Solid Waste Industry Not Exempt from OSHA Ergonomics Rule

Brook Raflo

Unless blocked by federal courts or U.S. congressional action, a new ergonomics standard covering 6.1 million general industry worksites, including waste industry worksites, will take effect on Jan. 16, 2001.

On November 14, the U.S. Occupational Safety and Health Administration (OSHA), a branch of the U.S. Department of Labor based in Washington, D.C., published a rule in the Federal Register that seeks to reduce work-related musculoskeletal disorders (MSDs) triggered by repetitive actions, force, awkward postures and contact stress.

Common MSDs include tendinitis and back injuries. OSHA estimates the program will prevent 460,000 MSDs annually, saving employers an average of $9.1 billion in healthcare costs.

When the standard first was proposed in November 1999, representatives from the National Solid Wastes Management Association (NSWMA), Washington, D.C., and the Solid Waste Association of North America (SWANA) Silver Spring, Md., submitted written comments and oral testimony requesting an exemption from the regulations.

"Solid waste employers do not control the workplace sufficiently to address all ergonomic hazards," says David Biderman, general counsel for the Environmental Industry Associations, which oversees NSWMA. "For example, solid waste haulers do not control the weight of the trash at the curb, the size of the trash or the location of the trash."

Despite such arguments, OSHA did not exempt the waste industry from the rule. It did exempt the construction, maritime, agricultural and railroad industries.

Almost as soon as the final rule was announced, a coalition of business groups, headed by the Washington, D.C.-based U.S. Chamber of Commerce, filed suit to block the rule, calling it "unconstitutional, unscientific and unworkable."

Some business leaders estimate the rule could cost U.S. employers a total of $90 billion annually.

The National Association of Manufacturers (NAM), Washington, D.C., also is suing to block the rule, calling OSHA's rush to publish the regulations politically motivated.

"The breathtaking speed with which OSHA promulgated the ergo rule makes it clear ... this is not a health and safety rule, it's a political payoff," said Mike Baroody, NAM's senior vice president for policy.

But OSHA contends the rule is the result of 10 years of careful research, culminating in the review of more than 8,000 written public comments and more than 700 witnesses' testimonies.

A final decision on the lawsuits filed since the rule's publication is not expected until early 2002, Biderman says.

Meanwhile, NSWMA and others in the solid waste industry are considering whether to join the current lawsuits or file a separate legal challenge, according to Biderman.

Although the new rule does incorporate some of the changes business leaders have requested, including a 90-day cap on paid benefit requirements and specific tools to determine whether a job is "hazardous," the standard still is unsuitable for the waste industry, Biderman says.

"[OSHA's] one-size-fits-all mentality is not appropriate for the diverse ways that trash is collected in the United States," he says.

For example, although automatedcollection might decrease the risk of ergonomic injuries, automated trucks are not feasible in many neighborhoods, Biderman explains.

"In cities where cars park on the street, you can't get an automated truck down the street," he notes.

SWANA is disappointed that the waste industry was not exempted from the rule, says Carol Fearns, the organization's chief operating officer, "However, SWANA wants to be a part of the solution, not a part of the problem," she adds.

To this end, SWANA has formed a task force of association members to determine best practices for the solid waste industry. Fearns says SWANA will share these practices with OSHA, so that the administration can make better waste industry regulations in the future.

Meanwhile, the rule's fate is unclear. Disagreement over funding for the rule has stalled passage of the $350 billion labor-health-education spending bill in Congress. As of press time, Congress still had not enacted the bill, which was intended to fund the fiscal year that began on Oct. 1, 2000.