and what is covered within manual handling operations?

  • OSHA should encourage consulting and outreach.

  • Stress enforcement.

Given these diverse opinions, plus political pressure from Republicans in Congress to go slow (if at all) in addressing ergonomic-related hazards, OSHA watchers predict it will take years for a standard to be finalized.

Whatever happened to ...

But as safety and health pros know, ergonomics is just one issue where standards-setting has bogged down. Three other well-known cases illustrate the problems plaguing rulemaking:

Permissible exposure limits: Much of U.S. industry still uses federal exposure limits to protect workers from air contaminants that are based on research conducted in the 1950s and 60s, and that were codified in 1971. OSHA issued a final rule in 1989 that lowered existing limits for 212 toxic air contaminants, and set new PELs for 164 previously unregulated air contaminants. Three years later, those 428 new PELs were scrapped when a federal appeals court ruled that OSHA had not proven the new limits significantly reduced health risks, or that they were economically or technologically feasible.

Since then, OSHA has wrestled with how to satisfy the court's requirements. Its meager resources for conducting risk assessments and feasibility studies hamper efforts. A list of approximately 12 substances targeted for new PELs has been released by OSHA, and agency chief Jeffress wants to issue a proposal covering at least some of these substances by the end of 1998. But at the rate of setting PELs for 12 substances every 6 years, it will take OSHA about 214 years to regulate the 428 contaminants covered in the 1989 rule.

Injury and illness recordkeeping: OSHA began exploring how to improve the recordkeeping system in 1987. Discussions with labor, industry, academia, and state and federal agencies led to a report with specific recommendations. Agency officials made more than 100 presentations for employer groups, trade associations, safety councils, and union groups to explain their plans and solicit input. Nine years later, in 1996, OSHA issued proposed revisions to make recordkeeping easier and more informative. As with ergonomics, the extensive outreach effort did not diffuse controversy. More than 450 sets of comments were given to OSHA, along with 1,200 pages of input from nearly 60 presentations at pubilc hearings. The most politically potent attacks came from small business groups complaining of increased paperwork.

After more delays and questions about OSHA's commitment to getting a final rule out, the regulatory calendar calls for a final standard to be issued by March 1999, so employers can start using the new recordkeeping system in 2000.

Safety and health programs: Here the agency's work formally began in 1989, when it issued voluntary guidelines for management leadership, employee participation, hazard analysis, training, and program evaluation. OSHA has since tried to justify the need for mandatory requirements by using the argument that the country continues "to experience an unacceptably high rate of occupational fatalities, injuries, and illnesses."

It hasn't been an easy sell. Complexity again proves problematic: How does OSHA enforce management leadership? Define employee participation? What specific significant risk is addressed by safety and health programs? How do you prove programs reduce this risk? What about the cost to small businesses? How can OSHA craft a standard that's flexible enough for large businesses yet detailed enough for smaller businesses looking for guidance?

Many OSHA watchers contend it will take years to answer these questions. Yet Jeffress is on record as saying he wants safety and health programs to be a requirement for employers before he leaves his post at OSHA.

Few believers

Despite Jeffress's vow to try to fix standards-setting, every potential solution runs into problems. OSHA is being urged to stop wasting precious staff time and money on narrow issues. Yet broad issues such as ergonomics and safety and health programs are attacked as too costly. The idea of a tri-partite business-labor-government approach to rulemaking, which has been proposed to research and establish PELs, hasn't gotten off the ground. Labor fears that such an effort will be dominated by industry findings.

OSHA chief Jeffress must somehow build trust into the standards-setting process, something it has always lacked. Without it, the cooperation needed to push standards through Washington's cynical, confrontational climate will never develop.

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