Controversy Over Hired Ergonomic Witnesses Grows

Congressional opponents of OSHA's proposed ergonomic standard have\r\nevidently found a new weapon in the long-running battle to delay the\r\nrule: OSHA's rulemaking process.

Congressional opponents of OSHA''s proposed ergonomic standard have evidently found a new weapon in the long-running battle to delay the rule: OSHA''s rulemaking process.

Rep. David McIntosh, R-Ind., chairman of a House Government Reform subcommittee , is now accusing the Department of Labor (DOL) with interfering in his continuing investigation into the use of paid contractors in ergonomics rulemaking.

In the Senate, four Republican chairmen led by Sen. Fred Thompson, R-Tenn., have asked the General Accounting Office (GAO) to investigate the DOL contracts. Thompson asked for a speedy investigation in a June 29 letter to GAO, because he expects the ergonomics debate to heat up this fall as OSHA tries to finish the rule before the end of the year. Thompson chairs the Senate Government Affairs Committee.

McIntosh originally uncovered that DOL had spent at least $3.7 million in contract awards for the rulemaking, and that 28 witnesses had been paid $10,000 each for their testimony at the informal public hearings on the proposal.

In a July 5 letter to Secretary of Labor Alexis Herman, McIntosh said several contractors were directed by the DOL not to hand over documents on ergonomics rulemaking the congressman had requested.

The day after McIntosh obtained a subpoena most of the material was released to him.

McIntosh accused DOL of carefully "coaching" its paid witnesses on how to testify, thereby "unfairly turning its ergonomics rulemaking into an adversarial proceeding instead of a truth-seeking, scientific proceeding."

As of early August Herman had not replied to McIntosh''s letter, but OSHA Administrator Charles Jeffress did send a June 28 letter to the congressman that attempted to rebut the charge that it is wrong to use paid expert witnesses.

"As a general matter, OSHA''s use of expert witnesses and consultants is expressly authorized by Congress and has been approved of by the courts," Jeffress wrote. The practice has been recognized by the GAO and is consistent with OSHA''s procedures under four different Presidents, he added.

In fact, he argued, it could be argued that the use of paid expert witnesses makes OSHA''s rulemaking process more open than other federal agencies that use experts. Most other agencies ask experts to submit written testimony, but do not allow them to testify or cross-examined at public hearings.

One leading industry group opposed to the proposal was not convinced. The National Association of Manufacturers (NAM) poked a little fun at OSHA by submitting an invoice of $10,000 for the testimony of Patrick Cleary, vice-president for human resources policy.

"In the interest of fairness it would only seem right that OSHA pay witnesses who did not agree with its point of view," Cleary wrote in a letter accompanying the bill.

Cleary said he did not expect to be paid. OSHA had no formal comment on the letter.

Jeffress also defended the practice of coaching or preparing its witnesses to testify. "Due to the quasi-adjudicative nature of OSHA regulatory hearings, OSHA has a responsibility to prepare expert witnesses it has selected to present to the public the scientific and technical assumptions that undergird OSHA''s proposed standard."

Many observers at the public hearings were struck with how legalistic the procedure was, especially because the many lawyers hired by opponents of the rule cross-examined OSHA''s witnesses as if they were in a courtroom. Court challenges to the proposed rule are widely expected, and the informal public hearing provides the official record for any future legal proceeding.

In this context, McIntosh''s argument that it was OSHA that turned the ergonomics public hearings into an adversarial proceeding may not be persuasive.

But with the Senate following the congressman''s lead, it now appears that congressional opponents of the ergonomics rule have shifted their tactics: instead of attacking the substance of the proposal, they are now going after OSHA on its process.

by James Nash

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