Has OSHA really shifted its target?

The federal safety agency says it is being evenhanded in choosing companies for inspections. But some critics charge that OSHA continues to set its sights on certain industries.

By -- Logistics Management, 4/1/2000

No one enjoys being inspected by a federal regulatory agency. Such inspections can be long, drawn-out affairs that disrupt the workplace and cost the company being investigated many thousands of dollars, even when no violations are found.

But regulatory-compliance inspections are a necessary means of identifying companies that violate health and safety regulations, and most people would agree that it's important to root out violators in order to prevent more accidents from occurring. What industry finds unacceptable are cases where responsible companies that are in compliance get hit with inspections.

That issue has been a hot topic among those who have been subject to safety inspections by the Occupational Safety and Health Administration (OSHA). Although that agency's administrators say they select companies for inspection based upon their individual accident rates, some observers believe OSHA continues to target certain industries-an approach that was banned by a federal court last year.

Participate or Risk Inspection

Until recently, OSHA scheduled its workplace inspections based largely on industry-specific injury and illness rates calculated by the federal Bureau of Labor Statistics. As a result, it didn't matter if an individual employer had a safe workplace or not. If that employer happened to be in one of OSHA's targeted industries, it was more likely to be inspected than a company in an industry that was not on OSHA's priority list.

In 1996, OSHA launched its Data Collection Initiative, which consisted of a survey that was sent to 80,000 employers in certain industries. The survey requested information about injury and illness rates. The following year, in November 1997, OSHA issued the "High Injury/Illness Rate Targeting and Cooperative Compliance

Program," commonly known as the CCP. At about the same time, the agency sent letters to 12,250 employers identified in the previous year's Data Collection Initiative that had reported lost workday injury/illness (LWDII) rates of 7.0 or higher. The letters asked them to participate in the CCP and presented them with two scenarios:

Companies that agreed to participate would be removed from OSHA's "primary inspection list." In return, those employers would agree to identify and correct safety and/or health hazards, involve workers in the identification and abatement of hazards, and implement comprehensive safety and health programs.

Companies that did not agree to participate would almost certainly face inspections.

It wasn't long before a number of business and industry groups challenged the CCP on the grounds that it was a "backdoor regulation." They contended that OSHA's action was equivalent to a "substantive ruling" and therefore

CCP should have passed through the "notice and comment" rulemaking process as required by the Administrative Procedure Act (APA).

The U.S. Court of Appeals for the District of Columbia agreed and struck down the CCP in April 1999 on the grounds that it did indeed violate the APA. OSHA elected not to appeal the ruling.

Suspicious of SST

A few days later, however, OSHA announced its new Site-Specific Targeting Plan (SST). The agency launched this program by sending letters to 12,500 workplaces that had reported an LWDII rate of 8.0 or more. Those letters included a list of the most frequently violated OSHA standards in each recipient's industry. The letters then urged employers to correct those hazards.

Next, OSHA targeted what it considered to be the 2,200 most dangerous workplaces-those that reported LWDII rates of 16.0 or above-and scheduled them to be inspected before the end of 1999. OSHA will target a second tier of dangerous workplaces for inspections this year.

Not everyone is convinced that OSHA has completely shifted its emphasis from targeting specific industries to targeting specific workplaces. Critics cite OSHA's historical approaches to inspections as evidence.

"In 1995, OSHA collected data and used that information to begin targeting 10 specific industries," says Michael Jenkins, former president and CEO of the International Warehouse Logistics Association. (He left that post in January.) One of those categories was "Motor Freight, Transportation and Warehousing." The courts struck down this industry-based approach.

According to Jenkins, OSHA's next initiative, the CCP, also relied on data collected from those 10 industries even though OSHA stated that it was targeting specific work sites without regard to industry. "Although the CCP was supposed to be based on individual work-site performance, it was actually based on performance compared with a set of industry norms," Jenkins says. The result was that companies that had good safety programs were inspected anyway. "We had members all over the country targeted for CCP who had zero incidents in the previous 12 to 24 months," he says.

In Jenkins' view, SST inspections that are based on work sites' individual safety performance are entirely appropriate. "I think everyone supports the idea of targeting work sites with repeated safety problems," he notes. If, however, the SST inspections result from OSHA's targeting certain industries and the agency ends up inspecting safe, compliant work sites, that would not be appropriate, he says. "When OSHA says it is limiting itself to SST inspections of work sites with injury/illness rates of 16 and above, I would hope this would be the case. However, past performance would indicate otherwise."

Another observer who questions OSHA's methods is Stuart Flatow, director of occupational safety and health for the American Trucking Associations in Alexandria, Va. "While an injury/illness rate of 16 is considered [to be] very high for some industries, it may not be so high in other industries. For example, in trucking and warehousing, where there is a lot of materials-handling work, you would naturally expect to have higher injury/illness rates. So although I can't say for sure, it does appear that OSHA is still targeting certain industries."

Flatow also is concerned about OSHA's "one size fits all" approach to targeting work sites. He says he has argued with OSHA officials that when looking at incidents in the trucking industry, they should differentiate between injuries that occur at the driver's fixed facility and those that occur away from that facility-at a shipper's loading dock, for example. "Currently, all of these injuries, regardless of where they occur, must be recorded on the OSHA 200'log," he says. "I agree that these should still all be recorded, but the injuries that occur away from the facility should not be used for targeted enforcement purposes."

Industry studies have shown, Flatow continues, that 60 to 70 percent of drivers' injuries occur when they are required to load or unload freight at shippers' facilities. If the majority of injuries occur at customers' facilities, he contends, then it doesn't make sense to target a specific trucking company work site under the SST program. "The drivers' employers don't have control over those facilities," Flatow says, "and they don't have control over the safety programs there."

William Atkinson is a freelance writer specializing in ergonomics and occupational safety issues.

A Proactive Approach to OSHA Inspections