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OSHA Ergo Panel Fields Questions as Hearings Begin

Labor and business representatives get first crack at OSHA panel during the first two days of hearings on the proposed ergonomics program standard.

The opposing views of big labor and big business marked the opening day of public hearings Monday in Washington, D.C. on OSHA's proposed ergonomics program standard.

As a panel of nine OSHA experts fielded questions from more than 20 business and labor representatives, it often seemed as though the agency was holding two hearings simultaneously on the controversial proposal.

Approximately 1,100 individuals have signed up to testify over nine weeks of public hearings in Washington, Chicago and Portland, Ore. In the first two days of the process, interested parties had the chance to fire questions at the people most responsible for writing the rule.

Heading up the OSHA panel was Marthe Kent, acting director of the directorate of health standards programs, who delivered a brief opening statement outlining the case for an ergonomics rule. Kent concluded by emphasizing that the standard was still only a proposal, and the agency welcomed public comments. "Our minds are open on all of the issues on the table," she asserted.

Asking questions first were employer groups, represented by attorneys in most cases. They slammed OSHA's public hearing procedure, attacked the proposed standard for being hopelessly vague and appeared to be primarily interested in building a case to take OSHA to court if the agency does not drop plans to issue a final rule.

Labor unions, on the other hand, sent a cadre of safety and health specialists to query the OSHA panel. They had a prearranged set of questions intended to shore up the disputed scientific basis for the proposal and to reveal possible loopholes in the proposal's protections for workers.

Quite a few non-OSHA eyebrows were raised early on when attorney Baruch Fellner pointed out that there was not a physician on the OSHA panel to defend the medical science of the proposal. OSHA, however, placed three lawyers on the panel, underscoring the litigious nature of the hearing.

Fellner, who represented the Rubber Manufacturers Association, spent much of his time questioning the procedural fairness of the hearing. He criticized OSHA for not telling the public who would be on the panel until the day of the hearing, making it harder for participants to prepare their questions.

Like other employer representatives, Fellner said the 11 days between the close of the comment period and the opening of the hearing was too little time for members of the public to read and digest the nearly 7,000 comments on the proposal the agency received.

Willis Goldsmith, a lawyer representing the U.S. Chamber of Commerce, focused on what he termed the vague and subjective meanings of crucial terms used in the standard, such as "duration," "over and over again" and "magnitude." In a legal and enforcement context, Goldsmith argued, those will become disputed terms.

Where Goldsmith saw vagueness, OSHA's senior lawyer on the panel, Joseph Woodward, saw "flexibility." Kent added that, in stakeholder meetings, employers repeatedly stated they preferred a performance standard to a specification standard.

Laboring for a Cause

Peg Seminario, director of AFL-CIO's Department of Occupational Safety and Health, was the first labor representative to speak. She began her questioning with the disputed scientific basis of the proposed rule.

OSHA's William Perry, health scientist for health standards, said that, in many ways, the scientific record for the ergonomics rule is better than for previous OSHA standards. "I think the literature base presented in our proposal ... is striking both in size and quality," he said.

Seminario's later queries were less OSHA-friendly as she questioned the decision to exclude the agriculture, construction and maritime industries from the proposed rule, noting that it took court action and an act of Congress to get the agency to include these industries in previous standards.

Other labor representatives called on OSHA to reconsider the "one-event trigger" that allows most employers to avoid having an ergonomics program until a worker is hurt and to revisit the incremental abatement of hazards provision.

In an interview near the end of the first day, OSHA Administrator Charles Jeffress told Occupational Hazards that, based on what he has heard, the single-incident trigger was one of three areas in which he expects to receive a great deal of discussion in the coming weeks. He indicated that the agency is being pressured in opposite directions on the matter.

The other two aspects of the proposal that Jeffress said have come up repeatedly in his conversations with stakeholders are the work restriction protection provision and the "when do you know you've done enough" problem.

As for the complaint that OSHA kept the identity of its panel members secret, Jeffress said: "This hearing is not about witnesses. This hearing is about the proposal. We have a responsibility to answer whatever questions people have about the proposal."

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