FIVE GROUPS CHALLENGE OSHA INSPECTION PLAN

JOANNA RAMEY

WASHINGTON (FNS) -- Five industry groups are challenging the Occupational Safety and Health Administration here in court over a new workplace inspection program that is being called coercive and illegal.

Among the food industry sectors affected are grocery wholesalers, distribution centers of all types and membership warehouse clubs.

The Food Marketing Institute and Food Distributors International have joined the National Association of Manufacturers, the U.S. Chamber of Commerce and the American Trucking Association in a lawsuit to block the federal agency program, which is called the Cooperative Compliance Program. The suit was filed in U.S. district court here.

Known as the CCP, the initiative is touted by federal officials as being voluntary and bringing uniformity to enforcement of workplace safety regulations while reducing the risk of businesses being hit with violations and stiff fines.

Under the CCP, companies would agree to submit to initial OSHA inspections and accept any resulting agency changes to their inspection program. Businesses that agree to participate in the CCP reduce their chances by 70% of being subjected to rigorous OSHA reviews at least annually. Companies that don't participate in the CCP are guaranteed to be on the priority list for annual inspections.

However, FMI officials and other critics call the effort mandatory and therefore violative of federal regulation-making rules. That process requires lengthy public and government debate over whether a regulation is needed and in what form it should be imposed.

"This is clearly coercion and any attempt to call the program voluntary or cooperative is offensive," said Timothy M. Hammonds, president and chief executive officer of the Washington-based FMI.

After a trial run in Maine, a national CCP was announced late last year and its implementation has been delayed from Jan. 30 to Feb. 17. The program is designed to target 80,000 companies in manufacturing and 14 other sectors that the OSHA deemed to have a high incidence of work-related illnesses and injuries. Among these sites are all public warehouses, which include distribution centers of all kinds and warehouse-style retail formats like supermarket clubs and home improvement stores.

Also targeted are wholesalers of groceries, beer, wine and liquor and local trucking concerns.

Association officials are also fearful that the OSHA plans to use the CCP to develop an argument for why the agency should adopt ergonomic standards -- standards the agency has been trying to implement for years against congressional and industry opposition. Ergonomic standards would require companies to buy new equipment, adjust employee schedules and reconfigure workplaces to protect against worker injuries.

The OSHA already has the authority to impose these changes on a case-by-case basis as part of a company's "general duty" to protect against worker injuries. But specific ergonomic standards, if formally adopted, would lay down specific measures all companies must employ.

A one-size-fits-all ergonomic standard has been widely attacked by businesses, which argue that individual companies know best how to prevent worker injuries.

"Our big issue with OSHA has been ergonomics and it's been our feeling all along that with the CCP they are trying to justify an ergonomics standard," said Kevin Burke, vice president for government relations at Food Distributors International, Reston, Va.

Burke said the concept of the CCP is in keeping with industry calls to make the OSHA's mission less punitive and more focused on working with business to prevent worker injuries. But, he said, under the program it's difficult to judge how cooperative the OSHA might be in weighing companies' differing ideas about how to run a safe workplace.

In announcing the CCP in November, assistant secretary for the OSHA Charles N. Jeffress stressed the agency's desire to cooperate with business. However, he noted the two alternatives facing companies.

"This program offers employers a choice: partnership or traditional enforcement. It also enables us to focus our agency's resources where we can do the most good."

George Green, the FMI's vice president and general counsel, said the legal challenge to the CCP will be a lengthy process. At the outset, the associations are seeking a delay of the CCP until the case is heard. No court date has been set.

Also to be raised in the legal challenge is how the OSHA selected the 15 sectors on which the CCP is based. The associations challenging the program question the agency's data collection and how certain sectors are being lumped in the same category with others. For example, supermarket warehouse formats are being listed under the broader category of "public warehouses," which include lumber yards and various packing houses.

"We want to know, how did they pick the targeted industries," Green said.

Quentin Riegel, deputy general counsel of the Washington-based NAM, said the OSHA has done a poor job of educating companies about the CCP, despite OSHA meetings conducted throughout the country.